/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220117.mbx C L A S S A C T I O N R E P O R T E R Monday, January 17, 2022, Vol. 24, No. 6 Headlines 1 PERCENT INC: Estevez Files ADA Suit in S.D. New York 67 LIQUOR SHOP: Contreras Files ADA Suit in S.D. New York ABBOTSFORD, BC: Slater Vecchio Files Flooding Class Action AFTERMATH SERVICES: Morey Granted Leave to Amend Class Complaint AGILIS ENGINEERING: Borozny Sues Over Illegal No-Poach Agreement AGILIS ENGINEERING: Lancaster Sues Over Illegal No Poach Agreement ALABAMA: Phase 2A Remedial Opinion Issued in Braggs v. Dunn, ADOC ANTHEM SPORTS: Contreras Files ADA Suit in S.D. New York APARTMENT INCOME: Tavarez Files ADA Suit in S.D. New York ARABICA LLC: Contreras Files ADA Suit in S.D. New York ASK TELEMARKETING: Jones Files FLSA Suit in M.D. Alabama AUTO LAUNDRY CAR WASH: Washers Claim Minimum Wages Sans Tips AVO SHOPPING COMPANY: Gupta Files Suit in S.D. New York BERKELEY LIGHTS: Kuznicki Law Reminds of February 7 Deadline BIOGIX INC: Weekes Files ADA Suit in S.D. New York BOARDWALK PIPELINE: Appeals Ruling in Bandera Master Suit BODYCOTE THERMAL: Perez Employment Suit Removed to C.D. California BROWN UNIVERSITY: Henry Sues Over Alleged Financial Aid Conspiracy C & C SLEEPS: Adams Sues Over Unauthorized Use of Photographs CANOPY GROWTH: Guerrero Files ADA Suit in S.D. New York CARBONITE INC: First Circuit Reverses Class Action Dismissal CHEGG INC: Kuznicki Law Reminds of February 22 Deadline CITIGROUP INC: N.Y. Court Certifies Direct Appeal in Bruce Suit CLEVELAND COUNTY, NC: Judgment on Pleadings in Conner Suit Vacated COUSINS MAINE: Guerrero Files ADA Suit in S.D. New York CROWN AWARDS: Contreras Files ADA Suit in S.D. New York CT WANHUA NOODLE: Lan Denied Overtime, Slams Tip Credit D&A SERVICES: Deutsch Appeals Dismissal in FDCPA Suit to 3rd. Cir. DANGO PRODUCTS: Weekes Files ADA Suit in S.D. New York DECATUR COUNTY, TN: Weaver Sues Over Sheriff Deputies' Unpaid Wages DIAMOND RESORTS: Bid to Dismiss Gonzalez Suit Granted in Part DIAMOND RESORTS: Summary Judgment Bid in Delara Suit Partly Granted DIAMOND RESORTS: Wins Bid for Summary Judgment in Gonzalez Suit DIET TO GO: Guerrero Files ADA Suit in S.D. New York DISCOVERY INC: Bernstein Liebhard Reminds of March 8 Deadline DISCOVERY INC: Lieff Cabraser Reminds of March 8 Deadline DPV TRANSPORTATION: Bid to Approve Settlement in Briggs Suit Denied ENSITE USA: Court Consolidates 12 Similar Cases, Including Brown ETHEREUMMAX: Kim Kardashian Named Defendant in Cryptocurrency Suit FEDERAL EXPRESS: Lundberg Sues Over Unlawful Labor Practices FIRST SOLAR: Bragar Eagel & Squire Reminds of March 8 Deadline FIRST SOLAR: Kuznicki Law Reminds of March 8 Deadline FISKARS BRANDS: Weekes Files ADA Suit in S.D. New York FLOWER CHILD: Weekes Files ADA Suit in S.D. New York FYRN: Tavarez-Vargas Files ADA Suit in S.D. New York GLASSO GROUP: Contreras Files ADA Suit in S.D. New York GOOGLE INC: Approval of Settlement in Street View Suit Affirmed GREAT DIVIDE: Guerrero Files ADA Suit in S.D. New York HAIER US: Claims Over Defective Oven Doors in Haft Suit Narrowed HIDRATE INC: Weekes Files ADA Suit in S.D. New York HOLLYWOOD, CA: Florida Appeals Court Flips Kellerman Suit Dismissal HOME DEPOT: To Pay Counsel $11.7MM in Fees; Banks' Suit Remanded HONDA MOTOR: Chimicles Schwartz Investigates Potential Class Suit ICON FOUNDATION: Court Denies Shin's Bid to Dismiss Counterclaim INTERFOCUS INC: Dos Santos Sues Over Unwanted Telemarketing Calls JAGR AMSTERDAM: Weekes Files ADA Suit in S.D. New York KALEIDA HEALTH: Cleary Sues Over Reduced Benefit Accruals' Rate LIN ROGERS: Heatley Wage-and-Hour Suit Goes to C.D. California LINKEDIN CORP: Court Grants in Part Bid to Dismiss TopDevz Suit MARATHON DIGITAL: Kirby McInerney Reminds of February 15 Deadline MCLEOD HEALTHCARE: Fails to Pay Proper Wages, Wilkes Suit Says MEDIFY AIR LLC: Saks Sues Over Mislabeling in Air Purifier MERCEDES-BENZ: Chimicles Schwartz Investigates Potential Class Suit META PLATFORMS: California Court Dismisses Facebook Securities Suit MOMENTIVE GLOBAL: Bushansky to Halt Merger, Seeks Financials MORAN TRANSPORT: Giddeon Hits Undisclosed Biometric Data Retention MT. NEBO: Fails to Properly Pay Servers, Adkins Suit Alleges NORTH BROWARD: Esterly Sues Over Illegal Access to Patients' Info NORTH BROWARD: Faces Hunter Suit Over Compromised Patients' Info NORTH BROWARD: Fails to Protect Patients' Info, Valencia Claims NTT DATA: Mandala Appeals Ruling in Motion to Vacate Judgment Bid OAK STREET: Glancy Prongay Files Securities Fraud Lawsuit OWLET INC: Kuznicki Law Reminds of January 18 Deadline PENNSYLVANIA: Benjamin Class Can't Intervene in Jennings v. Wolf PHH MORTGAGE: Final Approval Order Issued in Cabral Class Suit PNC BANK: Ratulowski Claims Refund for Car Protection Agreements PROCTER & GAMBLE: Aerosol Spray Products Contain Benzene, Suit Says RAYTHEON TECHNOLOGIES: Faces Suit Over Restriction to Skilled Labor REATA PHARMACEUTICALS: Filbert Sues Over Drop in Share Price ROADRUNNER TRANSPORTATION: Seeks Review of Remand Order in Jauregui ROTECH HEALTHCARE: Fails to Pay Proper Wages, Margrave Suit Says SNAP INC: Faces Buscaglia Suit Over 26% Decline of Stock Price TALIS BIOMEDICAL: Glancy Prongay Reminds of March 8 Deadline TALKSPACE INC: Bronstein Gewirtz Reminds of March 8 Deadline TALKSPACE INC: Misleads Stockholders to OK Merger Deal, Baron Says TALKSPACE INC: Robbins LLP Reminds of March 8 Deadline TALKSPACE INC: Rosen Law Firm Reminds of March 8 Deadline TEMPUR SEALY: Faces Myra Suit Over Illegal Background Check TENCENT MUSIC: Court Allows Gordon to File 2nd Amended Complaint TENNESSEE: Appeals Prelim. Injunction Ruling in R.K. ADA Suit UNITED BEHAVIORAL: $20.85M in Attys.' Fees & Costs Awarded in Wit UNIVERSITY OF NOTRE DAME: Named Defendant in Conspiracy Suit VICTORIA'S SECRET: Appeals Remand Ruling in Lizama Fraud Suit WINKING LIZARD: Cunningham Sues Over Unpaid Wages for Servers ********* 1 PERCENT INC: Estevez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against 1 Percent Inc. The case is styled as Arturo Estevez, individually and on behalf of all others similarly situated v. 1 Percent Inc., Case No. 1:22-cv-00298 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. 1 Percent -- https://1percent.com/ -- offers the best Rolling Papers, Prerolled Cones, Vaporizers, American pipes & more.[BN] The Plaintiff is represented by: Jarrett Scott Charo, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: jcharo@mizrahikroub.com 67 LIQUOR SHOP: Contreras Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against The 67 Liquor Shop, Inc. The case is styled as Yensy Contreras, individually and on behalf of all others similarly situated v. The 67 Liquor Shop, Inc., Case No. 1:22-cv-00291 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. 67 Wine & Spirits -- https://www.67wine.com/ -- is a wine shop in New York.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com ABBOTSFORD, BC: Slater Vecchio Files Flooding Class Action ---------------------------------------------------------- On November 14, 2021, the Sumas Prairie began flooding due to server rainfall. On November 16, 2021, the Sumas Lake Reclamation dike, which prevents water from flooding the prairie, breached in two locations. The residents of the Sumas Prairie, who allegedly were not adequately warned in time of the impending flood, were helpless as they watched their properties, livestock, and livelihoods wash away. The class action alleges that the City of Abbotsford, the Province of British Columbia, and the Fraser Valley Regional District had a duty to warn individuals in the Sumas Prairie of the predictable flooding, and failed to adequately do so. The lawsuit claims that if these bodies provided reasonable notice to the individuals in the Sumas Prairie, individuals could have prevented or greatly mitigated the severity of the damage incurred. In 2015, a report provided to the Province of British Columbia concluded that the vast majority of dikes in the province were not up to standard. In addition, the report found that the Sumas dike's crest elevation was "unacceptable" and that it would not be able to withstand flowing waters if the Nooksack River overflowed. The class action lawsuit alleges that all three defendants were aware of this report. The class action lawsuit was filed on behalf of two individuals whose farms and properties were destroyed in the flooding. Slater Vecchio LLP is looking to other individuals whose farms, livestock, and properties were damaged due to the November 2021 Sumas Prairie floods. If this includes you, please fill out the contact us page located at: https://www.slatervecchio.com/sumas-flooding-class-action/ About Slater Vecchio LLP Slater Vecchio LLP is a boutique law firm located in British Columbia. Over the past 20 years, Slater Vecchio has represented thousands of clients and has grown into one of the largest personal injury and class action firms in the province. [GN] AFTERMATH SERVICES: Morey Granted Leave to Amend Class Complaint ---------------------------------------------------------------- In the case, MAYA GRACE MOREY, CHRISTOPHER NOONER, LISA HENDRICKSON, EMILY HORTON, KYLIE THORNLEY, VICTORIA FERRANTE, MICHELLE DARDAR, HEATHER BARNES, MANUEL TORRES, and JORDANN WRIGHT, each individually and on behalf of all others similarly situated, Plaintiffs v. AFTERMATH SERVICES LLC, a foreign limited liability company; and DOES 1-20, Defendant, Case No. 2:21-cv-00885-BJR (W.D. Wash.), Judge Barbara J. Rothstein of the U.S. District Court for the Western District of Washington, Seattle, granted the Plaintiffs' Unopposed Motion for Leave to Amend the Complaint. On Dec. 30, 2021, pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, the Plaintiffs their Unopposed Motion to add additional plaintiffs and allegations. The Defendant does not oppose the Motion. Rule 15(a)(2) provides that a court should freely grant leave to amend a pleading when justice so requires. After considering the Motion, Judge Rothstein granted the Motion, finding that justice so requires. The Plaintiffs may therefore file the Amended Collective and Class Action Complaint attached as Exhibit 2 to the Declaration of Timothy W. Emery filed with the Unopposed Motion. A full-text copy of the Court's Jan. 5, 2022 Order is available at https://tinyurl.com/33j8k46s from Leagle.com. AGILIS ENGINEERING: Borozny Sues Over Illegal No-Poach Agreement ---------------------------------------------------------------- TARAH KYE BOROZNY, JED PERRON, and SAM MCCALLUM, individually and on behalf of all others similarly situated, Plaintiffs v. AGILIS ENGINEERING, INC., BELCAN ENGINEERING GROUP, LLC, CYIENT, INC., PARAMETRIC SOLUTIONS, INC., QUEST GLOBAL SERVICES-NA, INC., and RAYTHEON TECHNOLOGIES CORPORATION, PRATT & WHITNEY DIVISION, Defendants, Case No. 3:22-cv-00032 (D. Conn., January 7, 2022) is a class action against the Defendants for violation of Section 1 of the Sherman Act. According to the complaint, the Defendants entered into a No-Poach Agreement to restrict the hiring and recruiting of engineers and other skilled laborers working on aerospace projects among their respective companies. The No-Poach Agreement did reduce competition for engineers' services and, as a result, suppressed the job mobility of and compensation to the Plaintiff and Class members below the levels that would have prevailed but for the illegal No-Poach Agreement. As a result of the Defendants' alleged misconduct, the Plaintiff and Class members have suffered injury and have been deprived of the benefits of free and fair competition for their labor on the merits. Pratt & Whitney, a division of Raytheon Technologies Corporation, is an aerospace engine manufacturer, with its principal place of business in East Hartford, Connecticut. QuEST Global Services-NA, Inc. is an aerospace engineering firm, with its principal place of business in East Hartford, Connecticut. Belcan Engineering Group, LLC is an engineering services supplier, with a principal place of business in East Hartford, Connecticut. Cyient, Inc. is a technology company that provides outsource engineering services, with a principal place of business in East Hartford, Connecticut. Parametric Solutions, Inc. is an engineering services company that provides services in the aerospace industry, with its principal place of business in Jupiter, Florida. Agilis Engineering, Inc. is an engineering services company that provides services in the aerospace industry, with a principal place of business in Palm Beach Gardens, Florida. [BN] The Plaintiff is represented by: David S. Golub, Esq. Jonathan M. Levine, Esq. Steven L. Bloch, Esq. Ian W. Sloss, Esq. SILVER GOLUB & TEITELL LLP One Landmark Square, 15th Floor Stamford, CT 06901 Telephone: (203) 325-4491 Facsimile: (203) 325-3769 E-mail: dgolub@sgtlaw.com jlevine@sgtlaw.com sbloch@sgtlaw.com isloss@sgtlaw.com AGILIS ENGINEERING: Lancaster Sues Over Illegal No Poach Agreement ------------------------------------------------------------------ ROBERT LANCASTER and MAXWELL STINSON, on behalf of themselves and all others similarly situated, Plaintiffs v. AGILIS ENGINEERING, INC.; BELCAN LLC; CYIENT, INC.; PARAMETRIC SOLUTIONS, INC.; QUEST GLOBAL SERVICES-NA, INC.; AND RAYTHEON TECHNOLOGIES CORPORATION, PRATT AND WHITNEY DIVISION, Defendants, Case No. 3:22-cv-00051 (D. Conn., January 11, 2022) seeks treble damages under Sections 1 and 3 of the Sherman Antitrust Act arising from the Defendants' agreement to restrict hiring or "poaching" of one another's high skilled workforce. This antirust class action is brought on behalf of a proposed Class of engineers and other high skilled workers in the aerospace industry whose wages were suppressed by Defendants' No Poach Agreement. As a result of the alleged conduct, Pratt and Whitney, through its former Director of Global Engineering Sourcing, Mahesh Patel, took a central role in monitoring and enforcing the No Poach Agreement, including threatening to cut off Supplier Defendants from receiving future Outsource Aerospace Engineering Projects if they did not adhere to the No Poach Agreement. The Defendants are aerospace engineering firms.[BN] The Plaintiffs are represented by: William M. Bloss, Esq. KOSKOFF, KOSKOFF & BIEDER, P.C. 350 Fairfield Avenue Bridgeport, CT 06604 Telephone: (203) 366-4421 E-mail: bbloss@koskoff.com - and - Bonny Sweeney, Esq. HAUSFELD LLP 600 Montgomery St. #3200 San Francisco, CA 94111 Telephone: (415) 633-1908 E-mail: bsweeney@hausfeld.com - and - Hilary K. Scherrer, Esq. HAUSFELD LLP 888 16th Street NW, Suite 300 Washington, DC 20006 Telephone: (202) 540-7200 E-mail: hscherrer@hausfeld.com - and - Gary I. Smith, Jr., Esq. HAUSFELD LLP 325 Chestnut Street, Suite 900 Philadelphia, PA 19106 Telephone: (215) 985-3270 E-mail: gsmith@hausfeld.com - and - Joshua H. Grabar, Esq. GRABAR LAW OFFICE One Liberty Place 1650 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (267) 507-6085 E-mail: jgrabar@grabarlaw.com - and - Marc H. Edelson, Esq. EDELSON LECHTZIN LLP 3 Terry Drive, Suite 205 Newtown, PA 18940 Telephone: (215) 867-2399 E-mail: medelson@edelsonlaw.com ALABAMA: Phase 2A Remedial Opinion Issued in Braggs v. Dunn, ADOC ----------------------------------------------------------------- District Judge Myron H. Thompson of the U.S. District Court for the Middle District of Alabama, Northern Division, issued a Phase 2A Omnibus Remedial Opinion in the lawsuit titled EDWARD BRAGGS, et al., Plaintiffs v. JEFFERSON S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants, Civil Action No. 2:14cv601-MHT (M.D. Ala.). I. Introduction The Plaintiffs in the current phase of the longstanding class-action lawsuit are a group of seriously mentally ill state prisoners and the Alabama Disabilities Advocacy Program (ADAP), which represents mentally ill prisoners incarcerated in Alabama. The Defendants are the Commissioner of the Alabama Department of Corrections (ADOC) and ADOC's Interim Associate Commissioner of Health Services. They are sued in their official capacities for injunctive and declaratory relief. Four years ago, the Court found that ADOC failed to provide minimally adequate mental-health care to inmates in its custody, in violation of the Eighth and Fourteenth Amendments to the United States Constitution (see Braggs v. Dunn, 257 F.Supp.3d 1171 (M.D. Ala. 2017) (Thompson, J.)). Since then, the Parties have engaged in a series of court proceedings and negotiations to develop the relief necessary to remedy this constitutional violation. Certain remedies have been entered by agreement of the parties; others have been ordered following adversarial proceedings. And, most recently, the Parties presented additional evidence at a series of omnibus remedial hearings between May 24 and July 9, 2021. Judge Thompson notes that this Opinion, which the Court will issue in three parts, and the accompanying order represent the culmination of these efforts and mark the point at which the claims presented in this phase of the litigation transition into the period of monitoring. They establish an omnibus remedial framework that will govern this phase of the litigation moving forward--a remedy that addresses the serious constitutional violations found by the Court and that will be a durable solution for the monitors to help ADOC implement (Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 7711366, at *8 (M.D. Ala. Dec. 29, 2020) (Thompson, J.). While the Opinion is long, its length is due in significant part to the fact that in the years leading up to the omnibus remedial proceedings, ADOC addressed some of the problems identified in the liability opinion, Judge Thompson states. The Court's omnibus remedial order does not address certain violations identified in the liability opinion, and it was important to the Court that readers, including the Parties and the men and women incarcerated in ADOC facilities, understand why. The Opinion is also lengthy because many deeply serious problems remain unresolved, and the Court took seriously both its obligation to provide adequate relief and its obligation under the Prison Litigation Reform Act or PLRA to explain why it adopted each of the various remedial provisions it did. When Jamie Wallace took his own life during the course of the liability hearing, the Court called it "powerful evidence of the real, concrete, and terribly permanent harms that woefully inadequate mental-health care inflicts on mentally ill prisoners in Alabama." In the four years since, at least 27 more men in ADOC's custody have died by suicide--including one immediately after the conclusion of the omnibus remedial hearings, Judge Thompson says. The common thread among these tragedies is ADOC's lack of correctional staff, Judge Thompson observes. As its own mental-health vendor has noted: "No one disputes that the ADOC has a severe shortage of Correctional Officers (COs), as documented in an April 2019 US Department of Justice report as well as in multiple quotes from ADOC staff to the media," Wexford Health Response to the February 14, 2020 ADOC Letter on Performance Deficiencies (P-3323) at 2. This deficiency in correctional staff is nearly unchanged in its severity and impact since the Court's liability opinion four years ago. Indeed, ADOC has never reported an increase in the number of correctional supervisors in any quarterly correctional staffing report since it started filing them in 2018. And as at the time of the liability trial and opinion, the lack of correctional staff undermines the department's ability to meet the mental-health needs of its prisoners in numerous, insidious ways. Prisoners do not receive adequate treatment and out-of-cell time because of insufficient security staff to supervise these activities, Judge Thompson notes. They are robbed of opportunities for confidential counseling sessions because there are too few staff to escort them to treatment, forcing providers to hold sessions cell-side. They decompensate, unmonitored, in restrictive housing units, and they are left to fend for themselves in the culture of violence, easy access to drugs, and extortion that has taken root in ADOC facilities in the absence of an adequate security presence. The resulting sky-high rates of suicidality divert scarce mental-health resources from treatment provision to crisis management, exacerbating the deficiencies in care, Judge Thompson adds. Shortly after it released the liability opinion in 2017, the Court warned the Parties that, because staffing is so key to the provision of mental-health care, it must be addressed at the outset and fully remedied before almost anything else can be fully remedied (Phase 2A Revised Remedy Scheduling Order on Eighth Amendment Claim (Doc. 1357) at 4). The Defendants now ask to extend the deadline by which ADOC must attain an appropriate level of correctional staffing even further than previously agreed, from February 2022 to July 2025. It is against this backdrop--four years of severe understaffing and the likelihood of four more--that the Court considers what relief is necessary today to bring Alabama's prison system into constitutional compliance. II. Background In its June 2017 liability opinion, the Court found that ADOC's mental-health care system violated the United States Constitution in seven ways, including failing to identify prisoners with serious mental-health needs and to classify their needs properly; failing to provide individualized treatment plans to prisoners with serious mental-health needs; and failing to provide psychotherapy by qualified and properly supervised mental-health staff and with adequate frequency and sound confidentiality. The Court further found that persistent and severe shortages of mental-health staff and correctional staff, combined with chronic and significant overcrowding, are the overarching issues that permeate each of the above-identified contributing factors of inadequate mental-health care. Two years later, following additional briefing and argument, the Court issued a supplemental liability opinion, finding that ADOC has not been conducting adequate periodic mental-health evaluations of prisoners in segregation, and that this failure has contributed to the ADOC Defendants' violation of the Eighth Amendment, Braggs v. Dunn, 367 F.Supp.3d 1340, 1342 (M.D. Ala. 2019) (Thompson, J.). In the years following these liability opinions, the Parties agreed to a series of stipulations resolving most of the remedial disputes generated by the Court's liability findings, with a few significant exceptions that is discussed in this Opinion. For each of these agreed-upon stipulations, the Court held an on-the-record hearing, reviewing in detail and clarifying the terms of the agreement. At the request of the Parties, the Court then entered these stipulations as orders. At the time it entered these orders, the Court believed that the agreements met the "need-narrowness-intrusiveness" requirements of the PLRA. However, the orders generally did not contain findings that the provisions of the stipulations met the PLRA's requirements. In February 2019, the Defendants raised as an issue the possibility that these orders did not comply with the PLRA because they did not have PLRA findings. The Court then scheduled a set of evidentiary hearings to determine whether the stipulations met the 'need-narrowness-intrusiveness' standard of the PLRA. In the meantime, by agreement of the Parties, the Court found that each of the orders temporarily satisfied the requirements of the PLRA, pending a final determination after the scheduled hearings. These hearings were continued several times, Judge Thompson notes. During that process, the Parties successfully negotiated certain remedial agreements related to suicide prevention. After a lengthy period of mediation, the Parties ultimately informed the Court on March 20, 2020, that the negotiations on the remaining disputes had not been successful. The Court scheduled the hearings to begin on April 13, 2020. The day the Parties informed the court that their negotiations had failed, the Alabama State Health Officer suspended all public gatherings of 25 or more people due to the onset of the novel coronavirus (COVID-19) pandemic in Alabama and across the country. On April 3, the State Health Officer issued a stay-at-home order requiring every person in Alabama to stay at his or her place of residence except as necessary to perform essential activities. As the threat of COVID-19 became apparent, the Parties each moved to continue the April 2020 hearings. The hearings were eventually rescheduled to start on Sept. 14, 2020, with the duration of the temporary PLRA findings on the stipulated remedial orders extended to December 30, see Phase 2A Opinion and Order Regarding Long-Term Suicide Prevention Stipulations (Doc. 2977) at 5. Just before the hearings were set to begin, at the close of the Defendants' pretrial brief, the Defendants indicated an intent to move under the PLRA, 18 U.S.C. Section 3626(b)(1), (b)(2), to terminate some or all of the orders scheduled for consideration. The Court requested clarification of the Defendants' intent, and they filed a formal motion to terminate. The Plaintiffs moved that they be allowed to conduct immediate on-site prison inspections to develop the evidence of changed circumstances that would be necessary for the court to be able to consider the remedies under this standard and in this abbreviated timeframe. After the Court granted the Plaintiffs' motion for prison inspections, the Defendants withdrew their motion to terminate. While allowing the Defendants to withdraw their motion, the Court emphasized that it nevertheless took seriously the issues that had prompted the motion. The Court solicited proposals from the Parties about how to proceed in determining whether and to what extent the stipulated remedial orders complied with the PLRA. Judge Thompson explains that this omnibus remedial order would be entered with the need-narrowness-intrusiveness findings required by the PLRA, and the parties would be afforded discovery and the opportunity to present evidence as to whether the disputed remedies met that standard in light of the current conditions in ADOC facilities. In the time since the liability opinions, several of the most complicated remedial issues have proceeded on different tracks from the negotiation and stipulation process, Judge Thompson notes. Chief among these are the issues of correctional staffing, suicide prevention, and monitoring, each of which has been the subject of adversarial proceedings resulting in remedial orders, rather than negotiated agreements. In addition, the remedial issues related to segregation, units not designated as restrictive housing that nonetheless functioned as segregation, and inpatient treatment had each also been the subject of adversarial proceedings, but no remedial order had yet been issued when the shift was made to the present omnibus remedial process. Judge Thompson opines that the procedural circumstances differ for each of these issues in significant ways, including the fact that perhaps the least procedurally complex of the issues was the matter of the monitoring scheme that will apply to the claims in this phase of the litigation following the close of the remedial process. In addition, the issues of correctional and mental-health staffing, which the court found to be overarching issues that permeate each of the Court's liability findings were also the subject of a remedial opinion and order entered with PLRA findings after adversarial proceedings. Both Parties acknowledged that correctional staffing levels in particular have not significantly increased since the entry of the Court's understaffing remedial opinion and order. The question as to mental-health staffing was also whether the existing remedial order should be modified or ended. The remedies related to suicide prevention have been the subject of both adversarial proceedings and negotiated agreements. In May 2019, after receiving expert reports and holding a trial on the need for suicide prevention relief, the Court issued an opinion and order requiring ADOC to take various immediate steps to mitigate the risk of suicide faced by mentally ill prisoners in ADOC's custody. The Parties later reached a separate, long-term agreement on suicide prevention remedies. The Court approved this agreement but did not issue an associated injunction, instead putting the enforceability of its order on hold pending a determination of whether the long-term agreement complied with the PLRA. The short-term stipulations remained in effect pending the results of the omnibus remedial hearings. Finally, there were additional issues that had been litigated by the Parties but were under submission with the Court at the time of the omnibus remedial proceedings. These included the relief related to ADOC's segregation or restrictive housing units (also known as RHUs), non-RHUs that were nonetheless functioning as segregation units, and inpatient treatment. Because no relief had been entered by the Court as to these issues, the proposed remedial provisions related to these matters were situated no differently for purposes of the omnibus proceedings than were the proposed remedies related to the matters covered by the parties' stipulated remedial orders. III. Legal Standard The 2021 omnibus remedial hearings from which this Opinion results were directed toward determining the appropriate scope of prospective relief to be entered, so this particularized need-narrowness-intrusiveness mandate applied, Judge Thompson notes. Although the Parties agreed that the PLRA's need-narrowness-intrusiveness mandate applied, their proposed remedial orders each raised issues about how this standard should apply to various aspects of the relief under consideration, Judge Thompson finds. A. The "Current and Ongoing Violation" Standard The Defendants argued prior to the hearings and continued to argue during the proceedings that the court needed also to find a "current and ongoing violation" of federal law before entering relief. Although they recognized that no termination motion was pending at the time of the remedial hearings, the Defendants argued that the requirement of Section 3626(a)(1)(A) for the Court to find that the relief extends no further than necessary to correct the violation of the Federal right" and is the least intrusive means necessary to correct the violation of the Federal right incorporates the "current and ongoing" requirement. Judge Thompson opines that this argument is not without some persuasive force. But ultimately it cannot be squared with the text of the PLRA. The termination provision of Section 3626(b)(3) requires a court to find that the relief at issue remains necessary to correct a current and ongoing violation of the Federal right, and that it is narrowly tailored and the least intrusive means of doing so. That provision requires both a "current and ongoing violation" and that the relief meet the need-narrowness-intrusiveness finding as to that ongoing violation. B. Burdens of Proof The Plaintiffs seeking prospective relief related to prison conditions generally bear the burden of showing that their proposed remedies satisfy the need-narrowness-intrusiveness standard, Judge Thompson notes. The Plaintiffs here, however, argued that by agreeing to the terms of the various stipulated remedial orders that the Court had entered, the Defendants had either waived or forfeited their argument that any proposed relief that reiterated the provisions of these orders did not comply with the PLRA, or that the Defendants were estopped from making such an argument. The Court rejected the Plaintiffs' waiver, estoppel, and forfeiture arguments under the particular procedural circumstances presented here. It also rejected the Plaintiffs' fallback position that the Defendants' agreement to the stipulated orders shifted the burden of proof in the proceedings, placing the onus on the Defendants to show why the Plaintiffs' proposed remedies did not meet the need-narrowness-intrusiveness requirement. While the Court considered similarities between the terms of the stipulated orders and the Parties' proposed provisions, it was the Plaintiffs who were requesting that the Court enter their proposed remedies as orders; they, therefore, bore the burden of demonstrating that their proposals comported with the standards of the PLRA. C. The "Facility-by-Facility" Issue In the Defendants' pretrial brief and proposed omnibus remedial order, they raised the argument that a one-size-fits-all remedy remains inappropriate for the ADOC system because the major prison facilities present a diversity of circumstances, housing configurations, personnel and capabilities, and each facility possesses its own strengths and its own challenges. The Defendants made three main arguments in support of this position. First, that relief targeted at particular kinds of units (for instance, remedies pertaining to stabilization units) should not apply in facilities without such units. Second, that certain facilities have improved more than others in particular remedial areas (for instance, in mental-health staffing levels), so relief that is necessary at one facility on a specific issue may not be necessary at another. And third, that any new facilities ADOC may build in the coming years cannot be subject to whatever relief is set in place today because the Court cannot make findings as to the necessity, narrowness, or intrusiveness of imposing relief at those facilities until they are constructed. Judge Thompson finds that the first argument seems to be merely a matter of semantics. Any relief that prescribes the conditions or treatment that must be provided on a particular kind of unit plainly does not apply to other kinds of units and, therefore, has no bearing at a facility without such units. The second argument raises an evidentiary question about how pervasive the evidence of problems must be to support findings of systemwide deficiency and the need for systemwide relief. Judge Thompson holds that it is equally clear that systemic relief does not require a finding that every prisoner at every prison facility has been harmed by the policy or practice that is the subject of the Court's order. As to certain issues, however, the evidence may show either that the problems are sufficiently limited to particular prisons that only those facilities should be subject to relief in that area, or that particular prisons have sufficiently distinguished themselves from the remainder of the system that they should be excluded from the relief, Judge Thompson notes. In sum, while system-wide relief is typically necessary for the system-wide violations found in this case, the Court will limit relief to specific facilities when the evidence demonstrates that such limitation is appropriate. Similarly, the Court will consider whether the relief it has entered should apply to any new major facilities constructed by ADOC if and when such facilities are built, based on whether the evidence shows that the relief should include those facilities. D. Monitoring of the Proposed Remedies Although the monitoring process for the proposed remedies was not among the remedial matters at issue in the omnibus proceedings, the Defendants raised two arguments related to monitoring during the proceedings. First, their proposed order included a series of provisions that, if adopted, would establish a monitoring scheme different from the one put in place by the Court in its September 2020 monitoring opinion and order. Because the monitoring opinion and order were entered with PLRA findings and were not slated for re-litigation in these proceedings, the Court declined to adopt the Defendants' proposed monitoring provisions. Second, the Defendants argued that various provisions of the Plaintiffs' proposed order did not comply with the PLRA because they did not include restrictions on how the external monitoring team (EMT) might decide to monitor the orders. In effect, the Defendants took the position that proposed remedial provisions could comply with the PLRA only if the scope of discretion afforded the monitoring team as to how it would monitor those provisions was set forth in the provisions themselves and constrained by them. The Court, therefore, declined to re-evaluate how the provisions of the proposed omnibus orders might be monitored or to impose a requirement that the provisions themselves expressly prescribe their own monitoring regimes, both of which would amount to re-litigation of an issue recently decided by the court after extensive adversarial proceedings and with particularized PLRA findings. Judge Thompson holds that this concludes the first part of the Court's omnibus remedial opinion. Two parts follow. A full-text copy of the Court's Phase 2A Omnibus Remedial Opinion dated Dec. 27, 2021, is available at https://tinyurl.com/42674whr from Leagle.com. ANTHEM SPORTS: Contreras Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Anthem Sports, LLC. The case is styled as Yensy Contreras, individually and on behalf of all others similarly situated v. Anthem Sports, LLC, Case No. 1:22-cv-00297 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Anthem Sports -- https://www.anthem-sports.com/ -- is a leading online sports equipment store that carries thousands of brand name sporting goods products and much more.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com APARTMENT INCOME: Tavarez Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Apartment Income REIT Corp. The case is styled as Victoriano Tavarez, on behalf of himself and all others similarly situated v. Apartment Income REIT Corp., Case No. 1:22-cv-00260 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Apartment Income REIT Corp., known as AIR Communities -- https://www.aircommunities.com/ -- is a real estate investment trust headquartered in Denver, Colorado.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com ARABICA LLC: Contreras Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Arabica, LLC. The case is styled as Yensy Contreras, individually and on behalf of all others similarly situated v. Arabica, LLC, Case No. 1:22-cv-00295 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Arabica -- https://www.arabicacoffee.ae/ -- is simple and stylish with a Japanese minimalistic design, strong brand identity and high quality coffee beans that are roasted fresh in store.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com ASK TELEMARKETING: Jones Files FLSA Suit in M.D. Alabama -------------------------------------------------------- A class action lawsuit has been filed against ASK Telemarketing, Inc. The case is styled as Natasha Jones, Jonessa Jones, JaKaya Sanders, individually and on behalf of all other similarly situated individuals v. ASK Telemarketing, Inc., an Alabama Corporation, Case No. 2:22-cv-00020-JTA (M.D. Ala., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. ASK -- https://www.asktelemarketing.com/ -- is an inbound customer care center, specializes in bringing your customers a customer service experience seeped into hospitality.[BN] The Plaintiffs are represented by: Eric Collin Sheffer, Esq. WIGGINS CHILDS PANTAZIS FISHER GOLDFARB LLC 301 19th Street North Birmingham, AL 35203 Phone: (205) 314-0500 Fax: (205) 254-1500 Email: esheffer@wigginschilds.com - and - Kevin J. Stoops, Esq. SOMMERS SCHWARTZ PC One Towne Square; Suite 1700 Southfield, MI 48076 Phone: (248) 355-0300 - and - Trenton R. Kashima, Esq. SOMMERS SCHWARTZ PC 402 West Broadway; Suite 1760 San Diego, CA 92101 Phone: (619) 762-2125 AUTO LAUNDRY CAR WASH: Washers Claim Minimum Wages Sans Tips ------------------------------------------------------------ Lesly Pierre, Kassan Doucore, Aboubacar Doumbia, and Ali Touré, on behalf of themselves and all others similarly situated who were employed by Auto Laundry Car Wash Corporation, and the individual defendants, Plaintiffs, v. Song Rye Lyu, Nam Lyu, and Auto Laundry Car Wash Corporation, Defendants, Case No. 22-cv-00120, (E.D. N.Y., January 7, 2022), seeks redress for failure to pay the minimum wage, overtime compensation, spread-of-hours pay, money for "off-the-clock" work, unlawful taking of a tip credit and failure to provide the requisite notice and pay-related information, in violation of the Fair Labor Standards Act, the New York Labor Law, and New York's Wage Theft Protection Act. Defendants are in the car wash business where plaintiffs were car wash workers and employees. They allegedly failed to pay Plaintiffs the minimum wage for large employers in New York and the proper overtime rate calculated at one-and-one-half times their regular rate of pay. They allegedly failed to inform Plaintiffs that they were applying tips toward their minimum wage payment and also failed to provide wage statements. [BN] Plaintiff is represented by: Steven Arenson, Esq. ARENSON, DITTMAR & KARBAN 200 Park Avenue, Suite 1700 New York, New York 10166 Tel: (212) 490-3600 Fax: (212) 682-0278 Email: steve@adklawfirm.com AVO SHOPPING COMPANY: Gupta Files Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against The Avo Shopping Company (NY) Inc. The case is styled as Raveena Gupta, individually and on behalf of all others similarly situated v. The Avo Shopping Company (NY) Inc., Case No. 1:22-cv-00250 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Avo -- https://www.avonow.com/ -- is a complimentary personal shopping and delivery service.[BN] The Plaintiff is represented by: Andrew Shamis, Esq. SHAMIS & GENTILE, PA 14 NE 1st Ave., Suite 705 Miami, FL 33132 Phone: (305) 479-2299 Fax: (786) 623-0915 Email: ashamis@sflinjuryattorneys.com BERKELEY LIGHTS: Kuznicki Law Reminds of February 7 Deadline ------------------------------------------------------------ The securities litigation law firm of Kuznicki Law PLLC issues this alert to shareholders of Berkeley Lights, Inc. (NasdaqGS: BLI), if they purchased the Company's shares between July 17, 2020 and September 14, 2021, inclusive (the "Class Period"). Shareholders have until February 7, 2022 to file lead plaintiff applications in the securities class action lawsuit. Shareholders are encouraged to contact us at https://kclasslaw.com/cases/securities/berkeley-lights-inc-nasdaqgs-bli/, by calling toll-free at 1-833-835-1495 or by email (dk@kclasslaw.com). Kuznicki Law PLLC is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Kuznicki Law PLLC Daniel Kuznicki, Esq. 445 Central Avenue, Suite 344 Cedarhurst, NY 11516 Email: dk@kclasslaw.com Phone: (347) 696-1134 Cell: (347) 690-0692 Fax: (347) 348-0967 https://kclasslaw.com [GN] BIOGIX INC: Weekes Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Biogix, Inc. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Biogix, Inc., Case No. 1:22-cv-00287 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Amberen -- https://amberen.com/ -- legal name Biogix, Inc., is a science-driven company that develops, tests, manufactures, and distributes innovative products.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com BOARDWALK PIPELINE: Appeals Ruling in Bandera Master Suit --------------------------------------------------------- Boardwalk Pipeline Partners, LP, et al., filed an appeal from a court ruling entered in the lawsuit entitled BANDERA MASTER FUND LP, BANDERA VALUE FUND LLC, BANDERA OFFSHORE VALUE FUND LTD., LEE-WAY FINANCIAL SERVICES, INC., and JAMES R. MCBRIDE, on behalf of themselves and similarly situated BOARDWALK PIPELINE PARTNERS, LP UNITHOLDERS, Plaintiffs v. BOARDWALK PIPELINE PARTNERS, LP, BOARDWALK PIPELINES HOLDING CORP., BOARDWALK GP, LP, BOARDWALK GP, LLC, and LOEWS CORP., Defendants, Case No. 2018-0372-JTL, in the Court of Chancery of the State of Delaware. In April 2018, Boardwalk Pipeline Partners, LP announced that its general partner was seriously considering whether to exercise an option to purchase all the Partnership's publicly traded common units (the "Call Right"). The announcement caused the trading price of the common units to plummet. In July, the general partner exercised the Call Right and purchased the common units at what the Plaintiffs contend was an artificially depressed price. The Plaintiffs are former holders of common units who seek to hold the defendants accountable for the allegedly wrongful exercise of the Call Right. The Plaintiffs contend that the Defendants should be held primarily liable for breaching their fiduciary duties, their express contractual obligations, and their implied contractual obligations. The Plaintiffs contend that the Defendants who are not primarily liable should be secondarily liable for aiding and abetting the other Defendants' breaches of fiduciary duty and for tortious interference with contract. The Defendants now seek an appeal from: (i) the Memorandum Opinion issued on November 12, 2021 and (ii) the Partial Final Judgment Pursuant to Federal Rules of Civil Procedure Rule 54(b) and Order Staying Partial Final Judgment granted on December 2, 2021 of the Court of Chancery of the State of Delaware by Vice Chancellor J. Travis Laster. The appellate case is captioned as BOARDWALK PIPELINE PARTNERS, LP, BOARDWALK PIPELINES HOLDING CORP., BOARDWALK GP, LP, BOARDWALK GP, LLC, and LOEWS CORPORATION, Defendants-Appellants v. BANDERA MASTER FUND LP, BANDERA VALUE FUND LLC, BANDERA OFFSHORE VALUE FUND LTD., LEE-WAY FINANCIAL SERVICES, INC., and JAMES R. MCBRIDE, on behalf of themselves and similarly situated BOARDWALK PIPELINE PARTNERS, LP UNITHOLDERS, Plaintiffs-Appellees, Case No. 1,2022, in the Supreme Court of the State of Delaware, filed on January 3, 2022.[BN] Defendants-Appellants Boardwalk Pipeline Partners, LP, Boardwalk Pipelines Holding Corp., Boardwalk GP, LP, Boardwalk GP, LLC, and Loews Corporation are represented by: Daniel A. Mason, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 500 Delaware Avenue, Suite 200 P.O. Box 32 Wilmington, DE 19801 Telephone: (302) 655-4410 - and - Srinivas M. Raju, Esq. Blake Rohrbacher, Esq. Matthew D. Perri, Esq. John M. O'Toole, Esq. RICHARDS, LAYTON & FINGER, P.A. One Rodney Square 920 North King Street Wilmington, DE 19801 Telephone: (302) 651-7700 - and - Rolin P. Bissell, Esq. YOUNG CONAWAY STARGATT & TAYLOR LLP Rodney Square 1000 North King Street Wilmington, DE 19801 Telephone: (302) 571-6600 - and - Stephen P. Lamb, Esq. Andrew G. Gordon, Esq. Harris Fischman, Esq. Robert N. Kravitz, Esq. Carter E. Greenbaum, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 BODYCOTE THERMAL: Perez Employment Suit Removed to C.D. California ------------------------------------------------------------------ The case styled CRUZ PEREZ JR., individually and on behalf of all others similarly situated v. BODYCOTE THERMAL PROCESSING, INC. and DOES 1 through 100, inclusive, Case No. 21STCV42312, was removed from the Superior Court of California, County of Los Angeles, to the U.S. District Court for the Central District of California on January 7, 2022. The Clerk of Court for the Central District of California assigned Case No. 2:22-cv-00145 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code, the California's Business and Professions Code, and the federal Fair Credit Reporting Act including failure to pay overtime wages, failure to pay meal period premiums, failure to pay rest period premiums, failure to pay minimum wages, failure to timely pay final wages, failure to timely pay wages during employment, failure to provide compliant wage statements, failure to keep requisite payroll records, failure to reimburse business expenses, and unfair business practices. Bodycote Thermal Processing, Inc. is a provider of heat treatment and thermal processing services, with its principal place of business in Dallas, Texas. [BN] The Defendant is represented by: Ruth Zadikany, Esq. C. Mitchell Hendy, Esq. MAYER BROWN LLP 350 S. Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: rzadikany@mayerbrown.com mhendy@mayerbrown.com BROWN UNIVERSITY: Henry Sues Over Alleged Financial Aid Conspiracy ------------------------------------------------------------------ SIA HENRY, MICHAEL MAERLANDER, BRANDON PIYEVSKY, KARA SAFFRIN, and BRITTANY TATIANA WEAVER, individually and on behalf of all others similarly situated, Plaintiffs v. BROWN UNIVERSITY, CALIFORNIA INSTITUTE OF TECHNOLOGY, UNIVERSITY OF CHICAGO, THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, CORNELL UNIVERSITY, TRUSTEES OF DARTMOUTH COLLEGE, DUKE UNIVERSITY, EMORY UNIVERSITY, GEORGETOWN UNIVERSITY, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, NORTHWESTERN UNIVERSITY, UNIVERSITY OF NOTRE DAME DU LAC, THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, WILLIAM MARSH RICE UNIVERSITY, VANDERBILT UNIVERSITY, and YALE UNIVERSITY, Defendants, Case No. 1:22-cv-00125 (N.D. Ill., January 9, 2022) alleges the participation of the Defendants in a price-fixing cartel that is designed to reduce or eliminate financial aid as a locus of competition, and that in fact has artificially inflated the net price of attendance for students receiving financial aid, in violation of the Section 1 of the Sherman Act. The Defendants allegedly participate in the cartel claiming the protection of Section 568 of the Improving America's Schools Act of 1994. In collectively adopting this methodology, and regularly meeting to implement it jointly, the 568 Cartel has explicitly aimed to reduce or eliminate price competition among its members. As a result of this conspiracy, the net price of attendance for financial-aid recipients at Defendants' schools has been artificially inflated. In short, due to the conduct challenged herein, over almost two decades, Defendants have overcharged over 170,000 financial-aid recipients by at least hundreds of millions of dollars, says the suit. The Plaintiffs are Defendants' full-time undergraduate students. The Defendants are private, national universities that have been members of the 568 Cartel (most since 2003, and some not continuously) sand have been continuously ranked in the top 25 of the magazine "U.S. News & World Report" rankings for national universities since 2003.[BN] The Plaintiffs are represented by: Robert D. Gilbert, Esq. Elpidio Villarreal, Esq. GILBERT LITIGATORS & COUNSELORS, P.C. 11 Broadway, Suite 615 New York, NY 10004 Telephone: (646) 448-5269 E-mail: rgilbert@gilbertlitigators.com pdvillarreal@gilbertlitigators.com - and - Eric L. Cramer, Esq. Caitlin Coslett, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: ecramer@bm.net ccoslett@bm.net - and - Robert E. Litan, Esq. Daniel J. Walker, Esq. BERGER MONTAGUE PC 2001 Pennsylvania Avenue, NW Suite 300 Washington, DC 20006 Telephone: (202) 559-9745 E-mail: rlitan@bm.net dwalker@bm.net - and - Kyle W. Roche, Esq. Edward Normand, Esq. Eric Rosen, Esq. Peter Bach-y-Rita, Esq. ROCHE FREEDMAN LLP 99 Park Avenue, 19th Floor New York, NY 10016 Telephone: (646) 350-0527 E-mail: kyle@rochefreedman.com tnormand@rochefreedman.com erosen@rochefreedman.com pbachyrita@rochefreedman.com - and - Elizabeth A. Fegan, Esq. FEGAN SCOTT LLC 150 S. Wacker Dr., 24th Floor Chicago, IL 60606 Telephone: (312) 741-1019 E-mail: beth@feganscott.com C & C SLEEPS: Adams Sues Over Unauthorized Use of Photographs ------------------------------------------------------------- DANIEL ADAMS, individually and on behalf of all others similarly situated, Plaintiff v. C & C SLEEPS LLC, d/b/a Mattress by Appointment; J & L Mattress, LLC, d/b/a Mattress by Appointment; and STEVEN GILROY, Defendants, Case No. 2:22-cv-14011 (S.D. Fla., January 7, 2022) is a class action against the Defendants for violations of Copyright Act of 1976 and Right of Publicity, Fla. Stat. The case arises from the Defendants' alleged wrongful use, infringe upon, and otherwise profit from the photographs of the Plaintiff and Class members. The Defendants' unauthorized use of the Plaintiff's and Class members' images, likeness, and/or identity in order to market, promote, advertise, and/or generate events and activities concerning their business and/or profits violates the Plaintiff's and Class members' statutory right of publicity and infringes upon their copyright., says the suit. C & C Sleeps LLC, doing business as Mattress by Appointment, is a manufacturer of mattress, with its principal place of business located in Saint Lucie County, Florida. J & L Mattress, LLC, doing business as Mattress by Appointment, is a manufacturer of mattress, with its principal place of business located in Broward County, Florida. [BN] The Plaintiff is represented by: Jeremy D. Friedman, Esq. Paul A. Hankin, Esq. THE DOWNS LAW GROUP, P.A. 3250 Mary Street, Suite 307 Coconut Grove, FL 33133 Telephone: (305) 444-8226 Facsimile: (305) 444-6773 E-mail: jfriedman@downslawgroup.com phankin@downslawgroup.com CANOPY GROWTH: Guerrero Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Canopy Growth USA, LLC. The case is styled as Edelmira Guerrero, individually and on behalf of all others similarly situated v. Canopy Growth USA, LLC, Case No. 1:22-cv-00269 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Canopy Growth -- https://www.canopygrowth.com/ -- was the first federally regulated, licensed, publicly traded cannabis producer in North America, traded on the Toronto Stock Exchange as WEED.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: jmizrahi@mizrahikroub.com CARBONITE INC: First Circuit Reverses Class Action Dismissal ------------------------------------------------------------ Shearman & Sterling LLP, in an article for JDSura, reports that on December 22, 2021, the United States Court of Appeals for the First Circuit reversed the dismissal of a putative class action asserting claims against a software company and certain of its current and former executives under the Securities Exchange Act. Constr. Indus. and Laborers Jt. Pension Tr. v. Carbonite, Inc., -- F.4th --, 2021 WL 6062622 (1st Cir. 2021). Plaintiffs alleged that the company misleadingly touted the capabilities of a new cloud-based data backup product, even though defendants knew that the product did not work. The district court dismissed the action for failure to adequately allege scienter, but the First Circuit reversed, holding that plaintiffs adequately alleged scienter and that the challenged statements were actionable. The Court first assessed whether the challenged statements, which were made on conference calls with investors, were actionable statements of fact or nonactionable opinion statements. With respect to the CEO's statement that he believed the new product "improves our performance for backing up virtual environments and makes us really competitive," the Court explained that this statement could be "reasonably construed in context as a statement of fact" because it implied improved performance for a product that allegedly did not work at all. Id. at *4. Further, the Court noted that while the CFO presented one statement in the form of an opinion -- that the company had "put something out that we think is just completely competitive and just a super strong product" -- this statement also plausibly conveyed the following facts, one or all of which could be false if he knew that the product did not in fact work: that the CFO actually believed in the strength and competitiveness of the product; that his opinion fairly aligned with information he possessed; and that his opinion was based on reasonable inquiry. Id. The Court also rejected defendants' argument that the CFO's statement should be deemed a non-actionable "opinion about future potential," explaining that the statement was in the present tense and described the existing status of a product that had already been "put out." Id. The Court further concluded that the challenged statements were material, given that, for example, the CFO had described the new product as "a really important product for us" and the company's executives promoted it as enabling the company to compete in a major market segment that had been historically weaker for the company. Id. at *5. In addition, the Court held that plaintiffs adequately alleged scienter under the theories that, because senior executives stated that the product was important to the company, they would either have known that the product was not functional or were reckless in not knowing that it did not work. Id. at *5. The Court emphasized that the key allegation in the complaint was that the company thought the product was important enough to warrant attention from senior management, which supported a strong inference that the executives touting the product would have paid some attention to the product's status. Id. at *6. The Court further concluded that the complaint adequately alleged that these statements were knowingly false or required further investigation because "it does not require a PhD to know that a product cannot be 'super strong' if it has never once done what it is supposed to do." Id. The Court also noted that internal reports before the product launched made clear that it was not then functional. Id. While defendants suggested that the Court should not infer that the product was one to which they paid attention simply because they spoke about it on earnings calls, the Court rejected that contention and again emphasized that these statements were framed in the present tense suggesting that the statements were "not projections of hoped-for future performance" but instead "were flat-out claims about the product as it then stood." Id. [GN] CHEGG INC: Kuznicki Law Reminds of February 22 Deadline ------------------------------------------------------- The securities litigation law firm of Kuznicki Law PLLC issues this alert to shareholders of Chegg, Inc. (NYSE: CHGG), if they purchased the Company's shares between May 5, 2020 and November 1, 2021, inclusive (the "Class Period"). Shareholders have until February 22, 2022 to file lead plaintiff applications in the securities class action lawsuit. Shareholders are encouraged to contact us at https://kclasslaw.com/cases/securities/nyse-chgg/, by calling toll-free at 1-833-835-1495 or by email (dk@kclasslaw.com). Kuznicki Law PLLC is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Kuznicki Law PLLC Daniel Kuznicki, Esq. 445 Central Avenue, Suite 344 Cedarhurst, NY 11516 Email: dk@kclasslaw.com Phone: (347) 696-1134 Cell: (347) 690-0692 Fax: (347) 348-0967 https://kclasslaw.com [GN] CITIGROUP INC: N.Y. Court Certifies Direct Appeal in Bruce Suit --------------------------------------------------------------- In the lawsuit styled In re KIMBERLY BRUCE, Debtor. CITIGROUP INC. & CITIBANK, N.A., Appellants v. KIMBERLY BRUCE, Appellee, Case No. 21-CV-7455 (CS) (S.D.N.Y.), the U.S. District Court for the Southern District of New York issued an Opinion & Order: -- granting the motion for certification of direct interlocutory appeal to the Court of Appeals; and -- denying without prejudice the Appellants' motion for interlocutory appeal to the Court. Background In 2007, Appellee Kimberly Bruce incurred a debt with the Appellants. She fell behind on payments and the Appellants reported the account to credit reporting agencies as charged off. The Appellee eventually filed for bankruptcy and received a discharge on May 7, 2013. The Appellants were informed of the discharge. In September 2013, Appellee's credit report still reflected that her debt to the Appellants was "charged off," rather than discharged in bankruptcy, and in December 2013, she contacted the bank to ask that they remove the "charged off" notation in light of the debt's discharge. The Appellants did not ask the credit reporting agencies to remove the "charged off" notation from Appellee's report until March 25, 2014, after the Appellee had filed a motion to reopen the bankruptcy case in order to file a contempt motion against the Appellants. The Appellee asserts that the Appellants regularly leave the "charged off" notation on credit reports even after discharge in bankruptcy as part of a willful policy of attempting to lay a trap for Class Members until the point that they need an accurate credit report, and they cannot obtain such a credit report without paying on a discharged debt. The Appellee further asserts that the Appellants, knowing of the Bankruptcy Code's prohibition on contacting discharged debtors, undertake this conduct to coerce payment. On April 30, 2014, the Appellee initiated the Adversary Proceeding, and amended her complaint on Nov. 18, 2014. The Amended Complaint seeks to hold the Appellants in contempt of the Bankruptcy Court's May 7, 2013 discharge order, as well as discharge orders protecting similarly situated debtors issued by other bankruptcy courts throughout the country. The Appellee requests, on behalf of the putative class, declaratory and injunctive relief, as well as compensatory and punitive damages. The Appellants moved to compel arbitration on the Appellee's original adversary complaint, and the Bankruptcy Court denied the motion on Nov. 12, 2014. The defendants in two related cases--which the Appellee states are based on the same factual and legal claims--also moved to compel arbitration; the Bankruptcy Court denied those motions and all three were appealed to other judges of the Court. One of those cases was eventually resolved on March 7, 2018, with the Bankruptcy Court's decision to deny arbitration affirmed in Anderson v. Credit One Bank (In re Anderson), 884 F.3d 382 (2d Cir. 2018). The Bankruptcy Court's orders denying arbitration in this case and the other case on appeal were ultimately affirmed on June 16, 2020, in Belton v. GE Capital Retail Bank (In re Belton), 961 F.3d 612 (2d Cir. 2020). The Appellants unsuccessfully petitioned the Supreme Court for certiorari, and the case was returned to the Bankruptcy Court. On April 13, 2021, the Bankruptcy Court so-ordered a joint stipulation by the parties setting a supplemental briefing schedule on the Appellants' motion to dismiss the Amended Complaint and strike or dismiss the class allegations. After supplemental briefing, the Bankruptcy Court held a lengthy hearing on the Appellants' motion on July 22, 2021, and then ruled from the bench, denying the motion to dismiss in part and denying the motion to strike. The Bankruptcy Court held that it did not categorically lack authority to adjudicate class claims for violations of discharge injunctions nationwide (the "nationwide class issue"), and also held that the Appellee properly pleaded a cause of action for contempt under the standard established by the Supreme Court in Taggart v. Lorenzen, 139 S.Ct. 1795 (2019) (the "Taggart issue"). On Aug. 10, 2021, the Bankruptcy Court issued an Order formalizing its bench ruling. The instant appeal followed. The Appellants ask the Court to certify a direct appeal of the Bankruptcy Court's Order to the Second Circuit under 28 U.S.C. Section 158(d)(2), or in the alternative to hear their interlocutory appeal under 28 U.S.C. Section 158(a)(3). On Oct. 27, 2021, the Appellee filed a consolidated opposition to both motions, and the Appellants replied on Nov. 10, 2021. Discussion District Judge Cathy Seibel's analysis begins (and ends) with the nationwide class issue. The Appellants argue first that there is no controlling decision in the Second Circuit on this question of law. They contend that the Second Circuit's commentary in Belton, in which the court said it was leaving for "another day" the question "whether a nationwide class action is a permissible vehicle for adjudicating thousands of contempt proceedings," Belton, 961 F.3d at 617-18, demonstrates that Judge Drain's Order involves an unresolved question in this Circuit. The Appellants also point to Judge Drain's remarks in his bench ruling, including his observation that "dicta" in Belton "cast considerable doubt . . . on whether any bankruptcy judge other that the bankruptcy judge that issued the discharge order has the power to consider a claim for violation of a discharge." Judge Drain further stated that he "believe[s] at a minimum the appellate courts should hear that full rationale"--i.e., that because bankruptcy courts use a form statutory injunction, an adverse judgment in one court will in effect bind the losing party nationwide--"before they make a sweeping decision like this." Judge Seibel agrees that both Belton and the comments cited by the Appellants convincingly demonstrate that there is a lack of controlling authority on the issue on which the Bankruptcy Court ruled. Further, the Bankruptcy Court (in addition to the remarks highlighted by the Appellants) commented that cases supporting the Appellants' argument here raised a very close question; acknowledged, with regard to his analysis of the Bankruptcy Code as it pertains to this issue that it may be decided that none of that matters; and noted that this issue was by far the most difficult one to deal with. All of these statements, and Judge Drain's professed hope that the Second Circuit will (when squarely presented with the issue) consider the reasoning he set forth would not make sense if the Second Circuit had already spoken authoritatively on this question. Further, the Bankruptcy Court relied heavily on two opinions by Judge Stong of the Bankruptcy Court for the Eastern District of New York: Ajasa v. Wells Fargo Bank, N.A. (In re Ajasa), 627 B.R. 6 (Bankr. E.D.N.Y. 2021) and Golden v. Discover Bank (In re Golden), 630 B.R. 896 (Bankr. E.D.N.Y. 2021). These opinions provide a thorough discussion of the nationwide class issue presented here, and Judge Stong's conclusions primarily rely on the Bankruptcy Code itself and authority from other bankruptcy courts; neither Golden nor Ajasa purports to rely on controlling Circuit or Supreme Court precedent. That neither Judge Drain nor Judge Stong pointed to controlling authority from the Circuit or Supreme Court further supports the conclusion that there is no such authority on this question of law. Judge Seibel opines that the Appellee attempts to sidestep this straightforward conclusion by pointing to controlling authority on several more general questions: that bankruptcy courts have subject matter jurisdiction over all civil proceedings under the Bankruptcy Code, that claims for violation of a discharge injunction are "core proceedings" over which bankruptcy courts have subject matter jurisdiction, that bankruptcy courts generally have subject matter jurisdiction to issue sanctions, and that bankruptcy courts generally have jurisdiction to hear class actions under Rule 23. But none of these uncontroversial propositions address the issue raised by the Appellants and discussed at length by the Bankruptcy Court: whether these general grants of subject matter jurisdiction rebut the historical legal principle that only the issuing court has authority to enforce its injunction through contempt. On that specific issue, the Appellee has not presented controlling authority, Judge Seibel finds. The Appellee argues that 11 U.S.C. Section 105(a) is "broader than the All Writs Act" and provides "controlling authority for the Court's power to adjudicate the class claims presented here." But whether Section 105 can be read to authorize the Appellee's claims is specifically the undecided issue that the Second Circuit identified (but did not address) in Belton: "We question whether a bankruptcy court would even have jurisdiction to hold a creditor in contempt of another court's order. Most circuits that have considered the issue have rejected the notion." In short, Judge Seibel notes, it is clear from this Court's own review of the relevant case law, and from Judge Drain's analysis, that there is no controlling Second Circuit (or Supreme Court) authority on the question whether the Bankruptcy Court has power to adjudicate contempt claims based on the violation of other courts' discharge orders. Finally, although this is a determination for the Second Circuit to make, Judge Seibel notes that this is a case that seems appropriate for direct appeal under the guidance in Weber v. United States, 484 F.3d 154, 157 (2d Cir. 2007). Judge Drain squarely addressed this question, which he described as a "pure legal issue," and he was explicit that the issue was properly before him at the motion to dismiss stage and would not benefit from further discovery. Because Judge Seibel finds that at least one of the three circumstances enumerated in Section 158(d)(2)(A) is present--that the Bankruptcy Court's order involves a question of law as to which there is no controlling decision from the Second Circuit or the Supreme Court--the statute requires that the Court certifies the Order for direct appeal. The parties have raised several other arguments that Judge Seibel does not address here, including the propriety of permitting an appeal of this order in light of the lengthy delays that have already occurred in this case; whether this issue concerns a matter of public importance; whether immediate appeal would materially advance progress in this case; and whether direct appellate review is appropriate in cases where there is an inter-Circuit split of authority. Judge Seibel opines that these arguments can be made before the Second Circuit, which has discretion to refuse to hear the interlocutory appeal--discretion that the Court does not have in light of the conclusion that there is no controlling decision on the question of law presented by the Appellants. Conclusion For these reasons, the motion to certify the Bankruptcy Court's order for direct appeal is granted, and the Court certifies that the order "involves a question of law as to which there is no controlling decision of the court of appeals for the circuit or of the Supreme Court of the United States," 28 U.S.C. Section 158(d)(2)(A)(i). The motion for leave to proceed with an interlocutory appeal in the Court is denied without prejudice to renewal should the Second Circuit decline to accept the direct appeal. The Clerk is respectfully directed to terminate the pending motions, (ECF Nos. 3, 9), transmit a copy of this Order to the Second Circuit, and close the case. Should the Court of Appeals decline to accept the appeal, the parties may move to re-open the case in this Court. A full-text copy of the Court's Opinion & Order dated Dec. 27, 2021, is available at https://tinyurl.com/3zmj7wyv from Leagle.com. Benjamin R. Nagin -- bnagin@sidley.com -- Eamon P. Joyce -- ejoyce@sidley.com -- Jon W. Muenz -- jmuenz@sidley.com -- Sarah T. Goodfield, Sidley Austin LLP, in New York City, Counsel for the Appellants. Adam R. Shaw -- ashaw@bsfllp.com -- George F. Carpinello -- gcarpinello@bsfllp.com -- Boies Schiller Flexner LLP, in Albany, New York, Charles Juntikka , Charles Juntikka & Associates LLP, in New York City, Counsel for the Appellee. CLEVELAND COUNTY, NC: Judgment on Pleadings in Conner Suit Vacated ------------------------------------------------------------------ In the case, SARA B. CONNER, individually and on behalf of all others similarly situated, Plaintiff-Appellant v. CLEVELAND COUNTY, NORTH CAROLINA a/k/a Cleveland County Emergency Medical Services, Defendant-Appellee, Case No. 19-2012 (4th Cir.), the U.S. Court of Appeals for the Fourth Circuit vacated the district court's order granting judgment on the pleadings to the Cleveland County Emergency Medical Services. Introduction Plaintiff Conner appeals from the district court's order granting judgment on the pleadings to her employer, the Cleveland Emergency Services, which is a department of Defendant Cleveland County, North Carolina. Conner's complaint alleged that Cleveland County underpaid her for straight (i.e., non-overtime) hours worked during weeks in which she also worked overtime. At issue is whether the alleged underpayment is a violation of the overtime provision of the Fair Labor Standards Act, under the theory of "overtime gap time." Background For at least three years preceding the filing of her complaint in 2018, Conner worked as an emergency medical services ("EMS") employee for Cleveland Emergency Services. Pursuant to its Standard Operating Guideline, Cleveland Emergency Services assigns EMS personnel such as Conner to a 21-day repeating schedule in which each employee works a 24-hour shift followed by 48 hours off. The Standard Operating Guideline refers to personnel who work this schedule as "full-time EMS personnel." Individuals working the 24 on/48 off schedule will always work more than 40 hours per week, since they will have at least two (and sometimes three) 24-hour shifts each week. For the three-year period preceding the complaint, Cleveland County paid Conner under two pay plans. The first is the pay plan for county personnel administered by the county manager set forth in the Cleveland County Code of Ordinances. The Ordinances establish salary "grades" for all full-time county employees and lay out "steps" within each grade. All Cleveland Emergency Services full-time EMS personnel, like Conner, are paid on a semimonthly basis pursuant to the Ordinances. Each payment constitutes 1/24 of an employee's annual salary as specified by that employee's grade and step. Conner alleges the Ordinances constitute the valid employment agreement between herself and Cleveland County. In addition to the Ordinances, EMS personnel are subject to "policies and procedures for payment of wages and overtime" administered by Cleveland Emergency Services as set forth in its Standard Operating Guideline "Section 14-Pay Plan." In addition to the overtime rate, however, the Plan provides a "revised semi-monthly rate" for regular wages. Conner alleges that this "revised semi-monthly rate" unlawfully pays her regular wages using overtime compensation, resulting in overall lower pay. According to Conner, her annual salary established under the Ordinances represents her compensation for regular wages. Thus, she claims that for each semimonthly pay period, she should be paid regular wages—calculated as her salary established by the Ordinances divided by 24—plus any overtime as calculated under the Plan. At some point afterwards, Cleveland County changed its policy, effective Jan. 1, 2018, to "begin paying Cleveland Emergency Services full-time EMS personnel regular wages in an amount equal to 1/24 of their annual salaries as designated by their corresponding salary grade and step" in the Ordinances. Conner alleges, however, that Cleveland County should have paid EMS personnel in the same manner for the three years prior to Jan. 1, 2018. In June 2018, Conner filed an amended complaint bringing a putative class action. She alleged that Cleveland County violated the overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 201-219, by underpaying straight time wages. She claimed that, under the FLSA, an employer cannot classify wages as overtime without first paying all straight time wages due to an employee. Conner also asserted that Cleveland County breached its contract with its EMS personnel under North Carolina law by failing to pay them their full annual salaries as designated by their respective grades and steps. Ms. Conner sought to first bring her claim as a collective action under the FLSA, defining the class as "all current and former full-time EMS personnel who were employed during the period of Jan. 2, 2015 through Jan. 1, 2018," which she estimated to be between 50 and 75 people. She sought to bring her breach-of-contract action as a class action under Federal Rule of Civil Procedure 23, defining the class as "all current and former full-time EMS personnel who were employed during the period of Jan. 2, 2016 through Jan. 1, 2018." Cleveland County moved to dismiss Conner's complaint under Rule 12(b)(6) or, alternatively, for judgment on the pleadings under Rule 12(c). Cleveland County argued that Conner failed to affirmatively plead that she worked more than 40 hours in a given workweek such that she was entitled to overtime pay under the FLSA. It also argued that Conner's breach-of-contract claim should be dismissed because Conner failed to plead that Cleveland County had waived its governmental immunity from suit, and that Conner also failed to plead the existence of a valid contract to state a breach-of-contract claim. Ms. Conner's claims were first adjudicated by a magistrate judge, who provided a report and recommendation. Construing Cleveland County's motion as one for judgment on the pleadings under Rule 12(c), the magistrate judge recommended that the district court grant Cleveland County's motion and dismiss the complaint. The magistrate judge recommended that the district court dismisses Conner's FLSA claim and decline to exercise supplemental jurisdiction over Conner's North Carolina breach-of-contract claim. In the alternative, if the district court decided not to dismiss Conner's FLSA claim, the magistrate judge recommended denying Cleveland County's Rule 12(c) motion as to the breach-of-contract claim. In considering the magistrate judge's recommendation and the parties' objections thereto, the district court analyzed Conner's claim under the Fourth Circuit's decision in Monahan v. County of Chesterfield, 95 F.3d 1263 (4th Cir. 1996). There, the Fourth Circuit concluded that if the terms of Conner's employment agreement did not violate the minimum wage and overtime provisions of the FLSA and provided compensation for straight time worked up to the overtime threshold, then there could be "no viable claim for [pure] gap time under the FLSA" as long as overtime wages were properly paid. It noted that Conner had "conceded" that all her overtime hours were "properly accounted for and appropriately compensated." In short, the district court found Conner had not alleged a violation of the FLSA's overtime provisions because she "merely asserted that she and other employees were shorted on their straight time pay pursuant to their contract." And because the court found that this amounted to a state-law contract claim, rather than an FLSA claim, the court dismissed Conner's FLSA claim, declined to exercise supplemental jurisdiction over Conner's breach-of-contract claim, and granted Cleveland County's motion for judgment on the pleadings. Conner timely appealed. Discussion Conner asserts that the district court made two key errors in dismissing her FLSA claim. She argues the district court misinterpreted and misapplied (1) Department of Labor official interpretation 29 C.F.R. Section 778.315 and (2) the Fourth Circuit's holding in Monahan. Because it concludes that an overtime gap time claim is cognizable under the FLSA, the Fourth Circuit agrees. In sum, it holds that an overtime gap time claim is cognizable under the FLSA. The FLSA ensures employees are adequately paid for all overtime hours. To do this, courts must ensure employees are paid all of their straight time wages first under the relevant employment agreement, before overtime is counted. For the foregoing reasons, the district court erred in granting Cleveland County's motion for judgment on the pleadings. Conclusion After careful review, the Fourth Circuit holds that the district court dismissed the suit based on a misreading of its opinion in Monahan v. County of Chesterfield, 95 F.3d 1263 (4th Cir. 1996). Under the correct standard articulated thereinafter, Conner adequately alleged a FLSA claim. Accordingly, Judge James Andrew Wynn, writing for the Fourth Circuit, vacated and remanded for further proceedings. A full-text copy of the Court's Jan. 5, 2022 Opinion is available at https://tinyurl.com/3yasv9fm from Leagle.com. ARGUED: Philip J. Gibbons, Jr. -- phil@gibbonsleis.com -- GIBBONS LAW GROUP, PLLC, in Charlotte, North Carolina, for the Appellant. Christopher S. Edwards -- csedwards@wardandsmith.com -- WARD AND SMITH, PA, in Wilmington, North Carolina, for the Appellee. ON BRIEF: Craig L. Leis -- craig@gibbonsleis.com -- GIBBONS LEIS, PLLC, in Charlotte, North Carolina, for the Appellant. Alexander C. Dale -- acd@wardandsmith.com -- Grant B. Osborne -- gbo@wardandsmith.com -- WARD AND SMITH, PA, in Wilmington, North Carolina, for the Appellee. COUSINS MAINE: Guerrero Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Cousins Maine Lobster, LLC. The case is styled as Edelmira Guerrero, individually and on behalf of all others similarly situated v. Cousins Maine Lobster, LLC, Case No. 1:22-cv-00272 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Cousins Maine Lobster -- https://www.cousinsmainelobster.com/ -- is a franchise food truck business based in Los Angeles, California.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: jmizrahi@mizrahikroub.com CROWN AWARDS: Contreras Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Crown Awards, Inc. The case is styled as Yensy Contreras, individually and on behalf of all others similarly situated v. Crown Awards, Inc., Case No. 1:22-cv-00300 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Crown Awards, Inc. -- https://www.crownawards.com/ -- designs, manufactures, markets, and sales awards. The Company offers trophies, medals, plaques, pins, and more awards for leagues, organizations, schools, and businesses, as well as provides online catalog of products.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com CT WANHUA NOODLE: Lan Denied Overtime, Slams Tip Credit ------------------------------------------------------- Dounfuh Lan, individually and on behalf of others similarly situated, Plaintiff, v. CT Wanhua Noodle Corp., Defendants, Case No. 22-cv-00050 (D. N.J., January 5, 2022), seeks to recover unpaid minimum and overtime wages including misappropriated tips and redress for failure to provide itemized wage statements pursuant to the Fair Labor Standards Act of 1938, New Jersey Wage Payment Law, New Jersey Wage and Hour Law and the New Jersey Wage and Hour Regulations, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants operate a Chinese restaurant "Dun Huang Edison" in Edison, NJ 08817 where Dounfuh Lan worked as a waiter from September 5, 2021 to December 19, 2021. He claims to have worked in excess of 40 hours per week, without appropriate minimum wage, overtime compensation for the hours that they worked. He also did not enjoy a fixed break time since he would attend to customer even during her break. Defendants also failed to maintain accurate recordkeeping of the hours worked and failed to pay them appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Dounfuh Lan claims to have received a sub-minimum wage but CT deducted 3% from his tips charged on credit cards to cover CT's credit card transaction fees. Plaintiff also performs a number of non-tipped duties unrelated to their tipped occupations exceeding 20% of her time rendered. CT allegedly also takes tips from wait staff to pay non-tipped employees' wages. [BN] Plaintiff is represented by: Adam Dong, Esq. DONG, ADAM'S LAW FIRM PLLC 3708 Main St, Suite 308 Flushing, NY 11354 Tel: (929) 269-5666 Email: adam.dong@dongadams.com D&A SERVICES: Deutsch Appeals Dismissal in FDCPA Suit to 3rd. Cir. ------------------------------------------------------------------ Plaintiff Mindy Deutsch filed an appeal from a court ruling entered in the lawsuit entitled MINDY DEUTSCH, on behalf of herself and all others similarly situated, Plaintiff v. D & A SERVICES, LLC, Defendant, Case No. 3:21-cv-12286-AET-TJB, in the United States District Court for the District of New Jersey. On June 8, 2021, the Plaintiff brings this action for statutory damages and declaratory and injunctive relief arising from Defendant's alleged violation of the Fair Debt Collection Practices Act, which prohibits debt collectors from engaging in abusive, deceptive and unfair practices. On September 22, 2021, the Defendant filed a motion to dismiss the case. On December 7, 2021, Judge Anne E. Thompson entered an order granting Defendant's motion to dismiss. The Plaintiff now seeks a review of this order. The appellate case is captioned as Mindy Deutsch v. D&A Services LLC, Case No. 22-1042, in the United States Court of Appeals for the Third Circuit, filed on January 7, 2022.[BN] Plaintiff-Appellant MINDY DEUTSCH, on behalf of herselfand all others similarly situated, is represented by: Lawrence C. Hersh, Esq. 17 Sylvan Street Rutherford, NJ 07070 Telephone: (201) 507-6300 E-mail: lh@hershlegal.com Defendant-Appellee D&A SERVICES LLC is represented by: Aaron R. Easley, Esq. SESSIONS ISRAEL & SHARTLE 3 Cross Creek Drive Flemington, NJ 08822 Telephone: (908) 237-1660 E-mail: aeasley@sessions-law.biz DANGO PRODUCTS: Weekes Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Dango Products, LLC. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Dango Products, LLC, Case No. 1:22-cv-00288 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Dango -- https://www.dangoproducts.com/ -- is a designer, manufacturer and online retailer of wallets, belts and phone cases.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com DECATUR COUNTY, TN: Weaver Sues Over Sheriff Deputies' Unpaid Wages ------------------------------------------------------------------- CLYDE WEAVER and TYLER LINDSAY on behalf of themselves and all others similarly situated, Plaintiffs v. DECATUR COUNTY GOVERNMENT and DECATUR COUNTY SHERIFF'S OFFICE, Defendants, Case No. 1:22-cv-01003-STA-JAY (W.D. Tenn., January 6, 2022) is a collective action brought by Plaintiffs on behalf of themselves and other similarly situated Decatur County Government employees working for the Sheriff's Office for purposes of obtaining relief under the Fair Labor Standards Act and Tennessee law to recover from Defendants for unpaid overtime compensation, unpaid back wages, interest thereon, liquidated damages, costs of suit, attorneys' fees, and declaratory and/or injunctive relief. The Plaintiffs are current or former Decatur County Sheriff deputies. Plaintiffs Weaver and Lindsay were employed as canine handlers for Decatur County Sheriff's Office. Plaintiff Weaver began his employment with Defendants on August 12, 2015 and was employed through October 11, 2021, while Plaintiff Lindsay began his employment with Defendants in April 2019 and resigned in September 2021. Decatur County Government is a political subdivision organized and existing under the laws of the State of Tennessee.[BN] The Plaintiffs are represented by: William C. Sessions, III, Esq. Frances H. Sessions, Esq. SESSIONS LAW FIRM, PLLC Post Office Box 331 Brunswick, TN 38014-331 Telephone: (901) 848-9654 E-mail: Wsessions@SessionsLawPllc.com BSessions@SessionsLawpllc.com DIAMOND RESORTS: Bid to Dismiss Gonzalez Suit Granted in Part ------------------------------------------------------------- The U.S. District Court for the District of Nevada grants in part the Defendants' motion to dismiss the lawsuit titled DANIEL GONZALEZ, et al., Plaintiffs v. DIAMOND RESORTS INTERNATIONAL MARKETING, INC., et al., Defendants, Case No. 2:18-cv-00979-APG-NJK (D. Nev.). Plaintiffs Daniel Gonzalez and Jeffrey Hughes sue Defendants Diamond Resorts International Marketing, Inc. and West Maui Resorts Partners, L.P. (WMRP) under the Fair Labor Standards Act (FLSA) and Hawaii law on behalf of themselves and similarly situated vacation counselors. The Defendants move to dismiss the claims of 340 opt-in plaintiffs in the FLSA class and 303 members of the Hawaii class because they signed arbitration agreements. They contend they have not waived their right to arbitrate because they have consistently asserted the agreements as a defense, and they timely moved for arbitration after the class opt-in/opt-out periods expired. The Defendants also request that the Court sanction the Plaintiffs' counsel under 28 U.S.C. Section 1927 or the Court's inherent power because the Plaintiffs refused to dismiss these opt-in plaintiffs. The Plaintiffs respond that the Defendants waived their right to arbitration because they should have moved to compel arbitration no later than when the FLSA opt-in period closed on March 3, 2020, and because they engaged in extensive litigation activity in this Court. They also argue the present motion is deficient because the Defendants seek to dismiss the case rather than compel arbitration and stay the case as to these Plaintiffs. The Plaintiffs contend the Defendants have framed the motion in this manner to deprive the opt-in plaintiffs of their claims because dismissal may result in the running of the statute of limitations. Analysis A. Waiver Section 2 of the Federal Arbitration Act (FAA) provides that an arbitration clause in a contract will be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. District Judge Andrew P. Gordon finds that the Defendants have not engaged in intentional acts inconsistent with their right to compel arbitration. The Defendants raised the arbitration agreements in their answer to the complaint in September 2018. Judge Gordon also notes that throughout the history of this case, the Defendants have consistently and repeatedly asserted that any Plaintiff, who was subject to an arbitration agreement should be dismissed from this action and the related action. Judge Gordon holds that the Defendants have not litigated the merits of those claims in this forum and have resisted efforts to engage in discovery related to those Plaintiffs other than to disclose evidence to show whether the Plaintiffs are subject to an arbitration agreement. Judge Gordon holds that the Plaintiffs have not identified any advantage the Defendants have obtained by not filing the motion to compel sooner. The Plaintiffs also have not shown prejudice. The Plaintiffs contend they have incurred expenses litigating this case, but they have not identified any expense they would not have incurred anyway because there remain hundreds of Plaintiffs in this case, who are not subject to an arbitration agreement, Judge Gordon observes. He points out that they have not identified any issue they would have to relitigate, nor have they identified an advantage the Defendants have received from litigating in this Court that they would not have received in arbitration. Judge Gordon finds that the Plaintiffs have not shown the Defendants waived their right to compel arbitration. He, therefore, grants the motion to compel arbitration for those Plaintiffs, who are subject to an arbitration agreement. B. Stay versus Dismissal The Defendants move to dismiss the Plaintiffs, who are subject to an arbitration agreement. The Plaintiffs oppose dismissal and instead request that the Court stay those Plaintiffs' claims pending arbitration. Judge Gordon stays the claims of the Plaintiffs, who must arbitrate. Some of the Plaintiffs may have a basis to challenge the enforceability of the arbitration agreement. It is possible that the arbitrator may deem the agreement unenforceable as to particular Plaintiffs. If so, those Plaintiffs should be permitted to return to the collective action in this case, Judge Gordon adds. C. Equitable Tolling Judge Gordon declines to address equitable tolling. The parties may direct their respective arguments to the arbitrator. D. Sanctions Judge Gordon denies the Defendants' request for sanctions because he finds no bad faith. To the contrary, Judge Gordon has agreed with the Plaintiffs that the proper course is to stay pending arbitration, not dismissal. Conclusion Judge Gordon, therefore, orders that the Defendants' motion to dismiss is granted in part. Those Plaintiffs, who are subject to an arbitration agreement, are compelled to submit their claims to arbitration. The case is stayed as to only those Plaintiffs, pending completion of arbitration. The motion is denied in all other respects. A full-text copy of the Court's Order dated Dec. 27, 2021, is available at https://tinyurl.com/4fxd3z8k from Leagle.com. DIAMOND RESORTS: Summary Judgment Bid in Delara Suit Partly Granted ------------------------------------------------------------------- Judge Andrew P. Gordon of the U.S. District Court for the District of Nevada grants in part the Defendant's motion for summary judgment in the lawsuit entitled ALBERTO DELARA, Plaintiff v. DIAMOND RESORTS INTERNATIONAL MARKETING, INC., Defendant, Case No. 2:19-cv-00022-APG-NJK (D. Nev.). Plaintiff Delara sues Defendant Diamond under the Fair Labor Standards Act (FLSA) on behalf of himself and similarly situated concierges and marketing supervisors. Diamond moves for summary judgment on certain claims, arguing that some are barred by claim preclusion due to prior settlements, some are barred by the Plaintiffs' failure to disclose their claims in bankruptcy proceedings, and some are barred by the statute of limitations. Additionally, Diamond requests that the Court sanctions the Plaintiffs' counsel for unreasonably multiplying the proceedings by not conceding dismissal of these claims. Analysis Summary judgment is appropriate if the movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," Fed. R. Civ. P. 56(a). A. Prior Class Action Settlement Diamond contends that certain claims are barred by claim preclusion because some of the Plaintiffs participated in a settlement of a prior class action in California involving the release of overtime claims. It contends that 31 opt-in Plaintiffs were class members in the prior action and their FLSA claims against Diamond in the case are therefore barred. The Plaintiffs respond that the prior class action applied only to class members, who performed work in California, yet Diamond is trying to apply that settlement to employees who also worked in other states. They also contend that the settlement covered work through July 2, 2018, but the case involves work performed after that date, so not all claims were released. In its reply, Diamond agrees that 18 of the opt-in Plaintiffs, who continued employment with Diamond after the settlement release date of July 2, 2018, are not barred from pursuing FLSA claims that arose after that date. Consequently, the only issue remaining is whether those class members, who worked both in California and another state, are barred from bringing their FLSA claims in this case for work performed outside of California before July 2, 2018. The class in the Diamond Resorts Wage and Hour Cases included "all natural persons who, at any point from August 28, 2011 through the date the Court grants Preliminary Approval of the Settlement ('Class Period'), were employed/are employed as Non-Exempt Employees for Diamond in California." The facts alleged in the California class action included that Diamond incorrectly calculated overtime because it did not include commissions and bonuses to calculate overtime. The Plaintiffs do not dispute that the prior California class action resulted in a final judgment on the merits between Diamond and some of the Plaintiffs in this case. Thus, the issue is whether the two lawsuits involve the same cause of action. The Plaintiffs do not dispute that, as a general matter, the two lawsuits involve the same primary right to obtain redress for the harm of not being paid overtime wages due to Diamond's alleged failure to properly account for commissions and bonuses. Instead, they contend that the same claim is not at issue because the class was defined in the prior action to include only those who worked for Diamond in California, and thus it did not cover work those class members performed for Diamond in other states. The class membership defined, who was covered by the settlement (assuming they did not opt out), but it did not define the scope of the release to which those class members agreed, Judge Gordon notes. That release was broad and did not state that it applied only to overtime claims for work performed in California. It contained no geographic scope, instead referring to the release of "any and all" claims, whether under state or federal law, for overtime wages. Moreover, Judge Gordon states, claim preclusion applies not only to those claims that were actually brought, but also to those that could have been brought. The Plaintiffs could have litigated their FLSA overtime claims for work performed in other states in the prior action, including by opting out of the settlement and litigating their claims individually or by objecting to the settlement to the extent it did not compensate class members for work performed for Diamond in states other than California. Consequently, Judge Gordon grants Diamond's motion for summary judgment for those opt-in Plaintiffs, who are bound by the settlement in the prior state court action. However, Judge Gordon denies the motion as to claims by opt-in Plaintiffs, who worked for Diamond after the July 2, 2018 settlement release date and which are based on time worked after July 2, 2018. B. Individual Settlement Diamond argues that opt-in plaintiff Kenza El Ansari settled her claim against Diamond in separate litigation. The Plaintiffs do not contest that El Ansari should be dismissed. Judge Gordon, therefore, grants this portion of Diamond's motion as unopposed. C. Bankruptcy Filings Diamond argues that Plaintiff Alberto Delara and 10 opt-in Plaintiffs lack standing to bring their claims because the claims belong to their bankruptcy estates. Diamond also contends these Plaintiffs should be judicially estopped from bringing their claims because they did not disclose the claims in their bankruptcy proceedings. The Plaintiffs respond that Delara should not be judicially estopped because he did not know he had an unpaid overtime claim while his bankruptcy proceeding was pending and, in any event, he continued to work for Diamond after his bankruptcy discharge, so he would at least have a claim for unpaid wages for the period following the discharge. They also argue that eight of the ten opt-in Plaintiffs should not be judicially estopped because they did not know they had a claim to disclose before receiving the notice of this FLSA action and their bankruptcies were discharged or dismissed before they receive the notice in this case. They also assert that I should not judicially estop claims for unpaid wages that arose after bankruptcy discharge or dismissal. The Plaintiffs have constitutional standing because they allege that they suffered an injury in fact in the form of unpaid overtime wages, that the injury is fairly traceable to the defendants' alleged conduct in miscalculating overtime, and that a favorable court decision could likely redress the injury, Judge Gordon holds, citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In addition to constitutional standing, however, the plaintiffs must show they have prudential standing, meaning they are asserting their own legal interests as the real party in interest. A Chapter 7 debtor lacks standing even as to scheduled claims because the trustee is the bankruptcy estate's representative and therefore is generally the only party with standing to prosecute causes of action belonging to the estate. Each of the identified Plaintiffs filed a Chapter 7 bankruptcy. The Plaintiffs, thus, have not shown that any of them has standing to assert claims that would belong to their respective bankruptcy estates. Judge Gordon, therefore, grants Diamond's motion to dismiss these Plaintiffs' claims for lack of standing to the extent the claims are part of their bankruptcy estates. But Diamond does not dispute in reply that any Plaintiff whose claims arose after their bankruptcy proceedings were discharged or dismissed would have standing to assert those claims. Consequently, Judge Gordon denies this portion of Diamond's motion as to those Plaintiffs, who have claims that arose after any bankruptcy proceeding was discharged or dismissed because those Plaintiffs would have standing and would not be barred by judicial estoppel. Other than Delara, the Plaintiffs do not identify who these Plaintiffs are, and Judge Gordon will not scour the record to determine their identities. The parties will confer about who falls into this category. If they cannot agree as to all Plaintiffs, they can file an appropriate motion within 45 days of this order. D. Statute of Limitations Diamond argues that the claims of 15 opt-in Plaintiffs are untimely even considering the tolling of the limitation period that Judge Gordon ordered. The Plaintiffs agree that the 15 identified opt-in Plaintiffs' FLSA claims are untimely. Consequently, Judge Gordon dismisses the FLSA claims of the identified opt-in Plaintiffs. E. Sanctions Diamond argues the Court should sanction the Plaintiffs' counsel under 28 U.S.C. Section 1927 or its inherent power because Diamond advised the Plaintiffs' counsel of the grounds for dismissal presented in this motion and the Plaintiffs refused to dismiss those claims. The Plaintiffs respond that sanctions are not warranted because Diamond repeatedly refused to provide information related to the pending motion, including information about any Plaintiff other than Delara, until shortly before Diamond filed the motion. Judge Gordon declines to sanction the Plaintiffs' counsel because he finds no recklessness or bad faith. Judge Gordon has not granted Diamond's motion in its entirety, so the Plaintiffs' counsel did not act in bad faith by refusing to agree to blanket dismissals of various categories of Plaintiffs. Additionally, the Plaintiffs' counsel has explained why he would not agree to Diamond's requests to dismiss categories of Plaintiffs without further information that had not been supplied until shortly before this motion was filed. Conclusion Judge Gordon, therefore, orders that the Defendant's motion for summary judgment is granted in part as set forth. Judge Gordon further orders that within 45 days of the date of this order, the parties will file a stipulation or a motion about which Plaintiffs, if any, should be dismissed for lack of standing based on this order. A full-text copy of the Court's Order dated Dec. 27, 2021, is available at https://tinyurl.com/26nxwvhh from Leagle.com. DIAMOND RESORTS: Wins Bid for Summary Judgment in Gonzalez Suit --------------------------------------------------------------- Judge Andrew P. Gordon of the U.S. District Court for the District of Nevada grants in part the Defendants' motion for summary judgment in the lawsuit styled DANIEL GONZALEZ, et al., Plaintiffs v. DIAMOND RESORTS INTERNATIONAL MARKETING, INC., et al., Defendants, Case No. 2:18-cv-00979-APG-NJK (D. Nev.). Plaintiffs Daniel Gonzalez and Jeffrey Hughes sue Defendants Diamond Resorts International Marketing, Inc. and West Maui Resorts Partners, L.P. (WMRP) under the Fair Labor Standards Act (FLSA) on behalf of themselves and similarly situated vacation counselors. The Defendants move for summary judgment on certain claims, arguing that some are barred by claim preclusion due to prior settlements, some are barred by the Plaintiffs' failure to disclose their claims in their bankruptcy proceedings, and some are barred by the statute of limitations. Additionally, the Defendants request that the Court sanctions the Plaintiffs' counsel for unreasonably multiplying the proceedings by not conceding dismissal of these claims. Analysis Summary judgment is appropriate if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (Fed. R. Civ. P. 56(a)). A. Prior Class Action Settlement The Defendants contend that certain claims are barred by claim preclusion because some of the Plaintiffs participated in a settlement of a prior class action in California involving the release of overtime claims. See Diamond Resorts Wage and Hour Cases, Lead Case No. JCCP4923. The Defendants contend that Gonzalez and 127 opt-in plaintiffs were class members in the prior action and their FLSA claims against Diamond in this case are, therefore, barred. The Plaintiffs respond that the prior class action settlement involved only Diamond, not WMRP, so the claims against WMRP are not barred. They also argue that the prior class action applied only to class members, who performed work in California, yet the Defendants are trying to apply that settlement to employees, who also worked in other states. Finally, the Plaintiffs contend that the settlement covered work through July 2, 2018, but this case involves work performed after that date, so not all claims were released. In their reply, the Defendants concede that their motion was directed only at FLSA claims against Diamond, not unpaid overtime claims against WMRP under Hawaii state law. They also agree that 51 of the opt-in plaintiffs, who continued employment with Diamond after the settlement release date of July 2, 2018, are not barred from pursuing FLSA claims that arose after that date. Consequently, the only issue remaining is whether those class members, who worked both in California and another state, are barred from bringing their FLSA claim in this case for work performed outside of California before July 2, 2018. The class in the Diamond Resorts Wage and Hour Cases included "all natural persons who, at any point from August 28, 2011 through the date the Court grants Preliminary Approval of the Settlement ('Class Period'), were employed/are employed as Non-Exempt Employees for [Diamond] in California." The notice to class members of the proposed settlement advised class members that if they participated in the settlement, they would release Diamond from any and all claims, causes of action, damages, wages, and any other form of relief or remedy whether based on state or federal law, that are asserted in the Action or which could have been asserted in this Action related to the facts and claims asserted in this Action, including all claims for unpaid wages and overtime wages and all other claims that were or could arise from the facts or causes of action pled in the action for the relevant time period. The notice also advised class members that they could opt-out of the settlement. The facts alleged in the California class action included that Diamond incorrectly calculated overtime because it did not include commissions and bonuses to calculate overtime. The Plaintiffs do not dispute that the prior California class action resulted in a final judgment on the merits between Diamond and some of the FLSA Plaintiffs in this case. Thus, the issue is whether the two lawsuits involve the same cause of action. The Plaintiffs do not dispute that, as a general matter, the two lawsuits involve the same primary right to obtain redress for the harm of not being paid overtime wages due to Diamond's alleged failure to properly account for commissions and bonuses. Instead, they contend that the same claim is not at issue because the class was defined in the prior action to include only those who worked for Diamond in California, and thus it did not cover work those class members performed for Diamond in other states. Consequently, the Court grants the Defendants' motion for summary judgment on the FLSA claims against Diamond for those opt-in plaintiffs, who are bound by the settlement in the prior state court action. However, the following claims are not precluded: (1) any Hawaii class member's claims against WMRP and (2) FLSA claims by opt-in plaintiffs who worked for Diamond after the July 2, 2018 settlement release date and which are based on time worked after July 2, 2018. B. Individual Settlements The Defendants argue that opt-in plaintiff Mary Bowling settled her claim against WMRP in separate litigation. They also contend that Plaintiffs Silver Aly, Jeffrey Barclay, Natasha Vea, and Maxwell Miller settled their claims in separate lawsuits. The Plaintiffs do not contest that these Plaintiffs should be dismissed. Judge Gordon, therefore, grants this portion of the Defendants' motion as unopposed. C. Bankruptcy Filings The Defendants argue that Plaintiff Jeffrey Hughes and certain opt-in FLSA Plaintiffs and Hawaii class members lack standing to bring their claims because the claims belong to their bankruptcy estates. The Defendants also contend these Plaintiffs should be judicially estopped from bringing their claims because they did not disclose the claims in their bankruptcy filings. The Plaintiffs respond that judicial estoppel does not apply because some Plaintiffs amended their bankruptcy schedules. They alternatively argue that their bankruptcy proceedings were dismissed, so they did not take inconsistent positions, the bankruptcy court did not accept their position, or they obtained no benefit from the omission. The Plaintiffs also argue that one Plaintiff filed for bankruptcy and was discharged before he worked for the Defendants and, thus, he had no claim to disclose in his bankruptcy schedules. The Plaintiffs also contend that many of them did not know they had a claim to disclose before receiving the notice of this FLSA action or the Hawaii class action. They contend that for those Plaintiffs, who have pending bankruptcies, they should be permitted to amend their schedules to include their claims in this case. Finally, they assert that the Court should not judicially estop claims for unpaid wages that arose after bankruptcy discharge or dismissal. 1. Plaintiff John Backman In reply, the Defendants agree to withdraw opt-in Plaintiff John Backman from the motion because Backman filed for bankruptcy and obtained a discharge before he commenced working for the Defendants. The motion is, therefore, denied as to Backman. 2. Standing The Plaintiffs do not specifically respond to the Defendants' standing argument, except to argue that (1) some opt-in Plaintiffs and Hawaii class members have claims that arose after their bankruptcies were discharged or dismissed, and those claims would not be part of the bankruptcy estate, (2) some Plaintiffs have pending bankruptcies and should be allowed to amend their schedules to include these claims, and (3) Plaintiff Jeffrey Hughes filed a Chapter 13 petition and amended his schedules to include these claims. Judge Gordon finds that the Plaintiffs have constitutional standing because they allege that they suffered an injury in fact in the form of unpaid overtime wages, that the injury is fairly traceable to the Defendants' alleged conduct in miscalculating overtime, and that a favorable court decision could likely redress the injury, citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). The Defendants do not dispute in reply that any Plaintiff whose claims against the Defendants arose after their bankruptcy proceedings were discharged or dismissed would have standing to assert their claims because the claims were not part of a bankruptcy estate. Judge Gordon denies this portion of the Defendants' motion as to those Plaintiffs, who have claims that arose after their bankruptcy proceeding was discharged or dismissed. The parties will confer about who falls into this category. If they cannot agree as to all Plaintiffs, they can file an appropriate motion, Judge Gordon says. The plaintiffs argue that any plaintiffs with a currently open bankruptcy proceeding should be allowed to amend their bankruptcy schedules to include the claims in this case. Judge Gordon grants that request and requires all such Plaintiffs to amend their schedules within 30 days of the date of this order. The Plaintiffs with a currently open bankruptcy proceeding, who do not timely amend their schedules, will be dismissed from this case for lack of standing. The Plaintiffs contend that Jeffrey Hughes filed a Chapter 13 petition that was based on a 100% payment plan, he amended his schedules to disclose this action, and he later dismissed his petition. Because Hughes amended his schedules to include the claims and later dismissed his bankruptcy petition, the claims have reverted to Hughes, Judge Gordon holds. He, therefore, has standing. Judge Gordon dismisses for lack of standing the claims of the remaining Plaintiffs, who filed bankruptcies not otherwise discussed in this Order. The parties will confer on who these plaintiffs are and, within 45 days of the date of this Order, file either a stipulation to dismiss them or a notice with their identities so the Court may enter an order dismissing them for lack of standing. If the parties disagree as to any Plaintiff, they can file an appropriate motion. 3. Judicial Estoppel Judicial estoppel is a discretionary equitable doctrine, applied on a case-by-case basis; see Ah Quin v. Cty. of Kauai Dep't of Transp., 733 F.3d 267, 270, 272 (9th Cir. 2013) (citing New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001)). Judge Gordon finds that the Plaintiffs whose claims arose after their bankruptcy was discharged or dismissed had nothing to disclose. Thus, judicial estoppel based on a failure to list the claims in their schedules does not apply. Judge Gordon, therefore, denies the Defendants' motion on this basis as to any Plaintiff that falls within this category. Judge Gordon cannot determine whether judicial estoppel is appropriate as to any Plaintiff, who has a current bankruptcy, until that Plaintiff amends his or her schedules and the trustee either pursues the claim or authorizes the Plaintiff to do so. Judge Gordon, therefore, denies this portion of the Defendants' motion as to the Plaintiffs, who fall within this category, without prejudice to renew once those issues are resolved. Judge Gordon also denies the Defendants' summary judgment motion on this basis as to Hughes. Judge Gordon states that he need not address judicial estoppel with respect to the remaining Plaintiffs, who filed bankruptcies, because he has already dismissed them for lack of standing. D. Statute of Limitations The Defendants argue that the claims of 31 opt-in Plaintiffs are untimely even considering the tolling of the limitation period that the Court ordered. The Plaintiffs agree that the 31 opt-in Plaintiffs' FLSA claims are untimely. However, they note that three of these individuals are also members of the Hawaii class. In reply, the Defendants agree that their motion on statute of limitations grounds was directed only at the FLSA claims. Consequently, the identified opt-in Plaintiffs' FLSA claims are dismissed as untimely. E. Sanctions The Defendants argue Judge Gordon should sanction the Plaintiffs' counsel under 28 U.S.C. Section 1927 or Judge Gordon's inherent power because the Defendants advised the Plaintiffs' counsel of the grounds for dismissal presented in this motion and the Plaintiffs refused to dismiss those claims. Judge Gordon declines to sanction the Plaintiffs' counsel because he finds no recklessness or bad faith. Conclusion Judge Gordon, therefore, orders that the Defendants' motion for summary judgment is granted in part as set forth. Judge Gordon further orders that within 45 days of the date of this Order, the parties will file a stipulation or a status report identifying which Plaintiffs should be dismissed for lack of standing based on this Order. A full-text copy of the Court's Order dated Dec. 27, 2021, is available at https://tinyurl.com/2p96whwy from Leagle.com. DIET TO GO: Guerrero Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Diet to Go of California LLC. The case is styled as Edelmira Guerrero, individually and on behalf of all others similarly situated v. Diet to Go of California LLC, Case No. 1:22-cv-00273 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Diet-to-Go -- https://diettogo.com/ -- is a diet delivery service that provides balanced, freshly prepared, real food for weight loss.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: jmizrahi@mizrahikroub.com DISCOVERY INC: Bernstein Liebhard Reminds of March 8 Deadline ------------------------------------------------------------- Bernstein Liebhard LLP on Jan. 11 disclosed that a securities class action lawsuit has been filed on behalf of investors who purchased or acquired Discovery Inc. ("Discovery" or the "Company") Series A (NASDAQ: DISCA) or Discovery Series C (NASDAQ: DISCK) common stock between March 22, 2021 and March 29, 2021, inclusive (the "Class Period"). The lawsuit was filed in the United States District Court for the Southern District of New York and alleges violations of the Securities Act of 1934. If you purchased Discovery Class A or Class C common stock, and/or would like to discuss your legal rights and options please visit Discovery, Inc. Shareholder Class Action Lawsuit or contact Joe Seidman toll free at (877) 779-1414 or seidman@bernlieb.com. According to the complaint, Defendants Goldman Sachs Group Inc. and Morgan Stanley collectively sold off billions of dollars' worth of Discovery shares while in possession of material non-public information they obtained pursuant to their agreements with, and from serving as prime brokers for, Archegos Capital Management ("Archegos"). Defendants knew or recklessly disregarded that they owed a fiduciary duty, or obligation arising from a similar relationship of trust and confidence, to Archegos to keep the information confidential. During March 2021, Goldman Sachs and Morgan Stanley confidentially learned that Archegos had failed, or was likely to fail, to meet a margin call, requiring Archegos to liquidate its position in Discovery. Trading on this non-public information, Goldman Sachs and Morgan Stanley avoided billions of dollars in losses on their Discovery investments by selling Company securities in late March 2021 before the market learned of Archegos' difficulties. When this information reached the market, the price of Discovery securities fell sharply, damaging Company investors. If you wish to serve as lead plaintiff, you must move the Court no later than March 8, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased Discovery Class A or Class C common stock, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/discoveryinc-disca-disck-shareholder-lawsuit-class-action-fraud-stock-477/ or contact Joe Seidman toll free at (877) 779-1414 or seidman@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. ATTORNEY ADVERTISING. © 2022 Bernstein Liebhard LLP. The law firm responsible for this advertisement is Bernstein Liebhard LLP, 10 East 40th Street, New York, New York 10016, (212) 779-1414. The lawyer responsible for this advertisement in the State of Connecticut is Michael S. Bigin. Prior results do not guarantee or predict a similar outcome with respect to any future matter. Contact Information: Joe Seidman Bernstein Liebhard LLP https://www.bernlieb.com (877) 779-1414 seidman@bernlieb.com [GN] DISCOVERY INC: Lieff Cabraser Reminds of March 8 Deadline --------------------------------------------------------- The law firm of Lieff Cabraser Heimann & Bernstein, LLP on Jan. 11 disclosed that class action litigation has been filed on behalf of investors who purchased or otherwise acquired shares of Discovery, Inc. ("Discovery") common stock (Nasdaq: DISCA, DISCK) between March 22, 2021 and March 29, 2021, inclusive (the "Class Period"). If you purchased or otherwise acquired Discovery Series A (Nasdaq: DISCA) or Discovery Series B (Nasdaq: DISCK) common stock during the Class Period, you may move the Court for appointment as lead plaintiff in the action by no later than March 8, 2022. A lead plaintiff is a representative party who acts on behalf of other class members in directing the litigation. Your share of any recovery in the actions will not be affected by your decision of whether to seek appointment as lead plaintiff. You may retain Lieff Cabraser, or other attorneys, as your counsel in the action. Discovery investors who wish to learn more about the litigation and how to seek appointment as lead plaintiff should click here, or text or email investorinfo@lchb.com, or call Sharon M. Lee of Lieff Cabraser at 1-800-541-7358. Background on the Discovery Securities Class Litigation The action alleges that, during the Class Period, defendants Goldman Sachs Group Inc. and Morgan Stanley traded in Discovery shares while in possession of material non-public information that Archegos Capital Management ("Archegos"), a family office with $10 billion under management, failed (or was likely to fail) to meet a margin call, requiring it to fully liquidate its position in Discovery. Defendants unloaded large block trades consisting of shares of Archegos's bets, including billions of dollars worth of Discovery securities beginning on March 25, 2021, before the market learned of Archegos's collapse. As a result of these insider sales, defendants avoided billions of dollars in losses. Defendants knew, or were reckless in not knowing, that they were prohibited from trading while in possession of material, non-public information about Archegos but disposed of their Discovery shares to class members anyway before the news about Archegos was revealed and the price of Discovery shares plummeted. About Lieff Cabraser Lieff Cabraser Heimann & Bernstein, LLP, with offices in San Francisco, New York, and Nashville, and Munich, is an internationally-recognized law firm committed to advancing the rights of investors and promoting corporate responsibility. The National Law Journal has recognized Lieff Cabraser as one of the nation's top plaintiffs' law firms for fourteen years. Law360 has selected Lieff Cabraser as one of the Top 50 law firms nationwide for litigation, highlighting our firm's "laser focus" and noting that our firm routinely finds itself "facing off against some of the largest and strongest defense law firms in the world." Benchmark Litigation has named Lieff Cabraser one of the "Top 10 Plaintiffs' Firms in America." For more information about Lieff Cabraser and the firm's representation of investors, please visit https://www.lieffcabraser.com/. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. CONTACT: Lieff Cabraser Heimann & Bernstein, LLP Telephone: 1-800-541-7358 [GN] DPV TRANSPORTATION: Bid to Approve Settlement in Briggs Suit Denied ------------------------------------------------------------------- The U.S. District Court for the Southern District of New York denied without prejudice the parties' motion for approval of their proposed settlement filed in the lawsuit captioned as LIONEL BRIGGS and JAMES ANTWINE, individually and in behalf of all other persons similarly situated, Plaintiffs v. DPV TRANSPORTATION, INC., DPV TRANSPORTATION WORLDWIDE LLC, DANIEL PEREZ, and JOSE PEREZ, jointly and severally, Defendants, Case No. 21-CV-6738 (KMK) (S.D.N.Y.). Plaintiffs Lionel Briggs and James Antwine brought this putative class action against their former employer, DPV Transportation, Inc., and DPV Transportation Worldwide LLC (together, "DPV"), and two managers of DPV, Daniel Perez and Jose Perez (collectively, "Defendants"), pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), the New York Minimum Wage Act, the New York Labor Law ("NYLL"), and the New York Wage Theft Prevention Act. The Parties now seek approval of their proposed settlement. I. Background The Plaintiffs worked for the Defendants as drivers, assisting in providing COVID-19 vaccines in New York state from approximately May to July 2021. They worked over 40 hours each week and allege that they were not paid overtime. Briggs specifically alleges that he worked approximately 170 hours every two weeks--for example, Briggs worked 178 hours during the work period from May 17, 2021, to May 30, 2021--but he was paid only his hourly wages, which were approximately $15 per hour in his first week of work for the Defendants and $25 per hour thereafter. The Plaintiffs also allege that the Defendants failed to provide them with either a notice and acknowledgement at the time of hiring or a statement with each payment of wages, as required under the NYLL, and failed to post or keep posted notices explaining the minimum wage rights of employees under the FLSA and the NYLL. The Plaintiffs sought a declaratory judgment that the practices complained of herein are unlawful under the FLSA, the Minimum Wage Act, Section 191 of the NYLL, and the Wage Theft Prevention Act, and a permanent injunction restraining the Defendants from violating the NYLL, in addition to, inter alia, awards of unpaid or underpaid overtime compensation, liquidated damages, statutory damages, prejudgment interest and attorney's fees, costs, and further expenses. The Plaintiffs purported to bring their claims individually and on behalf of a class of similarly situated current and former employees employed by the Defendants as drivers, who assisted in providing COVID-19 vaccines in New York state in the last three years (the "FLSA Collective Action") or six years (the "New York Class"). Mr. Briggs filed the Complaint on Aug. 10, 2021. On Sept. 22, 2021, Antwine consented to becoming a party plaintiff pursuant to 29 U.S.C. Section 216(b). On Oct. 12, 2021, the Defendants filed an Answer. On Oct. 25, 2021, the Parties informed the Court that the Parties had reached a settlement in principle, and on Nov. 8, 2021, the Plaintiffs submitted to the Court the Proposed Settlement Agreement, which they requested that the Court approve. Analysis 1. Whether the Settlement Amount Is Fair and Reasonable Under the PSA, the Defendants agree to pay a total of $26,000 (the "Settlement Amount") to resolve the Plaintiffs' claims. Of the Settlement Amount, $8,770.17 will be paid to Antwine, $8,113.83 will be paid to Briggs, and $9,116 will be paid to the Plaintiffs' counsel for fees and costs. The Court does not have sufficient information to determine whether the settlement sum is fair and reasonable. In the Gurrieri Letter, the Plaintiffs represent that Antwine "is owed $3,530 in unpaid overtime, $3,530 in liquidated damages, and an additional $6,195 in statutory damages for violation of the Wage Theft Prevention Act," for a total of $13,255. The Plaintiffs represent that Briggs "is owed $2,956.25 in unpaid overtime, $2,956.25 in liquidated damages, and an additional $7,050 in statutory damages for violation of the Wage Theft Prevention Act," for a total of $12,962.50. However, District Judge Kenneth M. Karas notes, the Plaintiffs provide no explanation of the methodology used to calculate these amounts or the underlying data (i.e., the hours each Plaintiff worked), nor do the Plaintiffs offer an explanation for how the Parties arrived at the Settlement Amount, given that Antwine and Briggs will recover $4,484.83 and $4,848.67 less, respectively, than what they are allegedly owed. The Parties must submit to the Court a more detailed explanation of how they arrived at the recovery sums for each Plaintiff before the Court will approve the PSA. 2. Good Faith The Court is satisfied that the PSA was negotiated competently, in good faith, and at arm's length, and that there was no fraud or collusion. 3. Similarly Situated Plaintiffs The Court is not aware of other employees, who are similarly situated to the Plaintiffs, and the Plaintiffs will be the only two employees affected by the settlement and dismissal of the lawsuit. These facts weigh in factor of approval of the PSA. 4. Release Provision The PSA provides that the Plaintiffs freely and irrevocably relinquish, release, and waive all possible charges, complaints, causes of action, liabilities, obligations, demands, contract rights, and claims against each of the Defendants based on or arising out of any acts, omissions, conduct, thing, or matter from the beginning of time up to and including the date the District Court dismisses the Action with prejudice, (a) relating to or arising out of wages, hours, overtime, prevailing wages, or wage deductions, (b) arising under or for alleged violation of the FLSA and/or the NYLL, Federal and New York State labor regulations of any kind, and arising under the New York Wage Theft Prevention Act, (c) arising under any actual or alleged express or implied contract, or under any common law or for any tort, in regard to work hours overtime, and/or payment of wages. The PSA also specifies that this waiver and release includes all claims described above either presently known or unknown by the Plaintiffs. The Court finds that this waiver is overly broad. Because the FLSA and NYLL govern more than just wage-and-hour claims, the inclusion of "arising under or for alleged violation of the FLSA and/or the NYLL, Federal and New York State labor regulations of any kind, and arising under the New York Wage Theft Prevention Act," is overbroad, because the release as written could extinguish claims under provisions of the FLSA or NYLL that have no relationship whatsoever to the claims at issue in this case, Judge Karas holds. 5. Attorneys' Fees The Plaintiffs' counsel seeks an award of $9,116, which amounts to approximately one-third of the settlement plus $536 in costs. The Plaintiffs' counsel has submitted records of their time to substantiate their attorneys' fees request, which the Plaintiffs' counsel represents are contemporaneous. The Plaintiffs' counsel has also submitted records of their costs, which demonstrate that the Plaintiffs' counsel spent $536, on filing fees and a process server. The total fees lodestar plus costs, thus, comes to a total of $5,716. The total attorneys' fees and costs award requested by the Plaintiffs' counsel then incorporates a multiplier of approximately 1.59 (even after accounting for the arithmetic error identified in Note 3), which the Plaintiffs' counsel argues is reasonable because this lodestar multiplier is "well within the range found to be fair in this Circuit." Accordingly, the Court concludes that the proposed attorneys' fees are reasonable as a fair percentage of the net award. Conclusion For these reasons, the Parties' request for approval of their Proposed Settlement Agreement is denied without prejudice. The Parties may reapply for approval of a settlement that complies with the Court's determinations in this Order. A full-text copy of the Court's Opinion & Order dated Dec. 27, 2021, is available at https://tinyurl.com/mv49neze from Leagle.com. John Gurrieri, Esq., Law Office of Justin A. Zellner, in New York City, Counsel for the Plaintiffs. Scott Matthews, Esq. -- smatthews@windelsmarx.com -- Windels, Marx, Lane & Mittendorf, LLP, in New York City, Counsel for the Defendants. ENSITE USA: Court Consolidates 12 Similar Cases, Including Brown ---------------------------------------------------------------- In the case, TONYA GIVENS BROWN, Plaintiff v. ENSITE USA, INC., Defendant, Civil Action No. 3:21-CV-00380-BJB-RSE (W.D. Ky.), Magistrate Judge Regina S. Edwards of the U.S. District Court for the Western District of Kentucky, Louisville Division, granted in part and denied in part EnSite's Motion to Consolidate. I. Background On June 12, 2021, Brown filed the lawsuit seeking unpaid wage and overtime compensation under the Fair Labor Standards Act ("FLSA") and the Kentucky Wage and Hour Laws ("KWHL"). According to Brown, she was employed as a Chief Inspector by EnSite from approximately January 2014 through at least the time her Complaint was filed. During that time, Brown alleges she worked 10- to 12-hour days for periods of 10 to 14 days straight while earning a set day rate. She claims she did not receive overtime compensation for work performed beyond the standard 40-hour work week. Nine cases alleging nearly identical causes of actions were filed by the Plaintiff's counsel on the same day. Additionally, one class action complaint asserting many of the same causes of action was filed on June 28, 2021, approximately two weeks later. Like Brown, the plaintiffs in eight of the related matters assert FLSA and KWHL violations for nonpayment of overtime. Plaintiff Norris Albert asserts Rule 23 class allegations under the FLSA, KWHL, and Ohio Minimum Fair Wage Act ("OMFWA") related to nonpayment of overtime. On Aug. 4, 2021, EnSite filed its answer and moved to consolidate all 10 cases for pre-trial purposes. In September 2020, the Plaintiff's counsel filed three additional complaints against EnSite on behalf of plaintiffs Jack Buehner, Kevin Perkins, and Mark Baber. These complaints bring the same causes of action as the nine matters filed on June 12, 2021. The Court will therefore consider sua sponte whether to consolidate these matters with those named in the Defendant's motion. The parties have relevant history predating the filing of Brown's complaint. In 2018, the Plaintiff's counsel filed an FLSA collective action in the U.S. District Court for the Southern District of Texas on behalf of a nationwide group of EnSite inspectors, including many of the plaintiffs in the 13 similar matters. The representative plaintiff in Doyle v. EnSite, Civil Action No. 4:18-CV-2941 alleged the same or substantially similar causes of actions as those in the individual matters filed in the Court. In Doyle, the parties stipulated to conditional certification, which the court granted. EnSite later moved to decertify the collective action. On April 23, 2021, the Plaintiffs filed a Motion for Rule 23 Class Certification related to the KWHL and OMFWA state law claims. EnSite moved for partial summary judgment the same day. On May 19, 2021, the court granted EnSite's decertification motion, and on May 21, 2021, plaintiff Doyle withdrew his Motion for Class Certification. The Plaintiff's counsel filed the 13 cases now at issue within months of decertification of the Doyle collective action. The Defendant now seeks consolidation for purposes of all pre-trial proceedings. The Plaintiff opposes consolidation largely because of the efforts EnSite took to decertify the collective action in Doyle, arguing that consolidation now would be tantamount to recertifying the class. In its reply, the Defendant distinguishes its argument for decertification in Doyle from its present argument for consolidation, noting that the two judicial processes are entirely unrelated. II. Analysis EnSite moves the Court to consolidate the 10 similar cases pursuant to Rule 42(a). It argues that although there are general factual distinctions, consolidation is proper because the cases involve the same Defendant and common questions of law. EnSite does acknowledge that the Albert action contains legally distinct allegations related to its OMFWA claims. It further contends that consolidation would promote efficiency, avoid duplication of discovery and judicial efforts, and avoid inconsistent outcomes. Ms. Brown positions that EnSite is merely forum shopping because she believes its argument for decertification in Doyle contradicts its present argument for consolidation. She points to EnSite's admission in Doyle that material factual distinctions exist between the subsets of inspectors under which the various plaintiffs fall. Brown argues that consolidation now would effectively recertify the class after EnSite convinced the Texas court that the claims were "overwhelmingly individual" in nature. Finally, Brown contends that consolidation would result in delay, prejudice, and undue burden to the plaintiffs. This is particularly true, Brown argues, for those who were members of the Doyle collective action, where some discovery already took place. A. Common Questions of Law or Fact Questions of law or fact need not be identical for purposes of Rule 42 consolidation. Rather, Rule 42 is permissive, and the Court has discretion to consolidate if at least some common questions of fact or law are present. Judge Edwards opines that all 13 matters undoubtedly share at least some factual or legal issues. She finds that the cases involve the same parties, EnSite and various inspectors. Twelve of the actions arise out of the same general series of events: Each plaintiff was at some point employed by EnSite and paid a day rate without overtime. All 13 actions allege that EnSite's method of compensation violated the FLSA and KWHL. The Albert action arises out of similar events but brings additional claims arising under the OMFWA and does so on behalf of a collective group of inspectors. Although similar allegations are made in the Albert case related to nonpayment of overtime, Judge Edwards finds that there are several factual and legal distinctions between it and the other 12 matters. First, Albert brings his FLSA and KWHL claims in the form of a class action on behalf of himself and similarly situated Electrical Inspectors. Albert is the only case with collective claims. Additionally, he brings claims on behalf of himself and the same collective group under the OMFWA. Whether these Ohio claims can even be heard in the Court is for the District Judge to determine, but their presence further distinguishes the matter from the remaining 12. With these considerations in mind, Judge Edwards turns to whether specific risks of prejudice are overborne by the risk of inconsistent outcomes or savings of litigant and judicial resources achieved by consolidation. B. Efficiency versus Prejudice to Plaintiffs Absent prejudice, consolidation is generally the most efficient method of adjudicating cases arising from common issues of law or fact. Efficiency is determined by the need to analyze issues common to all parties, as well as overlap in discovery, witnesses, and evidence. Factors that may cause prejudice or confusion include complex legal theories and factual proof. Ms. Brown argues that the plaintiffs will be unduly burdened if the cases are consolidated for pre-trial purposes. She also argues that the factual distinctions between the cases are significant enough to cause potential confusion during discovery. Having considered the risk of prejudice to the plaintiffs, Judge Edwards finds that consolidation for pre-trial purposes is warranted as to 12 of the 13 related cases, as there is likely to be extensive overlap in discovery. Any potential burden on the plaintiffs in these matters is overborne by the various advantages of consolidation, including the commonality of legal and factual issues and the conservation of judicial resources. Although she finds consolidation to be appropriate for 12 of the matters, Brown's argument is well taken as to the Albert v. EnSite case. While there are factual and legal commonalities between Albert and the other cases, she finds that excluding it from consolidation would better serve the parties. The Albert class has yet to be certified, and its status as a collective action presents unique issues that could make coordinating discovery with the other cases difficult. In addition, the legal issues surrounding the OMFWA claims in Albert are entirely distinct from those of the other twelve cases and present discrete jurisdictional concerns. Accordingly, consolidation will be granted as to the 12 similar cases and denied as to Albert. III. Order For the stated reasons, Judge Edwards granted in part and denied in part Defendant EnSite USA's Motion to Consolidate. She consolidated the following cases for pre-trial purposes: Tonya Givens Brown v. EnSite USA, Inc., Case No.: 3:21-cv-00380-BJB; John Cunningham v. EnSite USA, Inc., Case No: 3:21-CV-00381-BJB; Richard Fleming v. EnSite USA, Inc., Case No: 3:21-CV-00382-BJB; Roger Dale Groves v. EnSite USA, Inc., Case No: 3:21-CV-00383-BJB; Philip Ray Miller v. EnSite USA, Inc., Case No: 3:21-CV-00384-BJB; Dave Schoenbachler v. EnSite USA, Inc., Case No: 3:21-CV-00385-BJB; Michael Townsend v. EnSite USA, Inc., Case No: 3:21-CV-00386-BJB; John Wells v. EnSite USA, Inc., Case No: 3:21-CV-00387-BJB; and Ronald Zingg v. EnSite USA, Inc., Case No: 3:21-CV-00388-BJB. Consolidation is denied as to Norris Albert v. EnSite USA Inc., Case No: 3:21-CV-00418-BJB, and it will proceed individually. The Court on its own initiative orders that the cases Mark Baber v. EnSite USA, Inc., Case No: 3:21-CV-00591-BJB; Kevin Perkins v. EnSite USA, Inc., Case No: 3:21-CV-00581-BJB; and Jack Buehner v. EnSite USA, Inc., Case No: 3:21-CV-00574, be consolidated with the nine similar cases. The District Judge will issue a separate order setting a Rule 16 Conference and requiring the parties to meet and create a litigation schedule pursuant to Rule 26(f). A full-text copy of the Court's Jan. 5, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/56v52ax6 from Leagle.com. ETHEREUMMAX: Kim Kardashian Named Defendant in Cryptocurrency Suit ------------------------------------------------------------------ Aislinn Keely, writing for The Block, reports that a class action against EthereumMax and its promoters has named reality star Kim Kardashian, boxer Floyd Mayweather Jr. and former NBA player Paul Pierce among the defendants. Plaintiff Ryan Huegrich brought the suit on behalf of all investors who purchased EthereumMax, or EMAX, tokens between May 14 and June 17 of 2021. The case alleges EthereumMax executives and promoters made false or misleading statements through social media advertisements and other promotional efforts. Huegrich claims the executives obscured their control over the tokens, as well as what percentage were available for public trading during the May to June timeline, in order to pump the price and sell their own portions of EMAX at a profit. They pumped the price by driving interest in the token through celebrity endorsements, including those of Kardashian, Mayweather Jr. and Pierce according to the complaint. "In plain terms, EthereumMax's entire business model relies on using constant marketing and promotional activities, often from "trusted" celebrities, to dupe potential investors into trusting the financial opportunities available with EMAX Tokens," said the complaint. The UK's Financial Conduct Authority chair, Charles Randell, expressed his concern over Kardashian's EMAX promotions in September 2021, saying it was imperative that crypto regulations cover paid-for advertising on online platforms. EMAX tokens are ERC-20 tokens based on the Ethereum blockchain, but have no other connection to Ethereum itself, according to the case. The case alleges the name is another obfuscation by the EthereumMax defendants to dupe investors into believing they had deeper ties to the Ethereum network. "It would be akin to marketing a restaurant as "McDonald'sMax" when it had no affiliation with McDonald's other than the name similarity and the fact that both companies sell food products," argued the complaint. [GN] FEDERAL EXPRESS: Lundberg Sues Over Unlawful Labor Practices ------------------------------------------------------------ RICHARD LUNDBERG, on his own behalf and on behalf of those similarly situated, Plaintiffs v. FEDERAL EXPRESS CORPORATION Defendant, Case No. 1:22-cv-00167 (S.D.N.Y., January 7, 2022) is a class action brought by the Plaintiff, on behalf of all others similarly situated, due to Defendant's alleged violations of the New York City Human Rights Law and the New York Labor Law. The Plaintiff seeks unpaid back pay and front pay, compensatory damages, reasonable attorneys' fees and costs, interest, and all other appropriate legal and equitable relief on his own behalf pursuant to the NYCHRL as well as unpaid wages, statutory damages, liquidated damages, reasonable attorneys' fees and costs, interest, and all other appropriate legal and equitable relief pursuant to the NYLL. Plaintiff Lundberg is and at all relevant times was a citizen of New York who worked for Defendant from approximately April 2019 through December 2020, primarily at the facility located at 621 W. 48th Street, New York, New York, but also at other facilities, including but not limited to the facility on 42nd Street in Manhattan and at 51 20th Street, Brooklyn, New York. Federal Express Corporation provides courier delivery services worldwide and operates multiple facilities located in New York City.[BN] The Plaintiff is represented by: Kara Miller, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, Seventh Floor New York, NY 10004 Telephone: (212) 943-9080 Facsimile: (212) 943-9082 E-mail: kmiller@vandallp.com FIRST SOLAR: Bragar Eagel & Squire Reminds of March 8 Deadline -------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized stockholder rights law firm, announces that a class action lawsuit has been filed against First Solar, Inc. ("First Solar" or the "Company") (NASDAQ: FSLR) in the United States District Court for the District of Arizona on behalf of all persons and entities who purchased or otherwise acquired First Solar securities between February 22, 2019 and February 20, 2020, both dates inclusive (the "Class Period"). Investors have until March 8, 2022 to apply to the Court to be appointed as lead plaintiff in the lawsuit. On January 15, 2020, Barclays reported that First Solar had "seemingly been, in large part, priced-out of the U.S. downstream solar market" and that the Company had concealed its rapidly declining market share through misleading financial reporting by including projects in its Project Development pipeline that had actually been completed in prior years. On this news, First Solar's stock fell $4.03, or 7%, to close at $54.75 per share on January 15, 2020, thereby injuring investors. Then, on February 6, 2020, Barclays stated that, in an attempt to gain back its market share, First Solar was "bidding more aggressively, leading to lower [Project Development contract] prices, and finally cutting into margins." On this news, First Solar's stock fell $0.45 to close at $52.65 per share on February 6, 2020, thereby injuring investors further. Then, on February 20, 2020, First Solar announced that it was exploring a sale of its Project Development Business. The Company also disclosed that it was experiencing "challenges with regard to certain aspects of the overall cost per watt" and that it would not be realizing its cost per watt goals. On this news, First Solar's stock fell $8.73, or 15%, to close at $50.59 per share on February 21, 2020, thereby injuring investors further. If you purchased or otherwise acquired First Solar shares and suffered a loss, are a long-term stockholder, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Alexandra Raymond by email at investigations@bespc.com, telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contacts Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B. Raymond, Esq. (212) 355-4648 investigations@bespc.com www.bespc.com [GN] FIRST SOLAR: Kuznicki Law Reminds of March 8 Deadline ----------------------------------------------------- The securities litigation law firm of Kuznicki Law PLLC issues this alert to shareholders First Solar, Inc. (NasdaqGS: FSLR), if they purchased the Company's shares between February 22, 2019 and February 20, 2020, inclusive (the "Class Period"). Shareholders have until March 8, 2022 to file lead plaintiff applications in the securities class action lawsuit. Shareholders are encouraged to contact us at https://kclasslaw.com/cases/securities/nasdaqgs-fslr/, by calling toll-free at 1-833-835-1495 or by email (dk@kclasslaw.com). Kuznicki Law PLLC is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Kuznicki Law PLLC Daniel Kuznicki, Esq. 445 Central Avenue, Suite 344 Cedarhurst, NY 11516 Email: dk@kclasslaw.com Phone: (347) 696-1134 Cell: (347) 690-0692 Fax: (347) 348-0967 https://kclasslaw.com [GN] FISKARS BRANDS: Weekes Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Fiskars Brands, Inc. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Fiskars Brands, Inc., Case No. 1:22-cv-00279 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Fiskars Group -- https://www.fiskars.com/ -- is a global lifestyle company with a unique portfolio of much-loved brands.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com FLOWER CHILD: Weekes Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Flower Child Forever, Inc. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Flower Child Forever, Inc., Case No. 1:22-cv-00281 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Flowerchild -- https://flowerchildfloristok.com/ -- provides flower delivery on stunning flower arrangements for all occasions.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com FYRN: Tavarez-Vargas Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Fyrn. The case is styled as Carmen Tavarez-Vargas, on behalf of himself and all others similarly situated v. Fyrn, Case No. 1:22-cv-00262-LGS (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Fyrn -- https://fyrn.com/ -- is a planet-first design company that has developed an innovative system of furniture utilizing patented hardware to produce everlasting products.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: jmizrahi@mizrahikroub.com GLASSO GROUP: Contreras Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Glasso Group Inc. The case is styled as Yensy Contreras, individually and on behalf of all others similarly situated v. Glasso Group Inc., Case No. 1:22-cv-00299 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Glasso Group -- https://www.glassogroup.com/ -- offers custom trophies and awards manufacturer and produce metal, crystal, glass awards and acrylic trophies.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com GOOGLE INC: Approval of Settlement in Street View Suit Affirmed --------------------------------------------------------------- The United States Court of Appeals for the Ninth Circuit affirms the district court's order certifying the class, approving the settlement agreement, and awarding attorneys' fees in the consolidated litigation styled IN RE GOOGLE INC. STREET VIEW ELECTRONIC COMMUNICATIONS LITIGATION. BENJAMIN JOFFE; LILLA MARIGZA; RICK BENITTI; BERTHA DAVIS; JASON TAYLOR; ERIC MYHRE; JOHN E. REDSTONE; MATTHEW BERLAGE; PATRICK KEYES; KARL H. SCHULZ; JAMES FAIRBANKS; AARON LINSKY; DEAN M. BASTILLA; VICKI VALIN; JEFFREY COLMAN; RUSSELL CARTER; STEPHANIE CARTER; JENNIFER LOCSIN, Plaintiffs-Appellees, DAVID LOWERY, Objector-Appellant v. GOOGLE, INC., Defendant-Appellee, Case No. 20-15616 (9th Cir.). In the consolidated class action lawsuit, the Plaintiffs alleged, on behalf of an estimated 60 million people, that Google illegally collected their Wi-Fi data through its Street View program. After a decade of litigation, including a complex, three-year forensic investigation to confirm the standing of the 18 Named Plaintiffs, the parties reached a settlement agreement that provided for injunctive relief, cy pres payments to nine Internet privacy advocacy groups, fees for the attorneys, and service awards to class representatives--but no payments to absent class members. The district court approved the proposed settlement, finding that it was not feasible to distribute funds directly to class members given the class size and the technical challenges to verifying class members' claims. David Lowery, one of two objectors to the settlement proposal, appeals the district court's approval of the settlement and grant of attorneys' fees. He argues that the district court should not have approved the settlement because it was feasible to distribute funds to class members, and that if it truly was not feasible to do so, then the district court should not have certified the class. He also asserts that the settlement violated the First Amendment's prohibition on compelled speech, that the cy pres recipients had improper relationships with the parties and class counsel, that the district court awarded excessive attorneys' fees, and that class counsel and the class representatives breached their fiduciary duties. Background In 2007, Google launched Street View, a web-based technology that would eventually provide users with panoramic street-level images from numerous points along roads throughout the world. To obtain the images for Street View, Google deployed a fleet of specially adapted cars ("Street View Vehicles"). As it turned out, however, these vehicles did not simply take photographs; they were also equipped with Wi-Fi antennas and software designed to collect, decode, and analyze various kinds of data commonly transmitted over Wi-Fi networks. The Street View Vehicles collected basic identifying information--such as signal strength, broadcasting channel, data transmission rate, media access control ("MAC") address, and Service Set Identifier ("SSID")--from Wi-Fi networks along the roads they travelled, apparently for the purpose of providing enhanced, "location-aware" services to Street View users. In May 2010, Google revealed that its Street View Vehicles had been collecting not just network identifying information, but also payload data--that is, substantive information such as emails, usernames, passwords, videos, photographs, and documents--that Internet users transmitted over unencrypted Wi-Fi networks when the Street View Vehicles were nearby. In total, the Street View Vehicles apparently collected around three billion frames of raw data from wireless networks, including approximately 300 million frames containing payload data. In November 2010, the Plaintiffs filed a Consolidated Class Action Complaint asserting various state and federal claims, including violations of the Wiretap Act, see 18 U.S.C. Section 2511, and seeking statutory and punitive damages as well as injunctive relief. Google moved to dismiss the complaint, and the district court dismissed the state law claims on pre-emption and standing grounds but held that Plaintiffs had adequately alleged violations of the Wiretap Act; see In re Google Inc. St. View Elec. Commc'ns Litig., 794 F.Supp.2d 1067, 1073-87 (N.D. Cal. 2011). The Court of Appeals affirmed in an interlocutory appeal. On remand, Google disputed the Named Plaintiffs' standing, and the district court appointed a special master to determine whether any communications from Named Plaintiffs' unencrypted Wi-Fi networks were actually acquired by Google. In June 2018, the parties reached a settlement agreement for a class consisting of "all persons who used a wireless network device from which Acquired Payload Data was obtained" from Jan. 1, 2007, through May 15, 2010. Class counsel estimated that this class included approximately 60 million members. The settlement agreement provided that Google would establish a $13 million settlement fund. The agreement did not provide for any direct payments to absent class members. Instead, after attorneys' fees, litigation expenses, service awards for the class representatives, notice and claims administration costs, and escrow account charges and taxes, the remainder of the fund was to be divided equally among one or more Proposed Cy Pres Recipients. The Plaintiffs would select the proposed recipients and, after disclosing the list to Google and consulting "in good faith regarding any concerns Google may have," would recommend them to the district court for approval. Each cy pres recipient would have to commit to use the funds to promote the protection of Internet privacy. The Plaintiffs proposed eight cy pres recipients without objection from Google: the Center on Privacy & Technology at Georgetown Law, the Center for Digital Democracy, Massachusetts Institute of Technology's Internet Policy Research Initiative, World Privacy Forum, Public Knowledge, the Rose Foundation for Communities and the Environment, the American Civil Liberties Union Foundation (ACLU), and Consumer Reports. The Electronic Privacy Information Center (EPIC) also successfully petitioned the district court to be included as a cy pres recipient without objection from Google or the Plaintiffs. In addition to the provisions regarding the $13 million settlement fund, Google agreed to the following injunctive relief for a period of five years after final approval of the settlement agreement: (i) To destroy all Acquired Payload Data within 45 days of Final Approval of the settlement agreement; (ii) Not to collect and store for use in any product or service Payload Data via Street View vehicles, except with notice and consent; (iii) To comply with all aspects of the Privacy Program described in the AVC and with the prohibitive and affirmative conduct described in the AVC, and to confirm to Plaintiffs in writing on an annual basis that it remains in compliance; and (iv) To host and maintain educational webpages that instruct users on the configuration of wireless security modes and the value of encrypting a wireless network. After the district court granted preliminary approval of the settlement agreement, two putative class members--David Lowery and David Franco--objected, and a group of state attorneys general, led by the Arizona Attorney General, filed an amicus brief objecting to the settlement agreement. At a fairness hearing in February 2020, Lowery's attorney and a representative from the Arizona Attorney General's Office both argued that cy pres relief was inappropriate and that the $13 million fund should instead be distributed to class members through either a claims process or a lottery distribution to class members who self-identified. Alternatively, Lowery argued that if it truly was not feasible to distribute the funds to class members, then class certification was inappropriate based on Federal Rule of Civil Procedure 23(b)(3)'s requirement that the class device be superior to other forms of adjudication. Lowery also argued that distribution of settlement funds to cy pres recipients constituted compelled speech in violation of the First Amendment, that the proposed recipients had improper pre-existing relationships with counsel and the parties, and that the requested 25% fee was excessive. In March 2020, the district court certified the class for settlement purposes under Rule 23(b)(3), granted attorneys' fees of 25% of the net settlement fund, and approved the settlement after considering the fairness factors of Rule 23(e)(2) and the reaction of the class members. The district court rejected Lowery's arguments about the feasibility of distribution and concluded that the inability to distribute funds did not preclude class certification. It also rejected Lowery's First Amendment argument, his objections to the cy pres recipients, and his objection to the fee award. Lowery timely appealed. Discussion Circuit Judge Bridget Anne Shelton Bade, writing for the Panel, notes that turning to Lowery's arguments, the Panel reiterates at the outset that strictly speaking, the settlement here is not, as Lowery describes it, a "cy pres-only settlement." Instead, it involves cy pres payments to third-party organizations and injunctive relief. Nonetheless, Judge Bade notes, in evaluating whether the settlement was fair, reasonable, and adequate under Rule 23(e)(2), the Court of Appeals first considers the district court's finding that it was not feasible to distribute funds directly to class members. Second, the Court of Appeals considers Lowery's argument that if it was infeasible to distribute funds directly to class members, the district court should not have certified the class. Third, the Court of Appeals asks whether the total value of the settlement to the absent class members--that is, the value they indirectly receive through the cy pres provisions plus the value of the injunctive relief--is enough to justify the district court's approval of the settlement agreement. Finally, the Court of Appeals turns to Lowery's argument that class counsel and the class representatives breached their fiduciary duties, his First Amendment challenge to the cy pres provisions, and his argument against the district court's award of attorneys' fees. As a threshold issue, the Panel rejects the suggestion that a district court may not approve a class-action settlement that provides monetary relief only in the form of cy pres payments to third parties. The Court of Appeals says it has repeatedly approved such settlements, see In re Google Referrer Header Priv. Litig., 869 F.3d at 741-42 (9th Cir. 2017); Lane v. Facebook, Inc., 696 F.3d at 822 (9th Cir. 2012), and, therefore, adopting a blanket rule against these arrangements, as Lowery advocates, would be incompatible with its precedents in which it has recognized that cy pres awards are an acceptable solution when settlement funds are not distributable. Judge Bade opines that the Panel's reasoning has not turned on what portion of the settlement funds--some or all--is not distributable. Instead, the Panel asks whether the cy pres disbursements "account for the nature of the Plaintiffs' lawsuit, the objectives of the underlying statutes, and the interests of the silent class members," citing Lane, 696 F.3d at 821. Mr. Lowery argues that, even if permissible in some circumstances, cy pres relief was inappropriate here because it was feasible to distribute settlement funds directly to class members. The district court found otherwise given the 60 million person class size and the $13 million Settlement Fund, and because it is unusually difficult and expensive to identify class members in this case. Mr. Lowery argues that the district court applied the wrong standard for determining feasibility by asking whether it is feasible to hand-deliver checks to every single class member instead of focusing on the ability of some class members to make a claim. The Court of Appeals disagrees. Lowery cites no authority indicating that a district court must consider only whether settlement funds are distributable to "some" of a class, nor does he explain what proportion of a class would satisfy his proposed "some class members" test, Judge Bade points out. More fundamentally, Judge Bade finds, even assuming that the subset of class members who claim payments would be small enough that the settlement fund could provide meaningful value to every claimant, Lowery does not identify a viable way for a claims administrator to verify any claimant's entitlement to settlement funds. Because self-identification would be pure speculation, and any meaningful forensic verification of claims would be prohibitively costly and time-consuming, Judge Bade affirms the district court's finding that it was not feasible to verify class members' claims as would be necessary to distribute funds directly to class members. Further, as proof of individual claims would be burdensome and distribution of damages costly, Lowery has not shown that the district court abused its discretion by approving the use of cy pres payments in the settlement. Alternatively, Mr. Lowery argues that if it was impossible to distribute settlement funds to class members, then class certification was an error of law because the class device was not superior to other available methods for fairly and efficiently adjudicating the controversy, as Rule 23(b)(3) requires. But cy pres provisions are tools for distributing unclaimed or non-distributable portions of a class action settlement fund to the 'next best' class of beneficiaries, Judge Bade opines. If it were feasible to distribute the settlement fund to the class members, a cy pres settlement would not be employed. Thus, in the guise of a Rule 23(b)(3) "superiority" argument, Lowery essentially repackages his argument that cy pres provisions, which by definition are used when settlement funds cannot be distributed to class members, are always improper, Judge Bade holds, among other things. Accordingly, the Panel next considers whether the settlement agreement provides sufficient value to the class, in the form of both cy pres relief and injunctive relief, to be fair, reasonable, and adequate under Fed. R. Civ. P. 23(e)(2). The Court of Appeals holds that the district court did not err by concluding that it does. Mr. Lowery argues that the settlement violates the First Amendment's prohibition on compelled speech by distributing class settlement funds to organizations that take lobbying positions adverse to his own interests and beliefs. The district court found no First Amendment violation, reasoning that the settlement agreement between the parties is not state action, and class members have the opportunity to exclude themselves from the settlement. As a threshold matter, the parties dispute whether a district court's approval of a settlement agreement constitutes state action such that it implicates First Amendment protections. Judge Bade says the Panel does not decide today whether, or under what circumstances, a district court's approval of a class action settlement agreement is "state action" for purposes of the First Amendment. Instead, the Court of Appeals holds that the settlement agreement does not compel class members to subsidize third-party speech because any class member who does not wish to "subsidize speech by a third party that he or she does not wish to support," citing Harris v. Quinn, 573 U.S. 616, 656 (2014), can simply opt out of the class. Mr. Lowery also argues that the district court abused its discretion by blindly applying a 25% benchmark for attorneys' fees without regard for the actual benefit the settlement conferred on the class. Judge Bade disagrees. udge Bade points out that the district court properly considered all relevant circumstances, including the value to the class members, and concluded that a 25% benchmark was appropriate. The Court of Appeals affirms the district court's fee award. Finally, Mr. Lowery argues that class certification was inappropriate because, by deciding to settle, class counsel and the class representatives breached their fiduciary duties. He asserts that under these fiduciary duties, class counsel and representatives cannot agree to accept excessive fees and costs to the detriment of absent class plaintiffs. Judge Bade opines that Lowery's fiduciary duty arguments are simply a repackaging of his other arguments against the settlement: he asserts that "class counsel structured a settlement to benefit third parties over any single absent class member," that the settlement included excessive attorneys' fees and lacked "any benefit for the class," and that counsel should have advised "absent class members of the superiority of opting out en masse." Because the Panel affirms the district court's finding that the settlement does provide adequate value to the class, and because there is no indication that counsel accepted excessive attorneys' fees or favored third parties over class members, Judge Bade holds that class counsel and class representatives did not breach their fiduciary duties by entering the settlement. Disposition The Court of Appeals affirms the district court's order certifying the class, approving the settlement agreement, and awarding attorneys' fees. A full-text copy of the Court's Opinion dated Dec. 27, 2021, is available at https://tinyurl.com/4cuwtb9r from Leagle.com. Adam E. Schulman (argued) -- adam.schulman@hlli.org -- and Theodore H. Frank -- ted.frank@hlli.org -- Hamilton Lincoln Law Center, Center for Class Action Fairness, in Washington, D.C., for the Objector-Appellant. Daniel A. Small (argued) -- dsmall@cohenmilstein.com -- and Robert W. Cobbs -- rcobbs@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, in Washington, D.C.; Elizabeth L. Cabraser -- ecabraser@lchb.com -- Michael W. Sobol -- msobol@lchb.com -- and Melissa Gardner -- mgardner@lchb.com -- Leiff Cabraser Heimann & Bernstein LLP, in San Francisco, California; Jeffrey L. Kodroff -- jkodroff@srkwlaw.com -- John A. Macoretta -- jmacoretta@srkw-law.com -- and Mary Ann Geppert -- mgeppert@srkattorneys.com -- Spector Roseman & Kodroff P.C., in Philadelphia, Pennsylvania, for the Plaintiffs-Appellees. Brian M. Willen (argued) -- bwillen@wsgr.com -- and Eli B. Richlin -- erichlin@wsgr.com -- Wilson Sonsini Goodrich & Rosati, in New York City; David H. Kramer -- dkramer@wsgr.com -- Wilson Sonsini Goodrich & Rosati, in Palo Alto, California; Paul N. Harold -- pharold@wsgr.com -- Wilson Sonsini Goodrich & Rosati, in Washington, D.C., for the Defendant-Appellee. Kate B. Sawyer (argued), Assistant Solicitor General; Keena Patel, Assistant Attorney General; Oramel H. Skinner, Solicitor General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; Steve Marshall, Attorney General, State of Alabama; Kevin G. Clarkson, Attorney General, State of Alaska; Leslie Rutledge, Attorney General, State of Arkansas; Lawrence G. Wasden, Attorney General, State of Idaho; Curtis T. Hill Jr., Attorney General, State of Indiana; Derek Schmidt, Attorney General, State of Kansas; Jeff Landry, Attorney General, State of Louisiana; Eric Schmitt, Attorney General, State of Missouri; Aaron D. Ford, Attorney General, State of Nevada; Wayne Stenehjem, Attorney General, State of North Dakota; Dave Yost, Attorney General, State of Ohio; Mike Hunter, Attorney General, State of Oklahoma; for Amici Curiae Thirteen Attorneys General for the States of Arizona, Alabama, Alaska, Arkansas, Idaho, Indiana, Kansas, Louisiana, Missouri, Nevada, North Dakota, Ohio, and Oklahoma. Ellen Bronchetti and Ron Holland, McDermott Will & Emery LLP; San Francisco, California; Wilber H. Boies and Timothy M. Kennedy, McDermott Will & Emery LLP, Chicago, Illinois; for Amici Curiae Legal Aid Organizations. Stuart T. Rossman, National Consumer Law Center, Boston, Massachusetts; Michael Landis, Center for Public Interest Research, Denver, Colorado; for Amici Curiae United States Public Interest Research Group Education Fund and National Consumer Law Center. GREAT DIVIDE: Guerrero Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Great Divide Brewing Company. The case is styled as Edelmira Guerrero, individually and on behalf of all others similarly situated v. Great Divide Brewing Company, Case No. 1:22-cv-00275 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Great Divide -- https://greatdivide.com/ -- is a pioneer of the Denver Brewery scene and has become one of the most decorated breweries in America since it's founding in 1994.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: jmizrahi@mizrahikroub.com HAIER US: Claims Over Defective Oven Doors in Haft Suit Narrowed ---------------------------------------------------------------- In the case, ASHER HAFT and ROBERT FISHER, individually and on behalf of all others similarly situated, Plaintiff v. HAIER US APPLIANCE SOLUTIONS, INC. d/b/a GE APPLIANCES, Defendant, Case No. 1:21-cv-00506-GHW (S.D.N.Y.), Judge Gregory H. Woods of the U.S. District Court for the Southern District of New York granted in part and denied in part the Defendant's motion to dismiss. Introduction Plaintiffs Haft and Fisher bought household wall and range ovens designed and manufactured by Defendant GE. The doors of those ovens were constructed with soda lime glass, which is prone to break or shatter. Both of the Plaintiffs' oven doors cracked after the one-year warranty period for repair or replacement expired, resulting in the Plaintiffs paying out-of-pocket to repair and replace the oven doors. The Plaintiffs allege that the Defendant knew that the soda lime glass oven doors were likely to fail but failed to disclose that fact prior to their purchase of the ovens. On behalf of themselves and putative New York, New Jersey, and Pennsylvania subclasses, the Plaintiffs bring claims for breach of warranty, breach of contract, and for violations of various state consumer protection statutes. The Defendant moved to dismiss those claims. Background Defendant GE is a home appliance company that "designs, manufactures, markets, advertises, distributes, and sells" its products, including wall and range ovens to consumers throughout the United States. On its website, GE represents that it is "America's #1 Appliance Brand," and that it "makes life better by designing and building the world's best appliances. From design to production to service, our goal is to help people improve their lives at home." It similarly states that it "makes appliances that work in service of you. When we build our world-class refrigerators, dishwashers, ovens, washers and dryers -- what we're really creating are good things, for life." The Defendant's ovens -- the appliance at issue in the case -- come with certain warranties. The warranties relevant to the case can be found on the fourth page of the ovens' user manual. The user manual's table of contents, appearing on the manual's first page, includes an entry for "Warranty" that is written in bold text and directs readers to page 4 of the manual. According to the Plaintiffs, "each of the Defendant's Ovens contains common design and/or manufacturing defects that cause the glass on their doors to shatter." Specifically, the Defendant's ovens feature an outer window made of soda lime glass. When heated, soda lime glass expands substantially more than other types of glass -- it has a "high coefficient of thermal expansion with very poor thermal shock resistance." Due to those characteristics, the glass doors in the ovens cannot withstand the same range of temperature changes as other types of glass; thus, the soda lime glass windows are prone to break or shatter. In addition, although soda lime glass must be tempered (or "heat strengthened") to increase its "thermal shock resistance," tempering can exacerbate those issues if the glass is "unevenly and/or poorly heated (i.e. tempered), or not heated to high enough temperatures to enhance the safety of the glass." According to the Plaintiffs, the proclivity of the soda lime glass to "crack, break, shatter, or explode" renders the glass unsuitable for use" in the Defendant's ovens. They further allege that "as a manufacturer of the ovens, and of numerous other household cooking appliances for more than 100 years, the Defendant knew, or should have known" that the soda lime glass was particularly susceptible to thermal shock failure" and that it was "inappropriate for use in glass oven doors." However, the Defendant "does not disclose that the Ovens suffer from the Defect." The Plaintiffs further allege that the defects with the glass "typically manifest" after the expiration of GE's warranties. As of March 9, 2021, the Defendant had not remediated or eliminated the defect in the ovens, nor had it "removed them from the stream of commerce." On Jan. 20, 2021, Plaintiff Haft filed a complaint against the General Electric Co. and the Defendant. The Plaintiffs then filed an amended complaint on March 9, 2021 (the "FAC") that added Plaintiff Fisher as a party. The Defendants moved to dismiss that amended complaint on April 13, 2021. The Plaintiffs filed their opposition on May 4, 2021. On May 11, 2021, the Defendants filed their reply. On Nov. 19, 2021, the parties stipulated to dismiss the General Electric Co. as a defendant. In a letter filed the same day, the Plaintiffs explained that the General Electric Co. had transferred all assets and liabilities, including liabilities relevant to the action, to the Defendant. According to them, the allegations in the FAC "applied equally" to both Defendants, "and the dismissal of the General Electric Co. has no material impact on the currently-pending motion to dismiss. Discussion A. Plaintiffs Do Not Sufficiently Plead a Breach of the Implied Warranty Judge Woods opines that the Plaintiffs have not adequately pleaded a claim for the breach of the implied warranty because the Defendant properly limited the scope of implied warranty to one-year. Modification or disclaimer of implied warranties is permissible under the U.C.C. and the analogous relevant provisions adopted by New York, New Jersey, and Pennsylvania so long as the exclusion is "by a writing and conspicuous." The implied warranty was properly limited because it was in writing, mentions merchantability, and is conspicuous. The Plaintiffs have not alleged that the manual was unavailable to them prior to purchase, nor do they allege that they objected to the warranty after receiving the manual. B. Plaintiffs' Do Not Sufficiently Allege a Breach of Express Warranty Similarly, Judge Woods holds that the Plaintiffs have not adequately pleaded a claim for breach of express warranty. He says, breach of express warranty claims require (i) a material statement amounting to a warranty; (ii) the buyer's reliance on this warranty as a basis for the contract with his immediate seller; (iii) the breach of this warranty; and (iv) injury to the buyer caused by the breach." The Plaintiffs' claim fails on the third element: They do not allege a breach of the warranty. The Plaintiffs have not pleaded that the soda glass oven doors failed within the year-long period in which Defendant was obligated to replace or repair the ovens; rather, the ovens failed more than two years after they were purchased. Thus, by its plain language, Plaintiffs have not alleged a breach of the express warranty. The Plaintiffs point to statements on the Defendant's website that it is "American's #1 Appliance Brand" and that when it builds its "world-class refrigerators, dishwashers, ovens, washers and dryers -- what its really creating are good things, for life." But simply being the #1 appliance brand does not provide any concrete representations about the quality of the ovens in the case. Without more express representations as to the specific ovens at issue, the Plaintiff's allegations are insufficient to state a claim for breach of the express warranty. C. Plaintiff's Have Not Sufficiently Pled that the One-Year Time Limitation for the Express and Implied Warranties Is Unconscionable. In the alternative, the Plaintiffs allege that the warranties' one-year time limitation is unconscionable and cannot be enforced. However, Judge Woods finds that they have not sufficiently pleaded unconscionability. Uniform Commercial Code Section 2-302 outlines the standard for unconscionability and has been adopted by the three states at issue in the case. That provision provides that "if the court as a matter of law finds the contract" including a warranty "to have been unconscionable at the time it was made the court may refuse to enforce the contract." Judge Woods gives the most weight to the Plaintiffs' allegation that the defect "typically" manifests after the expiration of the warranty. However, he opines that the mere fact that some ovens fail after the warranty period does not plausibly allege that the warranty period is unconscionable. Frankly, unless the law mandates lifetime warranties for all products (it does not), an allegation that a product fails after the warranty period expires simply cannot suffice to render a limited warranty unconscionable. Without more concrete allegations of substantive unconscionability, that allegation fails to meaningfully tip the scales in the Plaintiffs' favor -- especially when viewed in conjunction with the Plaintiff's conclusory allegations of procedural allegations and the lack of other, non-conclusory allegations of substantive unconscionability. Accordingly, the Plaintiffs have not pleaded that the implied warranty's one-year time limitation is unconscionable. D. Plaintiff Does Not Sufficiently Allege that the Warranties Failed in their Essential Purpose. In addition, the Plaintiffs do not sufficiently allege that the warranties failed in their essential purpose under U.C.C. Section 2-719(2). U.C.C. Section 2-719 allows parties to limit remedies available under a contract to repair or replace. Importantly, U.C.C. Section 2-719 specifically addresses the quantum of remedies that must be available in the event of a breach. As follows, numerous courts conclude that a plaintiff cannot allege a claim for failure of essential purpose where a cause of action occurs after the expiration of the warranty period. Judge Woods finds that the Plaintiffs do not adequately plead breach of warranty or that warranties are unconscionable. Therefore, they have not pleaded an entitlement to remedies for such a breach, and it cannot be said that the warranties failed in their essential purpose. E. Plaintiff Does Not Sufficiently Allege a Breach of Contract The Plaintiffs similarly fail to plead a common law breach of contract, Judge Woods opines. He says, to state a claim for breach of contract, the Plaintiffs must allege (1) the formation of a contract; (2) performance by plaintiff; (3) defendant's failure to perform; and (4) resulting damage. However, the only contract that the Plaintiffs identify in their Amended Complaint is the express warranty, and they do not argue otherwise in their opposition. Because their allegations are insufficient to state a breach of express warranty, those allegations are similarly insufficient to allege a breach of that contract – the Plaintiffs cannot evade the insufficiency of their allegations by restyling identical allegations and arguments as a breach of contract. The Plaintiffs also fail to allege a breach of the covenant of good faith and fair dealing, Judge Woods adds. The Plaintiffs allege that Defendant breached the implied covenant by failing to inform Plaintiffs of the defective soda lime glass doors and for failing to repair that defect. The Court has already determined that those allegations are insufficient to plead a breach of the Defendant's obligations under the express and implied warranties, and the Plaintiffs may not invoke the covenant of good faith and fair dealing to create obligations inconsistent with those the Court has already determined to be applicable to the warranties. Accordingly, the Plaintiffs fail to plead a breach of the implied covenant of good faith and fair dealing. F. Plaintiff's Consumer Protection Claims May Proceed Under New Jersey and Pennsylvania Law, but Not New York Law. The Plaintiffs' allegations under NY GBL Section 349 and 350 are not adequately pleaded because they fail to identify a sufficient connection between the alleged deceptive acts and New York. Nothing in the Plaintiffs' pleadings demonstrates that there is a sufficient connection between the transaction in New Jersey and the state of New York, thus they fail under the transaction-based theory. Under the alternative test, Plaintiff Haft fails to allege a sufficiently strong connection between the deceptive conduct and New York state. Nor is it sufficient that Plaintiff Haft purchased the oven "for use in his home in Brooklyn." Judge Woods, however, finds that the Plaintiffs allege facts sufficient to state a claim under the New Jersey Consumer Fraud Act ("NJCFA"). First, as to unlawful conduct, they sufficiently allege a fraudulent omission. They aver that Defendant knowingly concealed the defective soda lime glass doors, pointing to Defendant's response to customer complaints and news stories discussing the soda glass defect. As to ascertainable loss, the Plaintiffs allege, among other things, that they paid out-of-pocket to repair the ovens, and that they lost the benefit of their bargain. The Plaintiffs have also pleaded a causal nexus between the omission and their loss. Judge Woods finds that the Plaintiffs sufficiently state a claim under the Pennsylvania Unfair Trade Practice and Consumer Protection Law ("UTPCPL"). The Plaintiffs have sufficiently pleaded the Defendant's prerequisite duty to speak, since the Plaintiffs plead that Defendant knew of the defective soda glass doors, and failed to disclose that knowledge to consumers. They also sufficiently plead that they relied on the Defendant's failure to disclose the defect in purchasing the ovens. The Plaintiffs sufficiently allege that Plaintiff Fisher suffered damages as a result of his reliance. G. Injunctive Relief Finally, Plaintiffs have not alleged standing to pursue injunctive relief. "Injunctive relief is only proper when a plaintiff, lacking an adequate remedy at law, is likely to suffer from injury at the hands of the defendant if the court does not act in equity." Both Plaintiff Haft and Plaintiff Asher are past purchasers of the Defendant's ovens and have not pleaded that they are likely to purchase the oven in the future. Nor is it likely that they would do so, given their allegedly negative experiences with the Defendant's ovens. Thus, they lack standing to pursue injunctive relief. H. Leave to Amend Judge Woods will grant the Plaintiffs leave to replead the dismissed claims. While leave may be denied "for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party," those circumstances do not apply in the case. Any amended complaint must be filed no later than fourteen days from the date of the Order. Conclusion Judge Woods granted in part and denied in part the Defendant's motion to dismiss. As he stated, the Plaintiffs have not sufficiently alleged claims for breach of warranty or breach of contract and the Defendant's motion to dismiss is granted as to Counts I, II, and III in the Amended Complaint. Similarly, the Plaintiffs have not adequately pleaded claims under the New York General Business Law, and the Defendant's motion to dismiss is granted as to Count IV of the Amended Complaint. However, the Plaintiff's have sufficiently alleged violations of the NJFCA and UTPCPL, and the Defendant's motion to dismiss Counts V and VI is granted. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 38. A full-text copy of the Court's Jan. 5, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2p8tk3fu from Leagle.com. HIDRATE INC: Weekes Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Hidrate, Inc. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Hidrate, Inc., Case No. 1:22-cv-00278 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hidrate -- https://hidratespark.com/ -- creates a smart water bottle that tracks users' hydration over time and syncs with their phones to remind them to drink water.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com HOLLYWOOD, CA: Florida Appeals Court Flips Kellerman Suit Dismissal ------------------------------------------------------------------- In the case, JOHN KELLERMAN and ROBERT ALLEN, Appellants v. THE BOARD OF TRUSTEES OF THE CITY OF HOLLYWOOD FIREFIGHTERS' PENSION SYSTEM and THE CITY OF HOLLYWOOD, Appellees, Case No. 4D20-2349 (Fla. Dist. App.), the District Court of Appeal of Florida, Fourth District, reversed the final order of dismissal entered in favor of the City of Hollywood and the Board of Trustees of the City of Hollywood Firefighters' Pension System. Background Plaintiffs Kellerman and Allen appeal a final order of dismissal entered in favor of the City and the Board. According to the second amended complaint's allegations and attachments, the Plaintiffs were each employed as firefighters for the City for over 20 years and retired in 2002 and 2003, respectively. In 1999, the firefighters' union and the City entered into a collective bargaining agreement ("the 1999 CBA") that contained a supplemental pension benefit to "current pension recipients" who had been retired or entered into the Deferred Retired Options Program ("DROP") for 10 years. In a fiscal year, if the annual investment return on the pension fund's assets exceeded 8%, then eligible recipients would receive a portion of the excess by way of this supplemental pension benefit, which is known as the "13th check." In October 2004, the City passed Ordinance 2004-25, which provided for the 13th check benefit ("the 2004 Ordinance"). In 2011, the City passed an ordinance that reduced this benefit, and the Plaintiffs brought a class action suit against the City and the Board, asserting various claims for breach of contract, violations of constitutional and statutory law, and declaratory judgment. The Board moved to dismiss the second amended complaint for lack of standing, arguing that a retiree's benefits are fixed to the pension plan in effect at the time he or she retired, the Plaintiffs retired in 2002 and 2003, and the 13th check benefit was not codified until the 2004 Ordinance was passed, and, thus, the Plaintiffs were not entitled to the 13th check benefit. The trial court granted the motion to dismiss for lack of standing on the basis that the Plaintiffs retired before 2004. Certain individual counts were also dismissed on other grounds, but are not challenged on appeal. Discussion The Plaintiffs argue on appeal that they are entitled to the 13th check benefit in accordance with the plain language of the 2004 Ordinance. The City and the Board maintain that a retiree's benefits are fixed in accordance with the pension ordinances in effect at the time of his or her retirement, and because the Plaintiffs retired before the enactment of the 2004 Ordinance, they are not entitled to the 13th check benefit enacted therein. The Appellate Court finds that the plain and ordinary meaning of "current pension recipients" includes people who are receiving payments from the pension fund when the Ordinance was enacted. Thus, under the plain language of the ordinance, the people eligible to receive the 13th check include anyone who was receiving pension payments and who had been retired or in DROP for at least 10 years prior to September 30 of the year for which the 13th check is to be paid. In other words, the 13th check provision applied to people who were already retired, and it was not merely a benefit for those who retired on the date the ordinance was passed and later. The Plaintiffs effectively alleged in the complaint that they were current pension recipients. They alleged that they retired in 2002 and 2003, respectively, and that they were current members of the pension system. They further alleged, "Beginning in 2014, for each of fiscal years 2013 through 2018, [the plaintiffs] each received annual supplemental pension benefit checks that were based improperly on the Board's calculations pursuant to the 2011 Ordinance." Finally, they alleged that they were injured when their 13th check benefit was reduced because of the wrongful enactment and/or application of 2011 Ordinance. The allegations, taken as true, in conjunction with the plain language of the 2004 Ordinance attached to the complaint, establish an actual injury, the Appellate Court holds. Thus, it says, the Plaintiffs sufficiently alleged standing. Order The Appellate Court reversed and remanded for further proceedings. Gross and Damoorgian, JJ., concur. Not final until disposition of timely filed motion for rehearing. A full-text copy of the Court's Jan. 5, 2022 Order is available at https://tinyurl.com/yckv9b27 from Leagle.com. Elliot B. Kula -- Elliot@kulalegal.com -- and William D. Mueller -- William@kulalegal.com -- of Kula & Associates, P.A., Miami, and Jared A. Levy -- jlevy@forthepeople.com -- of Morgan & Morgan, P.A. West, in Palm Beach, Florida, for the Appellants. Robert D. Klausner -- bob@robertdklausner.com -- Adam P. Levinson -- adam@robertdklausner.com -- and Blanca T. Greenwood -- Blanca@robertdklausner.com -- of Klausner, Kaufman Jensen & Levinson, P.A., in Plantation, Florida, for Appellee Board of Trustees of The City of Hollywood Firefighters' Pension System. J. Robert McCormack -- bob.mccormack@ogletree.com -- of Ogletree, Deakins, Nash, Smoak & Stewart, P.A., in Tampa, Florida, for Appellee The City of Hollywood. HOME DEPOT: To Pay Counsel $11.7MM in Fees; Banks' Suit Remanded ---------------------------------------------------------------- In the case, NORTHEASTERN ENGINEERS FEDERAL CREDIT UNION, PITTSFIELD COOPERATIVE BANK, PHENIX-GIRARD BANK, KELSEY O'BRIEN, FIRST FINANCIAL CREDIT UNION, et al., Plaintiffs-Appellees v. HOME DEPOT, INC., THE HOME DEPOT U.S.A., INC., Defendants-Appellants, Case No. 20-10667 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit issued an Order remanding the case and instructing the District Court to enter an order requiring Home Depot to pay the Class Counsel the sum of $11.733 million plus interest from the date of the amended fee award. Introduction In a previous appeal in the class action, In re Home Depot Inc., Customer Data Security Breach Litigation (Home Depot I), 931 F.3d 1065, 1072 (11th Cir. 2019), the Eleventh Circuit considered Home Depot's challenge to the attorney's fee the District Court awarded to the Class Counsel pursuant to a fee-shifting provision contained in the parties' court-approved settlement agreement. The District Court awarded an attorney's fee of $15.3 million. It did so by multiplying a lodestar amount of $11.733 million by a multiplier of 1.3; the multiplier was to compensate the Class Counsel for the risk they undertook in representing the plaintiff class. The Eleventh Circuit affirmed the lodestar amount but reversed the District Court's use of the multiplier to enhance it. It therefore remanded the case for the award of an attorney's fee of $11.733 million. On remand, the District Court awarded the Class Counsel an attorney's fee of $14.1 million, which was 33% of the benefit the class purportedly received pursuant to the settlement agreement. Background Between April 2014 and September 2014, Home Depot was the subject of a massive data breach. Hackers stole the debit and credit card information of approximately 56 million Home Depot customers and sold that information to thieves who then made thousands of fraudulent transactions using the customers' credit and debit card numbers. Following the data breach, the customers and the financial institutions that issued the compromised cards filed a series of class actions, alleging that Home Depot failed to secure its customers' data. The United States Panel on Multidistrict Litigation consolidated the actions in the Northern District of Georgia, where the District Court split the litigation into two separate tracks: a consumer track and a bank track. Home Depot I involved the so-called "bank track" comprised of a number of different financial institutions. In brief, the Class Representatives and Home Depot reached a settlement agreement, and the District Court approved it. As part of the agreement, Home Depot agreed to pay the Class Counsel "reasonable attorneys' fees, costs, and expenses" as determined by the District Court. The agreement, however, did not specify what a "reasonable" fee would be. Nor did it specify the method the District Court should use in determining the fee. Once the District Court approved the settlement agreement, the Class Counsel moved the court for an attorney's fee award of $18 million. The Class Counsel argued that this amount was reasonable under either the percentage method or the lodestar method and did not take a stance on which method the District Court should use. Home Depot, on the other hand, argued that the Court was required to use the lodestar method and suggested that a fee of $5.6 million was reasonable. The District Court found that the lodestar approach was the proper method of calculating attorney's fees and accepted the lodestar proposed by the Class Counsel. Id. To account for the "exceptional litigation risk that class counsel took in litigating this case," the Court then applied a multiplier of 1.3 to arrive at a total fee award of $15.3 million. Home Depot appealed the District Court's attorney's fee award, arguing that the attorney's fee award was excessive and therefore not "reasonable" within the meaning of the attorney's fee provision of the settlement. It was excessive, Home Depot contended, because the District Court (1) included time the Class Counsel spent on unrelated matters and (2) erroneously applied a "multiplier" to the lodestar to account for the Class Counsel's risk in undertaking the plaintiffs' representation. The Class Counsel countered Home Depot's arguments head on and defended the District Court's attorney's fee decision. The Class Counsel also filed a "conditional cross-appeal" in which they challenged the District Court's application of the percentage cross-check. The Class Counsel asked that if the Eleventh Circuit reversed or modified the attorney's fee award and remanded the case for reconsideration, it instructs the District Court to include the fee award in the class benefit when performing the cross-check of a new lodestar. On July 25, 2019, the Eleventh Circuit issued an opinion affirming the District Court's attorney's fee award "in all respects except one." It found no error in the District Court's calculation of the lodestar of $11.733 million and therefore affirmed its use in fixing the attorney's fee award. But it found error in the Court's use of the 1.3 multiplier to compensate the Class Counsel for the risk in undertaking the plaintiffs' representation because the lodestar already took such risk into account. The Eleventh Circuit then remanded the case for "further proceedings consistent with its opinion." Following the Eleventh Circuit's decision, the Class Counsel and Home Depot disagreed as to Home Depot I's holdings and the District Court's task on remand. Home Depot contended that the Eleventh Circuit affirmed the $15.3 million attorney's fee award with one exception: The District Court erred in enhancing the $11.733 million lodestar with a 1.3 multiplier. The District Court's task on remand was ministerial: Enter judgment for Class Counsel for $11.733 million plus interest. The Class Counsel contended that the Eleventh Circuit vacated the attorney's fee award in its entirety and remanded the case with the instruction that the District Court redetermine the attorney's fee from scratch. The Class Counsel read the Eleventh Circuit's opinion as holding that the District Court's error in applying the 1.3 multiplier somehow rendered its correct application of the lodestar infirm and therefore required the vacation of the attorney's fee award entirely. The District Court chose the percentage method the Class Counsel proffered. The Court awarded the Class Counsel $14.1 million plus interest from the date of the $15.3 million fee award, for a total of $14,532,418.31, and entered an order accordingly. Home Depot now appeals the District Court's new fee award. It argues the increased fee award should be reversed with instructions that the District Court awards the Class Counsel attorney's fees in the sum of $11.733 million plus interest. The Class Counsel disagrees and defends the District Court's new fee award. Discussion In Home Depot I, the Eleventh Circuit rejected the first ground of Home Depot's excessiveness argument but sustained its second ground. It therefore affirmed the attorney's fee award "in all respects except one": the enhancement of the $11.733 million lodestar via the 1.3 multiplier. It held that in a fee-shifting case like this one, it is inappropriate to use a multiplier to account for risk. The Eleventh Circuit says, the inappropriate enhancement of the lodestar via the 1.3 multiplier, however, did not render the lodestar infirm. To the contrary, it found the lodestar fully supported by the record. The lodestar represented a reasonable fee under the fee-shifting provision of the settlement agreement. The District Court erred in disregarding that implicit holding, which was included in the law of the case, and in opting to award an attorney's fee pursuant to the percentage method. The Court should have awarded the fee called for by the lodestar sans multiplier. As a final matter, the Eleventh Circuit addresses the issue of interest. On remand, the District Court awarded the Class Counsel interest on the $14.1 million percentage cross-check award from the date of the original fee award (Oct. 11, 2017). Home Depot argues that the District Court erred. The Eleventh Circuit looks first to the settlement agreement. The settlement agreement states that "if an appeal is taken from an order approving Class Counsel's fee request, Home Depot will pay interest on the amount awarded, as ultimately approved or reduced on appeal, at the same rate as applicable to any final judgment." This language thus directs the rate that should be used to calculate the interest but does not designate at what date the interest should begin to accrue. The Eleventh Circuit therefore turns to the Federal Rules of Appellate Procedure. Rule 37 governs the award of postjudgment interest by a district court after an appeal. When the appellate court affirms "a money judgment in a civil case," postjudgment interest "is payable from the date when the district court's [original] judgment was entered," unless the law provides otherwise. If the appellate court modifies or reverses a judgment, as was the case here, the mandate "must contain instructions about the allowance of interest." If the mandate is silent on the issue of interest, "the district court on remand has no choice but to begin postjudgment interest on the date of the amended judgment." Because the Eleventh Circuit did not provide instructions regarding interest in its prior opinion, the District Court was required to award interest from the date of the amended fee award (Jan. 23, 2020). Order For the forgoing reasons, the Eleventh Circuit vacated the District Court's order and remanded with instructions that the District Court awards the Class Counsel attorney's fees in the original lodestar amount of $11,773,932 plus interest from Jan. 23, 2020. A full-text copy of the Court's Jan. 5, 2022 Order is available at https://tinyurl.com/msyxj7k4 from Leagle.com. HONDA MOTOR: Chimicles Schwartz Investigates Potential Class Suit ----------------------------------------------------------------- Chimicles Schwartz Kriner & Donaldson-Smith LLP (CSK&D) is investigating a potential class action lawsuit related to reports that certain vehicles from various automobile manufacturers, including Honda, Subaru, Toyota, Mazda, Mitsubishi, etc. are equipped with unsafe low-beam headlights. It is reported that the low-beam headlights gradually dim over time. Dim headlights can pose a safety risk, preventing drivers from seeing a safe distance ahead, particularly at night. [GN] ICON FOUNDATION: Court Denies Shin's Bid to Dismiss Counterclaim ---------------------------------------------------------------- The U.S. District Court for the Northern District of California granted in part and denied in part the Plaintiff's motion to dismiss a class action counterclaim filed by the Defendant in the lawsuit entitled MARK SHIN, Plaintiff v. ICON FOUNDATION, Defendant, Case No. 20-cv-07363-WHO (N.D. Cal.). Plaintiff Mark Shin moves to dismiss a class action counterclaim filed by Defendant ICON Foundation, arguing that ICON's claims of money had and received, unjust enrichment, and restitution, and declaratory relief, are insufficiently pleaded or barred as a matter of law. The party in this lawsuit, the ICON Foundation, was formed to develop and support the ICON Network. The ICON Foundation is the largest holder of ICX tokens, owning about 10% of the total supply. What ICON refers to as the "ICON Community" is broader, consisting of owners of ICX, software developers, vendors, municipal governments, financial institutions, small and medium-sized businesses and universities, among others. Background The lawsuit appears to be a case of first impression, involving the ownership of cryptocurrency, District Judge William H. Orrick notes. The parties agree that Shin used a software glitch to create the cryptocurrency at issue. They disagree, however, as to who lawfully possesses it and what legal standards should apply. The ICON Network hosts a "delegated proof of stake" blockchain protocol, which allows for the creation and transaction of a cryptocurrency called "ICX." The ICON Network is decentralized--it is not controlled or maintained by any single entity, but exists simultaneously on computers all over the world. All ICX holders have a say in the ICON Network's operation and governance, in part by selecting delegates (called "Public Representatives" or "P-Reps") to serve in a governance role and to validate Network transactions. There are currently 143 P-Reps, however only the top 22 "Main P-Reps" validate transactions and govern the ICON Network, including the proposal and approval of any material software updates. The ICON Network also has a publicly available constitution that outlines its guiding and operating principles for "ICONists"--those who participate in the ICON Network. In order to select delegates, ICX holders "stake" and "delegate" their tokens as votes. To encourage ICX holders to participate in this process, the ICON Network rewards users who stake their tokens. ICX holders receive staking rewards based on the amount of ICX they have staked for as long as it remains staked. The Network sends the reward scores to the ICX holder's "wallet," which the holder can then redeem for ICX. A user can redeem a reward score of 1,000 for 1 ICX. However, ICX holders do not earn rewards for unstaking their tokens. On Aug. 22, 2020, the Main P-Reps approved a software update ("Revision 9") to the ICON Network. Despite pre-release testing, the update contained a software defect that allowed users to generate and receive an amount of tokens equal to the number of tokens that the user was attempting to unstake. The same day that the Revision 9 update was released, Shin attempted to unstake 25,000 of his ICX tokens to redelegate them from one P-Rep to another. Because of the glitch, he immediately received 25,000 tokens instead. Shin repeated the process and, in a matter of hours, had received almost 14 million new ICX tokens. At the time, each token was worth about 65 cents, meaning the total haul was worth nearly $9 million. Its value today is more than $21 million. Members of the ICON Community attempted to recover the ICX at issue from Shin, but he refused to return it. ICON contends that Shin funneled the ICX tokens to third-party exchanges, relatives, and acquaintances in an effort to put them beyond the reach of the Network. Mr. Shin filed suit on Oct. 20, 2020, seeking declaratory judgment that he owned the ICX tokens at issue and alleging claims of conversion, trespass to chattel, and prima facie tort against the ICON Foundation. After two rounds of motions to dismiss, his case has narrowed to claims of conversion and trespass to chattel. On Aug. 23, 2021, ICON filed a class action counterclaim against Shin, bringing two causes of action: money had and received, unjust enrichment, and restitution; and declaratory relief. Shin filed this motion to dismiss on Sept. 20, 2021. Discussion As a preliminary matter, although ICON pleaded its first cause of action as "money had and received/unjust enrichment/restitution," the parties treated money had and received and unjust enrichment as separate claims in their briefing and at oral argument. The Court also treats them as separate claims, primarily because after accepting ICON's allegations as true and drawing all reasonable inferences in its favor, one better fits the unique facts and circumstances at hand. I. Unjust Enrichment Given the novelty of the issues at hand, unjust enrichment is an appropriate cause of action here, Judge Orrick holds. ICON has not sufficiently pleaded another claim that would provide an adequate legal remedy, nor have the parties suggested a cause of action that better fits these facts. Notably, there is no breach of contract claim. Although Mr. Shin argued in his papers that ICON pleaded the existence of an enforceable contract, referencing the ICON constitution, the parties agreed at oral argument that there is no such contract between Shin and the ICON Foundation. This argument is supported by an inherent quality of the ICON Network: its decentralized nature. As ICON's counsel conceded at oral argument, even if the constitution could be construed as a valid contract, it is unclear whether the ICON Foundation would be in a position to enforce the constitution because this is a decentralized network. As argued thus far, an equitable cause of action best fits the unique case at hand, Judge Orrick finds. The question, then, is whether ICON has sufficiently pleaded the elements of a claim for unjust enrichment. The benefit is clear: ICON alleges that Shin received almost 14 million new ICX tokens with an estimated value at the time of nearly $9 million. Shin does not contest this--his arguments related to "benefit" are raised in the context of the money had and received claim, which focuses on a benefit to the Plaintiff, not the Defendant. ICON has also adequately pleaded that Shin unjustly retained this benefit at the expense of the ICON Community, Judge Orrick finds. ICON alleges that by minting millions of new ICX tokens, Shin materially diluted the value of tokens held by the ICON Community at the time. But for Shin's actions, ICON contends, the present-day value of ICX would be even higher than the current estimate of $21 million. Mr. Shin's strongest response was made with respect to the money had and received claim, but it also applies here, Judge Orrick notes. ICON has alleged that third-party exchanges froze approximately 6.7 million of the ICX tokens at issue, and that the federal government has seized $15 million in assets, including "Exploited ICX or other crypto or fiat currency that Shin acquired with the Exploited ICX." Shin argues that he cannot have been enriched when the money he received has been frozen by ICON and third parties and seized by the federal government. Judge Orrick holds that Shin's point is not persuasive. First, even if a "significant portion" of the ICX tokens was frozen or seized, that does not necessarily account for the entire amount of tokens that Shin acquired, nor the proceeds that purportedly resulted. Based on the face of the counterclaim, it is plausible that Shin retained at least some amount of the ICX tokens at issue or related proceeds. Moreover, if a defendant could avoid a claim of unjust enrichment--or any claims sounded in the principle--simply by funneling the improperly obtained benefit elsewhere, then such claims would be rendered toothless, Judge Orrick points out. That is the precise allegation against Shin, that he went to extreme lengths to transfer, convert, and launder the Exploited ICX in an effort to put them beyond the reach of the ICON Network and to retain as much as possible of the Exploited ICX and the proceeds therefrom. The same is true if the government seizes the benefit at issue, Judge Orrick holds. In a criminal context, a bank robber cannot avoid conviction simply because the federal government has seized the money that he purportedly stole, or because he gave that money to a friend. Commonsense compels a similar conclusion here, Judge Orrick points out. For these reasons, ICON has sufficiently pleaded a claim of unjust enrichment, at least at this stage of the litigation. Shin's motion to dismiss is, thus, denied on this claim. II. Money Had and Received The distinction between a claim for money had and received and one for unjust enrichment is that the former requires one person to receive money "which belongs to another," Judge Orrick states. This infuses an element of possession that ultimately sinks ICON's claim. Mr. Shin argues that ICON's claim for money had and received fails because ICON failed to plausibly allege that the ICX tokens at issue belonged to the ICON Community and instead made only conclusory assertions about ownership. ICON ontends that the ICX at issue are a unique, intangible asset that does not lend itself to the traditional concepts of title, possession, and control upon creation. It also argues that the counterclaim includes detailed, non-conclusory factual allegations regarding how and why the Network generates new tokens. But ownership is central to a claim for money had and received, Judge Orrick points out, citing English & Sons, Inc. v. Straw Hat Rests., Inc., 176 F.Supp.3d 926 (N.D. Cal. 2016). Judge Orrick agrees that the unique nature of ICX raises legitimate questions about the applicable law. However, ICON has proffered no other standard by which to evaluate ownership of the ICX at issue. Without more, its argument that all ICX, including the tokens at issue, "belongs" to the ICON Community is conclusory. ICON argues that new tokens are first generated onto the ICON network--not a user's or staker's computer--and belong to the entire ICON Community, including all current holders of ICX before they are delivered to a user's wallet. But this does not address with specificity the traditional notions of title, possession, or control that determine whether property in fact "belongs" to someone, Judge Orrick notes. Nor does ICON provide another standard by which to measure ownership. Without more, ICON's claim of money had and received is too conclusory to proceed. ICON's claim of money had and received is, therefore, dismissed with leave to amend. III. Declaratory Relief ICON seeks a declaration that: (1) the ICX at issue was generated as a result of a mistake; (2) Shin took undue advantage of an unintended malfunction in the Revision 9 update generating the ICX at issue; (3) Principles of equity and good conscience require the return and/or destruction of the ICX at issue; (4) Shin holds any proceeds or assets acquired with the ICX at issue in constructive trust for the benefit of the class; and (5) Shin should be ordered to return for the benefit of the class any proceeds or assets acquired with the ICX at issue or, alternatively, the ICX at issue should be destroyed. Judge Orrick allows the claim for declaratory relief to proceed. He opines that ICON is correct that it offers a distinct remedy in the form of destroying some of the ICX at issue. The availability of another remedy is particularly important in a case like this, which involves novel forms of property and related legal issues. As this litigation continues to take shape, Judge Orrick sees the value in preserving flexible remedies for whenever it might be resolved. Allowing the claim for declaratory judgment to move forward helps do that, providing another avenue to terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. ICON's claim for declaratory relief is unlike Shin's, which Judge Orrick earlier dismissed as needlessly duplicative. Shin sought declaratory judgment that the ICX tokens issued on Aug. 22, 2020, are his property and that he is entitled to exercise his property interests in the ICX tokens that he had accumulated prior to that date, and in the other types of tokens that he had acquired before and after that date. Shin later argued that his proposed declaratory relief was distinct from the relief sought in his other claims, because he could not recover damages for the harm that would ensue if, post-judgment, ICON continues to claim his lack of ownership or continues to take steps to interfere with his rights of ownership. But Shin's purported ownership of the ICX tokens would necessarily be decided in the adjudication of both his conversion and trespass to chattels claims, rendering any such declaratory judgment needlessly duplicative, Judge Orrick holds. A declaratory judgment asserting Shin's ownership offers no greater clarity or settlement of the rights between the parties than would a decision on these substantive claims. Accordingly, Shin's motion to dismiss ICON's claim for declaratory relief is denied. Conclusion For these reasons, Shin's motion to dismiss ICON's counterclaim is granted in part and denied in part, with leave to amend. The claim for unjust enrichment and restitution, as well as declaratory relief, may proceed. A full-text copy of the Court's Order dated Dec. 27, 2021, is available at https://tinyurl.com/2abn7f46 from Leagle.com. INTERFOCUS INC: Dos Santos Sues Over Unwanted Telemarketing Calls ----------------------------------------------------------------- BONNIE DOS SANTOS, individually and on behalf of all others similarly situated, Plaintiff v. INTERFOCUS, INC. d/b/a PatPat, Defendant, Case No. CACE-22-000347 (Fla. Cir. Ct., 17th Jud. Cir., Broward Cty., January 9, 2022) is a class action against the Defendant for violations of the Florida Telephone Solicitation Act. According to the complaint, the Defendant transmitted telephonic sales calls and text messages to the Plaintiff's cellular telephone number in an attempt to market its business without obtaining prior express written consent. The Plaintiff seeks injunctive relief to halt the Defendant's alleged illegal conduct, which has resulted in the invasion of privacy, statutory damages, annoyance, nuisance, and violation of statutory rights. Interfocus, Inc., doing business as PatPat, is a provider of electronic commerce services, with headquarters in Mountain View, California. [BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com JAGR AMSTERDAM: Weekes Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against JAGR Amsterdam LLC. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. JAGR Amsterdam LLC, Case No. 1:22-cv-00290 (S.D.N.Y., Jan. 11, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. JAGR Amsterdam LLC is a business entity registered with New York State Department of State.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street, Ste. 24th Floor New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com KALEIDA HEALTH: Cleary Sues Over Reduced Benefit Accruals' Rate --------------------------------------------------------------- ROXANNE CLEARY, LISA WENDLING, KIMBERLY MILLER, MARY CLARE BREIDENSTEIN, and ROBIN CHILTON, individually and on behalf of all others similarly situated, Plaintiffs v. KALEIDA HEALTH, KALEIDA HEALTH PENSION GROWTH PLAN, KALEIDA HEALTH RETIREMENT PLAN COMMITTEE, BOARD OF DIRECTORS OF KALEIDA HEALTH, and JOHN DOES 1-40, Defendants, Case No. 1:22-cv-00026 (W.D.N.Y., January 7, 2022) is a class action against the Defendants for violations of the Employee Retirement Income Security Act of 1974. The case arises from Kaleida's alleged method of establishing opening account balances guaranteed that the Plaintiffs' and Class members' opening account balance would be, and in fact was, smaller than the amount to which they would have been entitled to receive at normal retirement age had they terminated employment on June 30, 1999. As a result of the opening account balances being established at levels below the values of the pension benefits already accrued before the conversion, there were substantial periods of time after the conversion when the Plaintiffs and other Class members did not accrue any additional benefits under the Kaleida Health Pension Growth Plan. The Defendants knew or should have known this at all relevant times leading up to and after the date of conversion. Moreover, the Defendants failed to summarize the amendment made to Legacy Plans which created the Kaleida Health Pension Growth Plan in a manner to be understood by the Plaintiffs and Class members, which necessarily would have to include disclosure of both the significant reduction in the rate of future benefit accruals and the wear-away periods of time within which no benefits would be accrued, says the suit. Kaleida Health is a not-for-profit healthcare network, with its headquarters located at 726 Exchange Street, Buffalo, New York. [BN] The Plaintiffs are represented by: J. Nelson Thomas, Esq. Michael J. Lingle, Esq. Jessica L. Lukasiewicz, Esq. Adam T. Sanderson, Esq. THOMAS & SOLOMON LLP 693 East Avenue Rochester, NY 14607 Telephone: (585) 272-0540 E-mail: nthomas@theemploymentattorneys.com mlingle@theemploymentattorneys.com jlukasiewicz@theemploymentattorneys.com asanderson@theemploymentattorneys.com - and – Christen Archer Pierrot, Esq. 3959 N. Buffalo Rd. Orchard Park, NY 14127 Telephone: (716) 553-9899 E-mail: cap@archerpierrot.com LIN ROGERS: Heatley Wage-and-Hour Suit Goes to C.D. California -------------------------------------------------------------- The case styled JASON HEATLEY, individually and on behalf of all others similarly situated v. LIN ROGERS ELECTRICAL CONTRACTORS, INC. and DOES 1-50, inclusive, Case No. 30-2021-01234748, was removed from the Superior Court of California, County of Orange, to the U.S. District Court for the Central District of California on January 7, 2022. The Clerk of Court for the Central District of California assigned Case No. 5:22-cv-00035 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Business and Professions Code including failure to timely pay wages, failure to pay overtime wages, meal period violations, rest period violations, recovery period violations, failure to reimburse for necessary business expenditures, wage statement violations, waiting time penalties, and unfair competition. Lin Rogers Electrical Contractors, Inc. is a provider of electrical, lighting, and technology contracting services, headquartered in Alpharetta, Georgia. [BN] The Defendant is represented by: Douglas A. Wickham, Esq. LITTLER MENDELSON, P.C. 633 West 5th Street, 63rd Floor Los Angeles, CA 90071 Telephone: (213) 443-4300 Facsimile: (213) 443-4299 E-mail: dwickham@littler.com LINKEDIN CORP: Court Grants in Part Bid to Dismiss TopDevz Suit --------------------------------------------------------------- In the lawsuit captioned TOPDEVZ, LLC, et al., Plaintiffs v. LINKEDIN CORPORATION, Defendant, Case No. 20-cv-08324-SVK (N.D. Cal.), Magistrate Judge Susan Van Keulen of the U.S. District Court for the Northern District of California grants in part and denies in part the Defendant's motion to dismiss. The Plaintiffs, on behalf of a putative class of advertisers, allege that Defendant LinkedIn Corporation overstates the level of actual user engagement with ads placed on the LinkedIn platform in order to overcharge advertisers (Second Amended Complaint ("SAC")). All Parties have consented to the jurisdiction of a magistrate judge. Now before the Court is LinkedIn's motion to dismiss the Second Amended Complaint pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). The Court deems this motion suitable for determination without oral argument. Background The case resulted from consolidation of two cases against LinkedIn: TopDevz, LLC and Noirefy, Inc. v. LinkedIn Corp., No. 5:20-cv-08324-SVK (the "-8324 action") and Synergy RX PBM LLC v. LinkedIn Corp., No. 5:21-cv-00513-SVK (the "-0513 action"). Before the cases were consolidated, LinkedIn filed a motion to dismiss the original complaint in the -8324 action (the "First Motion to Dismiss"). The Court terminated that motion as moot after TopDevz and Noirefy filed a First Amended Complaint (the "FAC"). In the order consolidating the -8324 and -0513 actions, the Court ordered the Plaintiffs to file a consolidated class action complaint. The Plaintiffs thereafter filed the Consolidated Complaint. LinkedIn filed motions to dismiss and strike the Consolidated Complaint. In the August 3 Order, the Court granted LinkedIn's motion to dismiss the claims in the Consolidated Complaint for violations of California Unfair Competition Law, Cal. Bus. & Prof. C. Section 17200, et seq. ("UCL"), fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, breach of the implied covenant of good faith and fair dealing, and accounting, and denied LinkedIn's motions to dismiss and strike in other respects. The Court granted the Plaintiffs leave to amend the Consolidated Complaint. The Plaintiffs then filed the SAC. The SAC contains causes of action for: (1) violation of the California False Advertising Law, Cal. Bus. & Prof. Code, Sections 17500, et seq. ("FAL"); (2) violation of the California Unfair Competition Law, Cal. Bus. & Prof. C., Section 17200, et seq. ("UCL"); (3) breach of implied duty to perform with reasonable care; and (4) breach of implied covenant of good faith and fair dealing. LinkedIn now moves to dismiss the SAC, and the Plaintiffs oppose. Motion to Dismiss LinkedIn's motion to dismiss challenges all four causes of action in the SAC. 1. UCL Claim As explained in the August 3 Order, a corporate plaintiff may not bring a UCL claim in connection with a contract not involving either the public in general or individual consumers, who are parties to the contract if the corporate plaintiff is a sophisticated or large corporation. Judge Keulen finds that the Plaintiffs have not demonstrated that the Court's analysis of the standing issue in the August 3 Order was incorrect. In the August 3 Order, the Court held that although the Consolidated Complaint contained certain allegations suggesting that the Plaintiffs may be small businesses, the Plaintiffs did not plead any facts (such as their employee headcounts or other attributes) establishing that they are small and/or unsophisticated entities. In moving to dismiss the SAC, LinkedIn again argues that the Plaintiffs cannot invoke the protections of the UCL because the Plaintiffs are companies litigating commercial disputes, not consumers or members of the public that the UCL is meant to protect. LinkedIn first argues that the SAC still does not contain factual allegations showing that the Plaintiffs are small and/or unsophisticated. The Plaintiffs argue that new allegations in the SAC concerning their employee headcount, lack of in-house ad analytics departments or experts, and agreement to enter into form contracts with LinkedIn (rather than individually-negotiated contracts) sufficiently establish at the pleading stage that they are not large, sophisticated corporate customers. The Court finds these allegations sufficient at the pleading stage. Although some members of the class, which is defined to include all persons or entities who paid for the placement of advertisements on LinkedIn, may be large and/or sophisticated corporations, it is unclear at present whether such entities constitute a significant portion of the class, and thus on the present record the Court cannot conclude that the Plaintiffs lack standing to proceed on their UCL claims. Accordingly, although the Court finds that the Plaintiffs have failed to establish that the contracts at issue involve the public interest, the Court concludes that the Plaintiffs have standing to pursue an UCL claim because they have pleaded facts sufficient to demonstrate, at this stage of the litigation, that they are small and/or unsophisticated entities. Judge Keulen also finds, among other things, that the Plaintiffs have failed to sufficiently plead that their legal remedies are inadequate, as required to state a claim under the UCL. For these reasons, although the Plaintiffs have standing to bring a UCL claim, they have failed to plead that their legal remedies are inadequate, as is necessary to state a UCL claim. Accordingly, LinkedIn's motion to dismiss the UCL claims is granted. 2. FAL Claim The SAC includes an FAL claim that was not included in the Plaintiffs' Consolidated Complaint. California's FAL prohibits false advertising by prohibiting the dissemination of information related to disposal of goods or performance of services that is untrue or misleading, and which is known, or should be known, to be untrue or misleading. LinkedIn attacks the Plaintiffs' FAL claim on several grounds. Underlying some of LinkedIn's arguments concerning the FAL claim is the premise that the Plaintiffs fail to plead the FAL claim (as well as the UCL claim, to the extent it is sounds in fraud) with the specificity required under Rule 9(b) of the Federal Rules of Civil Procedure. The Plaintiffs' FAL claim is based on three types of statements made by LinkedIn during the process by which advertisers set up ad campaigns: (1) a statement on the "How billing works" page in LinkedIn Campaign Manager that "[y]ou only pay when someone clicks your ad" (which LinkedIn refers to in its motion to dismiss as the "Billing Statement"); (2) forecasted results; and (3) actual results. Because the Plaintiffs have not adequately specified the forecasted results, the Court cannot at this time determine whether, as LinkedIn argues, those statements were not likely to deceive a reasonable consumer. By contrast to the Plaintiffs' allegations regarding forecasted results, their allegations regarding LinkedIn's statements of actual results are more specific and include actual screenshots of actual results provided by LinkedIn, Judge Keulen notes. However, the Plaintiffs allege only that the pictured actual results are "substantially similar" to the ones they saw before creating their ad campaigns on LinkedIn. Because the Plaintiffs do not provide any additional detail as to how the screenshots are (and are not) "similar" to the metrics they viewed, and because they do not specifically identify which of the statements of actual results are alleged to be false, they have not satisfied Rule 9(b) pleading standards, Judge Keulen holds. Again, because the Plaintiffs have not adequately specified the Actual Results, the Court cannot at this time decide whether those statements were not likely to deceive a reasonable consumer. For the reasons discussed, although the Plaintiffs' allegations regarding the Billing Statement comply with Rule 9(b) requirements, the Plaintiffs have failed to show that they have an inadequate remedy at law. Accordingly, LinkedIn's motion to dismiss the FAL claim is granted and its motion to dismiss the Plaintiffs' claim under UCL's "unlawful" prong is granted. 3. Breach of the Implied Covenant of Good Faith and Fair Dealing In the August 3 Order, the Court found that the Plaintiffs' claim for breach of the implied covenant of good faith and fair dealing fails to identify the term of the contract that gives rise to the implied covenant. In the SAC, the Plaintiffs add an allegation that the payment provision of the LinkedIn Ads Agreement implies a covenant that LinkedIn would act fairly and in good faith by accurately calculating and charging that rate, which LinkedIn violated by inclusion of non-genuine engagement in the Rate. Although the Plaintiffs now identify the payment provision of the Ads Agreement as the source of the alleged implied covenant of good faith and fair dealing, LinkedIn argues that the Plaintiffs have again failed to state a claim for breach of the implied covenant, pointing to the disclaimer in the Ads Agreement that the Court cited in the August 3 Order. In that order, the Court dismissed the Plaintiffs' cause of action for breach of the implied covenant of good faith and fair dealing with leave to amend, finding that in light of the express disclaimer in the Ads Agreement that provides that "LinkedIn is not responsible for click fraud, fraudulent leads, technological issues or other potentially invalid activity by third parties that may affect the cost of running Ads," the Plaintiffs had failed to plead facts in the Consolidated Complaint showing that LinkedIn's alleged acts of calculating and communicating inflated ad metrics breached a duty of good faith and fair dealing. Judge Keulen finds, the Plaintiffs' effort to refocus their claim does not appear in the allegations of the SAC, which continues to assert that LinkedIn breached the implied covenant by charging for "non-genuine engagement" rather than only "engagement with their intended, human audience." Accordingly, the motion to dismiss the claim for breach of the covenant of good faith and fair dealing is granted. 4. Claim for Breach of Implied Duty of Reasonable Care LinkedIn argues that the Plaintiffs' claim for breach of the implied duty of reasonable care should be dismissed because they have not adequately identified the source of the implied duty to provide "accurate ad metrics." LinkedIn acknowledges that the Plaintiffs identify three sources give rise to the implied duty: (1) the LinkedIn Ads Agreement; (2) LinkedIn's course of conduct; and (3) industry practice. However, LinkedIn argues that the Plaintiffs' allegations are insufficient. The Plaintiffs argue that LinkedIn waived this argument. LinkedIn attacked the claim for breach of implied duty in the original Complaint but did not attack the same claim in its motion to dismiss the Consolidated Complaint. In the case, if the Court were to conclude that LinkedIn waived this argument, LinkedIn could raise it by a motion for judgment on the pleadings or other motion. The Court concludes that under the circumstances of this case, including the fact that the Plaintiffs amended their breach of implied duty claim before including it in the SAC, the Court will consider LinkedIn's arguments for dismissal of the cause of action for breach of the implied duty of reasonable care as a matter of judicial economy. As discussed, Judge Keulen notes, the contract expressly states that ad rates may be affected by non-genuine engagement. The Plaintiffs do not address this point in their opposition and argue only that industry practice compels provision of ad metrics. Judge Keulen points out that it is undisputed that LinkedIn provided ad metrics. For these reasons, LinkedIn's motion to dismiss the cause of action for breach of the implied duty of reasonable care is granted. Conclusion and Disposition As a result of the rulings set forth, all claims in the SAC are dismissed. Here, after carefully considering the relevant factors, the Court dismisses the SAC with prejudice. The SAC is the Plaintiffs' fourth attempt to plead causes of action in this case, and LinkedIn has now filed three motions to dismiss. The Plaintiffs have not been able to plead viable theories, even with the benefit of the guidance provided by LinkedIn's motions to dismiss and the Court's August 3 Order, and even after dropping certain legal theories and adding new ones. In addition, in opposition to the current motion to dismiss, the Plaintiffs rehash certain arguments already rejected by the Court. The Plaintiffs have not articulated how the defects in the SAC can be cured by amendment. Accordingly, the SAC is dismissed with prejudice. The Parties' Joint Discovery Statement is terminated as moot. A full-text copy of the Court's Order dated Dec. 27, 2021, is available at https://tinyurl.com/mryawryf from Leagle.com. MARATHON DIGITAL: Kirby McInerney Reminds of February 15 Deadline ----------------------------------------------------------------- The law firm of Kirby McInerney LLP reminds investors that a class action lawsuit has been filed in the U.S. District Court for the District of Nevada on behalf of those who acquired Marathon Digital Holdings, Inc. f/k/a Marathon Patent Group, Inc. ("Marathon" or the "Company") (NASDAQ: MARA) securities from October 13, 2020 through November 15, 2021, inclusive (the "Class Period"). Investors have until February 15, 2022 to apply to the Court to be appointed as lead plaintiff in the lawsuit. Marathon is a digital asset technology company that mines cryptocurrencies with a focus on the blockchain ecosystem and the generation of digital assets in U.S. In October 2020, Marathon announced the formation of a new joint venture with Beowulf Energy LLC ("Beowulf") purportedly focused on delivering low-cost power to Marathon's Bitcoin mining operations (the "Beowulf Joint Venture"). In connection with that joint venture, Marathon entered into a series of agreements with multiple parties to design and build a data center in Hardin, Montana (the "Hardin Facility"), issuing 6 million shares of its common stock to the parties of those agreements. On November 15, 2021, Marathon disclosed that "[d]uring the quarter ended September 30, 2021, the Company and certain of its executives received a subpoena to produce documents and communications concerning the Hardin, Montana data center facility[,]" and advised that the U.S. Securities and Exchange Commission ("SEC") "may be investigating whether or not there may have been any violations of the federal securities law." On this news, Marathon's stock price declined by $20.52 per share, or approximately 27.03%, from $75.92 per share on November 12, 2021 to close at $55.40 per share on November 15, 2021. The lawsuit alleges throughout the Class Period, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Beowulf Joint Venture, as it related to the Hardin Facility, implicated potential regulatory violations, including U.S. securities law violations; and (ii) as a result, the Beowulf Joint Venture subjected Marathon to a heightened risk of regulatory scrutiny. If you purchased or otherwise acquired Marathon securities, have information, or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney LLP by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Kirby McInerney LLP is a New York-based plaintiffs' law firm concentrating in securities, antitrust, whistleblower, and consumer litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Additional information about the firm can be found at Kirby McInerney LLP's website: http://www.kmllp.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts: Kirby McInerney LLP Thomas W. Elrod, Esq. 212-371-6600 https://www.kmllp.com investigations@kmllp.com [GN] MCLEOD HEALTHCARE: Fails to Pay Proper Wages, Wilkes Suit Says -------------------------------------------------------------- Maya Wilkes, on behalf of herself and all others similarly situated, Plaintiff v. McLeod Healthcare Network, LLC, Defendant, Case No. 4:22-cv-00061-JD (D.S.C., January 6, 2022) is a collective action to recover overtime wages and liquidated damages brought pursuant to the Fair Labor Standards Act and a class action pursuant to the laws of South Carolina to recover unpaid wages and other applicable penalties. Allegedly, the Defendant knowingly and deliberately failed to compensate Plaintiff and the Putative Collective and Class Members for all hours worked each workweek and the proper amount of overtime on a routine and regular basis during the relevant time periods. Plaintiff Wilkes was employed by McLeod in Florence, South Carolina from approximately December of 2020 until March of 2021. McLeod Healthcare Network, LLC is an integrated health care network, comprised of seven hospitals which provide healthcare services to its patients throughout the State of South Carolina.[BN] The Plaintiff is represented by: J. Scott Falls, Esq. Ashley L. Falls, Esq. FALLS LEGAL, LLC 245 Seven Farms Drive, Suite 250 Charleston, SC 29492 Telephone: (843) 737-6040 Facsimile: (843) 737-6140 E-mail: scott@falls-legal.com ashley@falls-legal.com - and - Clif Alexander, Esq. Austin W. Anderson, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com MEDIFY AIR LLC: Saks Sues Over Mislabeling in Air Purifier ---------------------------------------------------------- Glenn Saks, individually and on behalf of all others similarly situated, Plaintiff, v. Medify Air LLC, Defendant, Case No. 22-cv-00028, (C.D. Cal., January 7, 2022), seeks redress for violations of the California Consumers Legal Remedies Act, California False Advertising Law, Business and Professions Code, California Unfair Competition Law, Business and Professions Code and in breach of express warranty, breach of implied warranty of merchantability and unjust enrichment. Medify Air LLC is a manufacturer, and distributor of air purifiers. Saks alleges that Medify falsely advertised its air purifiers as having been tested to remove 99.99% of airborne SARS-CoV-2 particles from the air. He claims that Medify has not tested a single air purifier to confirm whether or not its air purifiers are capable of destroying the virus particles. [BN] Plaintiff is represented by: Ryan J. Clarkson, Esq. Yana Hart, Esq. CLARKSON LAW FIRM, P.C. 555 Madison Ave., 5th Fl. New York, NY 10022 Tel: (213) 788-4050 Fax: (213) 788-4070 Email: rclarkson@clarksonlawfirm.com yhart@clarksonlawfirm.com MERCEDES-BENZ: Chimicles Schwartz Investigates Potential Class Suit ------------------------------------------------------------------- Chimicles Schwartz Kriner & Donaldson-Smith is investigating a potential class action lawsuit amid reports from 2019, 2020, and 2021 Mercedes owners that the 48 volt batteries suffer from a defect that causes the car battery to die at random times while the engine is off. Some owners have said that they were unable to jump-start the car and had to have it it towed to the dealership. The models reportedly affected include the E-, CLS-, GLE-/GLS-Class. [GN] META PLATFORMS: California Court Dismisses Facebook Securities Suit ------------------------------------------------------------------- Shearman & Sterling LLP, in an article for Mondaq, reports that on December 20, 2021, the United States District Court for the Northern District of California dismissed a putative class action against a social media company and certain of its executives under the Securities Exchange Act. In re Facebook, Inc. Sec. Litig., No. 5:18-CV-01725-EJD, 2021 WL 6000058 (N.D. Cal. Dec. 20, 2021). Plaintiffs alleged that the company made misrepresentations relating to a data breach and with respect to users' control of their data. The Court previously dismissed plaintiffs' prior two complaints but granted leave to replead. Addressing plaintiffs' third amended complaint, the Court held that plaintiffs still failed to adequately allege scienter for the data breach allegations and loss causation for the allegations about control of user data, and therefore dismissed the action without leave to replead. With respect to the data breach allegations, plaintiffs alleged that the company made false or misleading statements concerning the risks facing the company after the data breach and the results of an investigation conducted by the company. Id. at *3. The Court emphasized that the complaint itself alleged that the entity responsible for the data breach certified that it had deleted the misappropriated data; plaintiffs therefore needed to establish why defendants should have known the certifications were false. Id. The Court held that plaintiffs' added allegations—that the company had "embedded" three employees with a political campaign associated with the use of data from the breach—were still insufficient to establish scienter, as they failed to allege facts showing that the "embedded" employees knew the certification was false or that they raised any such concern to company executives. Id. at *4. Moreover, the Court rejected plaintiffs' attempt to establish scienter based on allegations that a company investigation uncovered additional information about the continued misuse of user data associated with the data breach, as plaintiffs failed to sufficiently connect the company's executives with the investigation or any specific factual information revealed through the investigation. Id. at *5. With respect to challenged statements concerning users' control of their data—which plaintiffs contended were false because the company allegedly continued to provide access to user data to certain third parties—the Court explained that plaintiffs failed to establish loss causation because the alleged decline in the company's stock price occurred more than one month after the company's alleged data access practices were publicly revealed. Id. at *7. Based on this gap in time, the Court held that plaintiffs failed to establish the necessary connection between the alleged corrective disclosure and the decline in the company's stock price. Id. [GN] MOMENTIVE GLOBAL: Bushansky to Halt Merger, Seeks Financials ------------------------------------------------------------ Stephen Bushansky, individually and on behalf of all others similarly situated, Plaintiff, v. Momentive Global, Inc., Susan L. Decker, David A. Ebersman, Erika H. James, Sheryl K. Sandberg, Alexander J. Lurie, Dana L. Evan, Brad D. Smith, Ryan Finley, Benjamin C. Spero and Serena J. Williams, Defendants, Case No. 22-cv-00058 (N.D. Cal., January 5, 2022), seeks to enjoin defendants and all persons acting in concert from proceeding with, consummating or closing the acquisition of Momentive by Zendesk, Inc., rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Under the terms of the merger agreement, each Momentive stockholder will receive 0.225 shares of Zendesk common stock for each share of Momentive common stock they own. Upon completion of the merger, it is estimated that current Momentive stockholders will own approximately 22% of the combined company and former Zendesk stockholders will own approximately 78% of the combined company. The proposed transaction is valued at approximately $4.13 billion. Bushansky claims that the registration statement, which recommends that Momentive stockholders vote in favor of the merger, omitted Momentive's and Zendesk's financial projections and the data and inputs underlying the financial valuation analyses that support the fairness opinions provided by Momentive's financial advisors Allen & Company LLC and J.P. Morgan Securities LLC. Momentive provides software solutions that help companies turn stakeholder feedback into action in the United States and internationally. Its common stock trades on the Nasdaq Global Select Market under the ticker symbol "MNTV." [BN] Plaintiff is represented by: Joel E. Elkins, Esq. WEISSLAW LLP 611 Wilshire Blvd., Suite 808 Los Angeles, CA 90017 Telephone: (310) 208-2800 Facsimile: (310) 209-2348. Email: jelkins@weisslawllp.com - and - Richard A. Acocelli, Esq. 305 Broadway, 7th Floor New York, NY 10007 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 - and - Alexandra B. Raymond, Esq. BRAGAR EAGEL & SQUIRE, P.C. 810 Seventh Avenue, Suite 620 New York, NY 10019 Tel: (646) 860-9158 Fax: (212) 214-0506 Email: raymond@bespc.com MORAN TRANSPORT: Giddeon Hits Undisclosed Biometric Data Retention ------------------------------------------------------------------ Tyrell Giddeon, individually and on behalf of all others similarly situated, Plaintiff, v. Moran Transportation Corporation, Defendant, Case No. 2022LA000032 (Ill. Cir., December 11, 2022), seeks an injunction requiring Defendants to cease all unlawful activity related to the capture, collection, storage and use of biometrics, statutory damages together with costs and reasonable attorneys' fees in violation of the Illinois Biometric Information Privacy Act. Defendant is a transportation facility located in Elk Grove Village, Illinois where Giddeon worked. It required Giddeon to provide his personalized biometric indicators and the biometric information, collected and stored his fingerprints and requires him to clock-in and clock-out by scanning his fingerprints into a fingerprint-scanning machine. Giddeon says that he has not been notified where his fingerprints are being stored, for how long will they be stored and what might happen to this information. [BN] Plaintiff is represented by: David Fish, Esq. Mara Baltabols, Esq. FISH POTTER BOLAÑOS, P.C. 200 East Fifth Avenue, Suite 123 Naperville, Illinois 60563 Tel: (312) 861-1800 Fax: (630) 778-0400 Email: docketing@fishlawfirm.com MT. NEBO: Fails to Properly Pay Servers, Adkins Suit Alleges ------------------------------------------------------------ CHASITY D. ADKINS, individually and on behalf of all others similarly situated, Plaintiff v. MT. NEBO FOODS, LLC d/b/a DEE JAY'S BBQ RIBS & GRILLE; DEWEY J. GUIDA ENTERPRISES, INC. d/b/a DEE JAY'S BBQ RIBS AND GRILLE; DEWEY J. GUIDA; and MICHAEL MCMULLEN, Defendants, Case No. 5:22-cv-00006-JPB (N.D. W. Va., January 7, 2022) is a class action against the Defendants for their failure to compensate the Plaintiff and similarly situated restaurant workers their earned minimum wages in violation of the Fair Labor Standards Act, the West Virginia Minimum Wage and Maximum Hours Law, and the West Virginia Payment and Collection Act. The Plaintiff has worked for the Defendants as a server in Hancock County, West Virginia from February 1, 2020 through the present. Mt. Nebo Foods, LLC is an operator of a restaurant under the name Dee Jay's BBQ Ribs & Grille, located at 380 Three Springs Dr., Weirton, West Virginia. Dewey J. Guida Enterprises, Inc. is an operator of a restaurant under the name Dee Jay's BBQ Ribs & Grille, located at 380 Three Springs Dr., Weirton, West Virginia. [BN] The Plaintiff is represented by: Adam L. Slone, Esq. BRIAN G. MILLER CO., L.P.A. 250 W. Old Wilson Bridge Rd., Suite 270 Worthington, OH 43085 Telephone: (614) 221-4035 Facsimile: (614) 987-7841 E-mail: als@bgmillerlaw.com - and – Robert E. DeRose, Esq. BARKAN MEIZLISH DEROSE COX, LLP 4200 Regent Street, Suite 210 Columbus, OH 43219 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 E-mail: bderose@barkanmeizlish.com NORTH BROWARD: Esterly Sues Over Illegal Access to Patients' Info ----------------------------------------------------------------- DANIEL ESTERLY, individually and on behalf of all others similarly situated, Plaintiff v. NORTH BROWARD HOSPITAL DISTRICT d/b/a BROWARD HEALTH, Defendant, Case No. 0:22-cv-60055 (S.D. Fla., January 8, 2022) is a class action against the Defendant for negligence, negligence per se, breach of contract, breach of implied contract, unjust enrichment, breach of confidence, and declaratory judgment. The case arises from the Defendant's failure to: (i) implement reasonable security procedures and practices to safeguard the personally identifiable information (PII) and protected health information (PHI) of the Plaintiff and similarly situated patients, (ii) disclose material facts surrounding its deficient data security protocols, (iii) and timely notify the victims of the unauthorized access to its networks between October 15 and October 19, 2021. As a result of the Defendant's alleged security failures and the data breach, the Plaintiff and Class members now and will forever face a substantial increased risk of identity theft. North Broward Hospital District, doing business as Broward Health, is a healthcare provider in Florida. [BN] The Plaintiff is represented by: Julie Braman Kane, Esq. COLSON HICKS EIDSON 255 Alhambra Circle, Penthouse Coral Gables, FL 33134 Telephone: (305) 476-7400 Facsimile: (305) 476-7444 E-mail: julie@colson.com - and – Norman E. Siegel, Esq. J. Austin Moore, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 E-mail: siegel@stuevesiegel.com moore@stuevesiegel.com NORTH BROWARD: Faces Hunter Suit Over Compromised Patients' Info ---------------------------------------------------------------- ANDREA HUNTER, individually and on behalf of all others similarly situated, Plaintiff v. NORTH BROWARD HOSPITAL DISTRICT d/b/a BROWARD HEALTH, Defendant, Case No. CACE-22-000372 (Fla. Cir. Ct., 17th Jud. Cir., Broward Cty., January 7, 2022) is a class action against the Defendant for negligence, breach of contract, breach of implied contract, breach of fiduciary duty, breach of confidences, and injunctive/declaratory relief. The case arises from the Defendant's failure to properly secure and safeguard Protected Health Information (PHI) of the Plaintiff and similarly situated patients and its failure to provide timely, accurate, and adequate notice that their PHI had been compromised. On or about January 1, 2022, the Defendant announced a security incident and breach of its computer networks that occurred October 15, 2021, where an intruder gained access to patient PHI, which it discovered on October 19, 2021. As a result of the Defendant's alleged security failures, the Plaintiff and Class members now and will forever face a substantial increased risk of identity theft. North Broward Hospital District, doing business as Broward Health, is a healthcare provider in Florida. [BN] The Plaintiff is represented by: Michael E. Criden, Esq. Lindsey C. Grossman, Esq. CRIDEN & LOVE, P.A. 7301 SW 57th Court, Suite 515 South Miami, FL 33143 Telephone: (305) 357-9000 Facsimile: (305) 357-9050 E-mail: mcriden@cridenlove.com lgrossman@cridenlove.com - and – Linda P. Nussbaum, Esq. NUSSBAUM LAW GROUP, P.C. 1211 A venue of the Americas, 40th Fl. New York, NY 10036 Telephone: (917) 438-9102 Facsimile: (212) 753-0396 E-mail: lnussbaum@nussbaumpc.com NORTH BROWARD: Fails to Protect Patients' Info, Valencia Claims --------------------------------------------------------------- BRENDA VALENCIA and DINA JOSEPH, individually and on behalf of all others similarly situated, Plaintiffs v. NORTH BROWARD HOSPITAL DISTRICT d/b/a BROWARD HEALTH, Defendant, Case No. CACE-22-000336 (Fla. Cir. Ct., 17th Jud. Cir., Broward Cty., January 7, 2022) is a class action against the Defendant for negligence, breach of contract, and breach of fiduciary duty. The case arises from the Defendant's alleged failure to: (i) properly secure and safeguard the personally identifiable information (PII) and protected health information (PHI) of the Plaintiffs and similarly situated patients; (ii) warn its current and former patients and employees of its inadequate information security practices; and (iii) effectively secure hardware containing protected PII and PHI using reasonable and effective security procedures free of vulnerabilities and incidents. As a result of the Defendant's security failures, the Plaintiffs and Class members now and will forever face a substantial increased risk of identity theft, says the suit. North Broward Hospital District, doing business as Broward Health, is a healthcare provider in Florida. [BN] The Plaintiffs are represented by: John A. Yanchunis, Esq. Ryan D. Maxey, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jyanchunis@ForThePeople.com rmaxey@ForThePeople.com - and – Todd S. Garber, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP One North Broadway, Suite 900 White Plains, NY 10601 Telephone: (914) 298-3281 E-mail: tgarber@fbfglaw.com - and – Seth A. Meyer, Esq. Alex J. Dravillas, Esq. KELLER LENKNER LLC 150 N. Riverside, Suite 4270 Chicago, IL 60606 Telephone: (312) 741-5220 E-mail: sam@kellerlenkner.com ajd@kellerlenkner.com NTT DATA: Mandala Appeals Ruling in Motion to Vacate Judgment Bid ----------------------------------------------------------------- Plaintiffs GEORGE MANDALA and CHARLES BARNETT filed an appeal from a court ruling entered in the lawsuit styled GEORGE MANDALA and CHARLES BARNETT, individually and on behalf of all others similarly situated, Plaintiffs v. NTT DATA, INC., Defendant, Case No. 18 Civ. 6591 (CJS), in the United States District Court for the Western District of New York. The lawsuit alleges violations of the Fair Credit Reporting Act. The Plaintiffs allege in the complaint that the Defendant has in the past, and continues to, utilize a job applicant screening process that systematically eliminates qualified African American applicants based on their race, color or national origin. In July 2019, the Court granted Defendant NTT Data, Inc.'s motion to dismiss Plaintiffs George Mandala's and Charles Barnett's putative class action Title VII disparate impact claims against NTT for its alleged policy not to hire individuals with criminal convictions. Mandala v. NTT Data, Inc., No. 18-CV-6591 CJS, 2019 WL 3237361 (W.D.N.Y. July 18, 2019). The judgment was subsequently affirmed on appeal by the Second Circuit Court of Appeals, and Plaintiffs' petition for a rehearing en banc was denied. On March 31, 2021, Plaintiffs filed a motion pursuant to Federal Rules of Civil Procedure Rule 60(b)(6) of the Federal Rules of Civil Procedure to vacate the Court's judgment so that Plaintiffs can file a first amended complaint. On December 6, 2021, Hon. Charles J. Siragusa entered an order denying Plaintiffs' motion to vacate judgment. The Plaintiffs now seek a review of this order. The appellate case is captioned as Mandala et al. v. NTT Data, Inc., Case No. 22-4, in the e United States Court of Appeals for the Second Circuit, filed on January 4, 2022.[BN] Plaintiffs-Appellants GEORGE MANDALA and CHARLES BARNETT, individually and on behalf of all others similarly situated, are represented by: Ossai Miazad, Esq. Christopher M. McNerney, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 E-mail: om@outtengolden.com cmcnerney@outtengolden.com - and - Rachel M. Kleinman, Esq. Tiffani Burgess, Esq. NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, Fifth Floor New York, NY 10006 Telephone: (212) 965-2200 E-mail: rkleinman@naacpldf.org tburgess@naacpldf.org OAK STREET: Glancy Prongay Files Securities Fraud Lawsuit --------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM"), on Jan. 11 disclosed that it has filed a class action lawsuit in the United States District Court for the Northern District of Illinois captioned Allison v. Oak Street Health, Inc., et al., (Case No. 1:22-cv-00149) on behalf of persons and entities that purchased or otherwise acquired Oak Street Health, Inc. ("Oak Street" or the "Company") (NYSE: OSH) securities between August 6, 2020 and November 8, 2021, inclusive (the "Class Period"). Plaintiff pursues claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). Investors are hereby notified that they have 60 days from January 11, 2022, the date of this notice to move the Court to serve as lead plaintiff in this action. If you suffered a loss on your Oak Street investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at www.glancylaw.com/cases/oak-street-health-inc/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com or visit our website at www.glancylaw.com to learn more about your rights. On November 8, 2021, Oak Street disclosed that on November 1, 2021 the Company received a civil investigative demand ("CID") from the United States Department of Justice ("DOJ"). According to the CID, the DOJ was investigating whether the Company violated the False Claims Act. The CID also requests documents and information related to the Oak Street's relationships with "third-party marketing agents" and Oak Street's "provision of free transportation to federal health care beneficiaries." On this news, the Company's share price fell $9.75, or more than 20%, to close at $37.14 per share on November 9, 2021, on unusually heavy trading volume. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that Oak Street maintained relationships with third-party marketing agents likely to provoke law enforcement scrutiny; (2) that Oak Street was providing free transportation to federal health care beneficiaries in a manner that would provoke law enforcement scrutiny; (3) that these activities may be violations of the False Claims Act; (4) that, as such, Oak Street was at heightened risk of investigation by the DOJ and/or other federal law enforcement agencies; (5) that, as a result, Oak Street was subject to adverse impacts related to defense and settlement costs and diversion of management resources; and (6) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased or otherwise acquired Oak Street securities during the Class Period, you may move the Court no later than 60 days from this notice to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts Glancy Prongay & Murray LLP, Los Angeles Charles H. Linehan, 310-201-9150 or 888-773-9224 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 www.glancylaw.com shareholders@glancylaw.com [GN] OWLET INC: Kuznicki Law Reminds of January 18 Deadline ------------------------------------------------------ The securities litigation law firm of Kuznicki Law PLLC issues this alert to shareholders of Owlet, Inc. f/k/a Sandbridge Acquisition Corporation (NYSE: OWLT; OWLT WS; SBG; SBG WS), if they purchased the Company's securities between March 31, 2021 and October 4, 2021, inclusive (the "Class Period") and/or held Sandbridge common stock held as of June 1, 2021 and were eligible to vote at Sandbridge's special meeting on July 14, 2021. Shareholders have until January 18, 2022 to file lead plaintiff applications in the securities class action lawsuit. Shareholders are encouraged to contact us at https://kclasslaw.com/cases/securities/nyse-owlt/, by calling toll-free at 1-833-835-1495 or by email (dk@kclasslaw.com). Kuznicki Law PLLC is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Kuznicki Law PLLC Daniel Kuznicki, Esq. 445 Central Avenue, Suite 344 Cedarhurst, NY 11516 Email: dk@kclasslaw.com Phone: (347) 696-1134 Cell: (347) 690-0692 Fax: (347) 348-0967 https://kclasslaw.com [GN] PENNSYLVANIA: Benjamin Class Can't Intervene in Jennings v. Wolf ---------------------------------------------------------------- In the lawsuit titled RUSSEL "JOEY" JENNINGS, RINALDO SCRUCI, ROBERT B. CARSON, LAUREN LOTZI, BETH LAMBO, MARIA KASHATUS, DAVID NAULTY, MAUREEN JORDA, JANINE WINSOCK, CYNTHIA MARTIN, TERRY D. HETRICK, SHARON MCCABE and VIOLA "VIANNE" CAYE, Plaintiffs v. TOM WOLF, TERESA D. MILLER, KRISTIN AHRENS, SUE RODGERS, MARK J. GEORGETTI, PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES, PENNSYLVANIA OFFICE OF DEVELOPMENT PROGRAMS, POLK CENTER and WHITE HAVEN CENTER, Defendants, Case No. 3:20-0148 (M.D. Pa.), Judge Malachy E. Mannion of the U.S. District Court for the Middle District of Pennsylvania denies the motion to intervene filed by the settlement class in Benjamin v. Dep't of Human Services On Jan. 29, 2020, Plaintiffs Russel Jennings, Rinaldo Scruci, Robert Carson, Lauren Lotzi, Beth Lambo, Maria Kashatus, David Naulty, Maureen Jorda, Janine Winsock, Cynthia Martin, Terry Hetrick, Sharon McCabe and Viola Caye, all residents of Intermediate Care Facilities for Individuals with Intellectual Disabilities, ("ICFs/IID"), in the state of Pennsylvania, by and through their guardians or substitute decision makers, filed a complaint in the District seeking equitable and injunctive relief on behalf of a prospective class. The complaint named as defendants Pennsylvania Governor Tom Wolf, the Pennsylvania Department of Human Services ("DHS"), Secretary of the Pennsylvania DHS Teresa Miller, Pennsylvania DHS Office of Developmental Programs ("ODP"), Deputy Secretary of ODP Kristin Ahrens, ICF/IID Polk Center, Polk Center Facility Director Sue Rodgers, ICF/IID White Haven Center, and White Haven Facility Director Mark Georgetti. The complaint contained four separate claims seeking injunctive relief, including claims alleging violations of: the Americans with Disabilities Act; the Rehabilitation Act; various Medicaid federal statutes and regulations incorporated into Pennsylvania Law; and the United States Constitution, 42 U.S.C. Section 1983. In response to the Plaintiffs' complaint, the Defendants filed a motion to dismiss on Aug. 31, 2020. While the parties filed briefs in response to the Defendants' motion to dismiss, further motions were filed including: a motion for class certification filed by the Plaintiffs on Oct. 14, 2020, for a proposed class of "284 residents of Polk Center and White Haven Center" pursuant to Federal Rules of Civil Procedure 23; a motion to intervene filed by the "certified Settlement Class in Benjamin v. Dep't of Human Services, Civil Action No. 1:09-cv-1182-JEJ (M.D. Pa. 2009)"; and a motion to stay class certification pending the resolution of the pending motions. In response, the Court granted the Defendants' motion to stay class certification while the Defendants' motion to dismiss and motion to intervene remained pending. Thereafter, on July 19, 2021, the Court denied the Defendants' motion to dismiss the Plaintiffs' complaint. The Court, therefore, will address the remaining motion to intervene filed by the settlement class in Benjamin v. Dep't of Human Services, (the "Benjamin Class" or "Proposed Intervenors"). For the reasons set forth in this Memorandum, the Court will deny the Proposed Intervenors' motion. Discussion Intervention under the Federal Rules of Civil Procedure is governed by Rule 24. Rule 24 sets forth the restrictions for claiming an intervention as of right or permissive intervention. As the Benjamin Class seeks to intervene under either form, the Court will review both paths for intervention in turn. A. Intervention as of Right Intervention as of right must be granted when a party claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest, Fed. R. Civ. P. 24(a)(2). The Proposed Intervenors claim that they maintain sufficient interest in this litigation as they look to ensure that their Revised Settlement is not disturbed or undermined in this lawsuit and assert the defense of claim preclusion as a bar against collateral attacks on the Revised Settlement. To consider that such an interest exists and may be impaired, the Court must determine whether the Proposed Intervenors could realistically assert a successful claim preclusion defense in the present litigation or that the Benjamin Class's rights in the Benjamin Settlement will be affected as a practical matter by a judgment in favor of the Plaintiffs. At issue is the reach of the Benjamin Settlement, which the Proposed Intervenors argue would be jeopardized by the current litigation and precludes the Plaintiffs' claims, Judge Mannion notes. In contrast, the Plaintiffs believe that the Settlement has functionally or practically terminated as to them and the Settlement does not serve to bar their claims. Though the Court does not make a determination as to whether the Benjamin Settlement has terminated, the terms of the Benjamin Settlement clearly do not apply to instances where the state takes steps to close an ICF/IID, Judge Mannion opines. As the Plaintiffs, through the current litigation, seek to stop the Defendants from moving the Plaintiffs irrespective of treatment plans by closing the Polk and White Haven Centers as non-ICF/IID-certified settings are not able to reasonably provide the same level of care as an ICF/IID-certified facility and alternative ICF's/IID are not and will not be available, the current litigation appears free from any preclusion, Judge Mannion holds. Therefore, the Court agrees that the Settlement does not serve to bar the Plaintiffs' claims and is insufficient to force the Court to grant intervention. Furthermore, the Proposed Intervenors do not and, in the Court's view, cannot show that the Benjamin Settlement would be negatively affected as a practical matter by a judgment in the Plaintiffs' favor. Instead, it appears that the goals of the Plaintiffs and the relief they seek are meant to ensure that they retain the choice between a community-based setting and an appropriate ICF/IID as set forth in the Benjamin Settlement. By ensuring that the Polk and White Haven Centers remain open and operational, the Plaintiffs would thus also ensure that, to the degree the Benjamin Settlement allowed, if any class member voluntarily wished to return to a state ICF/ID, the class member retained the option to do so. The Benjamin Class, thus, fails to sufficient allege that there is "a tangible threat to a legally cognizable interest," and so allowing the Benjamin Class to intervene in this matter is not necessary or mandatory by right, Judge Mannion points out. As the Proposed Intervenors have, therefore, failed to establish that a sufficient interest exists that may be negatively affected or impaired by the disposition of this matter, it is unnecessary for the Court to determine whether any such interest would be adequately protected. The Court, however, does suspect that the Plaintiffs will vigilantly advocate to protect the choice provided to the Benjamin Class through the Benjamin Settlement as the Defendants threaten to close the Polk and White Haven Centers. Therefore, the Proposed Intervenors' motion for intervention as of right will be denied. B. Permissive Intervention In comparison to an intervention as a matter of right, under Rule 24(b), a "court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact," Fed. R. Civ. P. 24(b)(1)(B). As the Defendants intend to close both the Polk and White Haven Centers, it is clearly appreciated that the current litigation must operate on a deadline, Judge Mannion observes. The introduction of the claims proposed by the Proposed Intervenors, however, would merely add further impediments to a timely resolution of the matter. The Court, therefore, finds that it would not be in the best interest of the parties to allow the Proposed Intervenors to raise further defenses that the Court has determined will not succeed on the merits. The Proposed Intervenors' motion for permissive intervention will, therefore, be denied. Conclusion For the reasons discussed, the Court will deny the Proposed Intervenors' motions to intervene as of right and deny the motion to permissively intervene. A separate order will follow. A full-text copy of the Court's Memorandum dated Dec. 27, 2021, is available at https://tinyurl.com/ms5psfn3 from Leagle.com. PHH MORTGAGE: Final Approval Order Issued in Cabral Class Suit -------------------------------------------------------------- Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts entered Final Approval Order in the case, Thomas Cabral and Cheryl Pantano, on behalf of themselves and all others similarly situated, Plaintiff v. PHH Mortgage Corporation and Ocwen Loan Servicing, LLC, Defendant, Civil Action No. 19-cv-12245-ADB (D. Mass.). On Aug. 12, 2021, a Preliminary Approval Order was entered by the Court preliminarily approving the proposed Settlement pursuant to the terms of the Class Action Settlement Agreement between Plaintiffs Thomas Cabral and PHH Defendants and Ocwen, and directing that notice be given to the Settlement Class. Pursuant to the notice requirements set forth in the Settlement Agreement and in the Preliminary Approval Order, the Settlement Class was notified of the terms of the proposed Settlement, of the right of members of the Settlement Class to opt-out, and of the right of members of the Settlement Class to be heard at a Final Approval Hearing to determine, inter alia: (1) whether the terms and conditions of the Settlement Agreement are fair, reasonable and adequate for the release of the claims contemplated by the Settlement Agreement; and (2) whether judgment should be entered dismissing this Action with prejudice; Prior to the Final Approval Hearing, a declaration of compliance with the provisions of the Settlement Agreement and Preliminary Approval Order relating to notice was filed with the Court as prescribed in the Preliminary Approval Order. The Class Members were therefore notified of their right to appear at the Final Approval Hearing in support of or in opposition to the proposed Settlement, the award of Attorney's Fees and Costs to the Class Counsel, and the payment of an Incentive Award. Having heard the presentation of the Class Counsel and the counsel for the PHH Defendants, having reviewed all of the submissions presented with respect to the proposed Settlement, having determined that the Settlement is fair, adequate and reasonable, having considered the Attorney's Fees and Cost application made by the Class Counsel and the application for an Incentive Awards to the Settlement Class Representatives, and having reviewed the materials in support thereof, and good cause appearing, Judge Burroughs approved the Settlement, including the plans for implementation and distribution of the settlement relief, and finds that the Settlement is, in all respects, fair, reasonable and adequate to the Class Members, within the authority of the parties and the result of extensive arm's-length negotiations. The Parties will effectuate the Settlement Agreement in accordance with its terms. The Settlement Class, which will be bound by this Final Approval Order and Judgment hereon, will include all members of the Settlement Class who did not submit timely and valid requests to be excluded from the Settlement Class. For purposes of the Settlement and this Final Approval Order, Judge Burroughs certified the following Settlement Class: All persons residing in the Commonwealth of Massachusetts to whom, within the Class Period, the PHH Defendants may have made in excess of two telephone calls regarding a debt within a seven-day period to their residence, cellular telephone, or other provided telephone number as reflected on the Class List. For purposes of Settlement only, the Plaintiffs are certified as representatives of the Settlement Class and the Class Counsel is appointed counsel to the Settlement Class. The Settlement Agreement is, in all respects, fair, reasonable and adequate, is in the best interests of the Settlement Class, and is therefore approved. All persons who have not made their objections to the Settlement in the manner provided in the Settlement Agreement are deemed to have waived any objections by appeal, collateral attack, or otherwise. The cash distributions provided for in the Settlement Agreement will be paid to the Settlement Class members, pursuant to the terms and conditions of the Settlement Agreement and Section 4.3 thereof. Upon the Effective Date, members of the Settlement Class who did not validly and timely opt-out shall, by operation of the Final Approval Order, have fully, finally and forever released, relinquished and discharged the Released Parties from the Released Claims as specified in the Release set forth in Section 3 of the Settlement Agreement. The Action is dismissed in its entirety with prejudice. Without affecting the finality of the Final Order in any way, the Court reserves jurisdiction over all matters relating to the interpretation, administration, implementation, effectuation and enforcement of the Order and the Settlement. A full-text copy of the Court's Jan. 5, 2022 Final Approval Order is available at https://tinyurl.com/3pjrjx4f from Leagle.com. PNC BANK: Ratulowski Claims Refund for Car Protection Agreements ---------------------------------------------------------------- Vincent I. Ratulowski, on behalf of himself and all others similarly situated, Plaintiff v. PNC Bank, N.A., Defendant, Case No. 22-cv-00004, (N.D. Ind., January 7, 2022), alleges breach of contract with regards to PNC's practice of knowingly collecting unearned fees for Guaranteed Automobile Protection (GAP) agreements after the early payoff of a customer's retail installment sales contract even if said fees have not been earned yet included in the payoff amount when the customer pays off their finance agreement early. Ratulowski alleges that PNC refused to refund these unearned GAP fees to its customers, claiming that PNC is contractually and legally obligated to do so as the assignee/creditor/lienholder of the finance agreement and GAP agreement. Ratulowski claim that PNC knowingly collects and keeps millions of dollars of unearned GAP fees from its customers each year. PNC Bank, N.A. is a national association bank chartered in the State of Delaware. PNC Auto Finance is the assignee of the finance agreements and GAP agreements of Ratulowski. [BN] Plaintiff is represented by: Robert W. Rock, Esq. Franklin D. Azar, Esq. FRANKLIN D. AZAR & ASSOCIATES, P.C. 14426 East Evans Avenue Aurora, CO 80014 Telephone: (303) 757-3300 Email: rockr@fdazar.com azarf@fdazar.com - and - Jason M. Frank, Esq. Andrew D. Stolper, Esq. Scott H. Sims, Esq. FRANK SIMS & STOLPER LLP 19800 MacArthur Blvd., Suite 855 Irvine, CA 92612 Telephone: (949) 201-2400 Email: jfrank@lawfss.com astolper@lawfss.com ssims@lawfss.com - and - Robert A. Clifford, Esq. Shannon M. McNulty, Esq. CLIFFORD LAW OFFICES, P.C. 120 N. LaSalle Street, 31st Floor Chicago, Illinois 60602 Telephone: (312) 899-9090 Email: rclifford@cliffordlaw.com smm@cliffordlaw.com PROCTER & GAMBLE: Aerosol Spray Products Contain Benzene, Suit Says ------------------------------------------------------------------- NANCY MARTINEZ, on behalf of herself and all others similarly situated, Plaintiff v. THE PROCTOR & GAMBLE COMPANY, Defendant, Case No. 6:22-cv-00056-CEM-EJK (M.D. Fla., January 10, 2022) alleges that the Defendant's Aerosol Spray Products are adulterated and/or contaminated with benzene, a known human carcinogen, that was not disclosed to consumers, including the Plaintiff, in the products' labelling, advertising or otherwise, in violation of the Florida Deceptive and Unfair Trade Practices Act. The Defendant allegedly distributes, markets and sells several over-the-counter aerosol dry shampoo and dry conditioner spray products under the brand names "Waterless," "Pantene," "Herbal Essences," "Aussie," "Hair Food" and "Old Spice," collectively known as Aerosol Spray Products, that are contaminated with benzene. The Plaintiff and the putative class suffered economic damages due to Defendant's alleged misconduct and seek injunctive relief and restitution for the full purchase price of the Aerosol Spray Products. The Procter & Gamble Company is an American multinational consumer goods corporation headquartered in Cincinnati, Ohio.[BN] The Plaintiff is represented by: R. Jason Richards, Esq. Bryan F. Aylstock, Esq. AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC 17 East Main Street, Suite 200 Pensacola, FL 32502 Telephone: (850) 202-1010 Facsimile: (850) 916-7449 E-mail: jrichards@awkolaw.com baylstock@awkolaw.com RAYTHEON TECHNOLOGIES: Faces Suit Over Restriction to Skilled Labor ------------------------------------------------------------------- JOHN DOE, individually and on behalf of all others similarly situated, Plaintiff v. RAYTHEON TECHNOLOGIES CORPORATION; PRATT & WHITNEY; BELCAN LLC; CYIENT, INC.; PARAMETRIC SOLUTIONS, INC.; AGILIS ENGINEERING INC.; MAHESH PATEL; STEVE HOUGHTALING; TOM EDWARDS; GARY PRUS and FRANK O'NEILL, Defendants, Case No. 3:22-cv-00035 (D. Conn., January 7, 2022) is a class action against the Defendants for violations of Sections 1 and 3 of the Sherman Act. According to the complaint, the Defendants entered into No-Poach Agreements to restrict the hiring and recruiting of engineers and other skilled laborers working on aerospace projects among their respective companies. The No-Poach Agreements did reduce competition for skilled aerospace workers' services and, as a result, suppressed the job mobility of and compensation to the Plaintiff and Class members below the levels that would have prevailed but for the illegal agreements. As a result of the Defendants' alleged misconduct, the Plaintiff and Class members have suffered injury and have been deprived of the benefits of free and fair competition for their labor on the merits. Pratt & Whitney, a division of Raytheon Technologies Corporation, is an aerospace engine manufacturer, with its principal place of business in East Hartford, Connecticut. Belcan LLC is a global supplier of engineering, supply chain, technical recruiting and information technology services, with a principal place of business in Cincinnati, Ohio. Cyient, Inc. is a technology company that provides outsource engineering services, with a principal place of business in East Hartford, Connecticut. Parametric Solutions, Inc. is an engineering services company that provides services in the aerospace industry, with its principal place of business in Jupiter, Florida. Agilis Engineering, Inc. is an engineering services company that provides services in the aerospace industry, with a principal place of business in Palm Beach Gardens, Florida. [BN] The Plaintiff is represented by: Jonathan M. Shapiro, Esq. AETON LAW PARTNERS LLP 311 Centerpoint Drive Middletown, CT 06457 Telephone: (860) 724-2160 E-mail: jms@aetonlaw.com - and – Joseph R. Saveri, Esq. Steven N. Williams, Esq. Anupama K. Reddy, Esq. Christopher K.L. Young, Esq. Abraham A. Maggard, Esq. JOSEPH SAVERI LAW FIRM, LLP 601 California Street, Suite 1000 San Francisco, CA 94108 Telephone: (415) 500-6800 Facsimile: (415) 395-9940 E-mail: jsaveri@saverilawfirm.com swillliams@saverilawfirm.com areddy@saverilawfirm.com cyoung@saverilawfirm.com amaggard@saverilawfirm.com - and – Steven N. Williams, Esq. JOSEPH SAVERI LAW FIRM LLP 40 Worth Street, Suite 602 New York, NY 10013 Telephone: (646) 527-7310 Facsimile: (212) 202-7678 E-mail: swilliams@saverilawfirm.com REATA PHARMACEUTICALS: Filbert Sues Over Drop in Share Price ------------------------------------------------------------ MATTHEW FILBERT, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. REATA PHARMACEUTICALS, INC., J. WARREN HUFF, and MANMEET S. SONI, Defendants, Case No. 4:22-cv-00012 (E.D. Tex., January 7, 2022) is a class action on behalf of the Plaintiff and all persons and entities that purchased or otherwise acquired Reata securities, and/or sold Reata put options, between November 9, 2020 and December 8, 2021, inclusive, pursuing claims against the Defendants under the Securities Exchange Act of 1934. Reata is a clinical-stage biopharmaceutical company that focuses on small-molecule therapeutics. One of its two lead product candidates is bardoxolone methyl, which is being developed for multiple indications, including chronic kidney disease (CKD) caused by Alport syndrome (AS). On March 1, 2021, Reata announced that it had submitted its new drug application (NDA) to the U.S. Food and Drug Administration for bardoxolone as a treatment of CKD caused by AS. According to the complaint, throughout the class period, the Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the FDA had raised concerns regarding the validity of the clinical study designed to measure the efficacy and safety of bardoxolone for the treatment of CKD caused by AS; (2) that, as a result, there was a material risk that Reata's NDA would not be approved; and (3) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On this news, the Company's stock price fell $25.31, or 46%, to close at $29.11 per share on December 9, 2021, on unusually heavy trading volume, says the suit. As a result of Defendants' alleged wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages.[BN] The Plaintiff is represented by: Willie C. Briscoe, Esq. THE BRISCOE LAW FIRM, PLLC 12700 Park Central Drive, Suite 520 Dallas, TX 75251 Telephone: (972) 521-6868 Facsimile: (346) 214-7463 E-mail: wbriscoe@thebriscoelawfirm.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com ROADRUNNER TRANSPORTATION: Seeks Review of Remand Order in Jauregui ------------------------------------------------------------------- Defendant Roadrunner Transportation Services, Inc. filed an appeal from a court ruling entered in the lawsuit styled GRISELDA JAUREGUI, individually and on behalf of all others similarly situated v. ROADRUNNER TRANSPORTATION SERVICES, INC.; and DOES 1 through 100, inclusive, Case No. 2:21-cv-04657-RGK-PD, in the U.S. District Court for the Central District of California, Los Angeles. As reported in the Class Action Reporter on June 15, 2021, the case was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California on June 7, 2021. The case arises from the Defendant's alleged violations of the California Labor Code and the California Business and Professions Code including unpaid overtime, unpaid meal period premiums, unpaid rest period premiums, unpaid minimum wages, final wages not timely paid, wages not timely paid during employment, non-compliant wage statements, failure to keep requisite payroll records, unreimbursed business expenses, and unfair business practices. The Defendant sought a review of the Order dated Sept. 8, 2021 wherein the Court concluded that Defendant has failed to meet its burden to establish that the Court has jurisdiction, and therefore granted Plaintiff's Motion and remanded the case to the state court from which it was removed. The Court now grants Defendant's petition for permission to appeal pursuant to 28 U.S.C. Section 1453(c). The appellate case is captioned as Roadrunner Transportation Services, Inc. v. Griselda Jauregui, Case No. 22-55058, in the United States Court of Appeals for the Ninth Circuit, filed on January 10, 2022.[BN] Defendant-Petitioner ROADRUNNER TRANSPORTATION SERVICES, INC., an unknown business entity, is represented by: Jennifer Hinds, Esq. Amberly A. Morgan, Esq. Frederic William Norris, Esq. HUSCH BLACKWELL LLP 300 South Grand Avenue, Suite 1500 Los Angeles, CA 90072 Telephone: (213) 337-6567 E-mail: jennifer.hinds@huschblackwell.com amberly.morgan@huschblackwell.com Plaintiff-Respondent GRISELDA JAUREGUI, individually, and on behalf of other members of the general public similarly situated, is represented by: Arby Aiwazian, Esq. Edwin Aiwazian, Esq. LAWYERS FOR JUSTICE, PC 410 Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265-1020 E-mail: edwin@calljustice.com ROTECH HEALTHCARE: Fails to Pay Proper Wages, Margrave Suit Says ---------------------------------------------------------------- JOHNSON MARGRAVE, individually and on behalf of all others similarly situated, Plaintiff v. ROTECH HEALTHCARE INC., Defendant, Case No. 4:22-cv-00015-BRW (E.D. Ark., January 11, 2022) seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees, as a result of Defendant's intentional misclassification of Plaintiff and other similarly situated employees as exempt the Fair Labor Standards Act and Arkansas Minimum Wage Act maximum hours requirements. As a result of Defendant's alleged intentional misclassification, Plaintiff and other similarly situated salaried employees were not paid the legally required overtime premium when they worked more than forty 40 hours in any one-week period. Plaintiff Margrave was employed by Defendant as a hospital account contact at its Conway location for approximately six years. Rotech Healthcare Inc. provides healthcare equipment, such as ventilators, nebulizers, and CPAP machines, for individuals to use in their homes. It has locations throughout the United States.[BN] The Plaintiff is represented by: Chris Burks, Esq. WH LAW | WE HELP 1 Riverfront PL - Suite 745 North Little Rock, AR 72114 Telephone: (501) 891-6000 E-mail: chris@wh.la SNAP INC: Faces Buscaglia Suit Over 26% Decline of Stock Price -------------------------------------------------------------- JIM BUSCAGLIA, and SYNDI BUSCAGLIA, individually and on behalf of all others similarly situated, Plaintiffs v. SNAP INC., EVAN SPIEGEL, DEREK ANDERSEN, JEREMI GORMAN, and REBECCA MORROW, Defendants, Case No. 2:22-cv-00175 (C.D. Cal., January 7, 2022) is a class action against the Defendants for violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, the Defendants made materially false and/or misleading statements about Snap's business, operations, and prospects in order to trade Snap securities at artificially traded prices between July 22, 2020 and October 21, 2021. Specifically, the Defendants failed to disclose to investors: (1) Apple Inc.'s privacy changes would have, and were having, a material impact on Snap's advertising business; (2) Snap overstated its ability to transition its advertising with Apple's privacy changes; (3) Snap knew of, but downplayed, the risks of the impact that Apple's privacy changes had on the company's advertising business; (4) Snap overstated its commitment to privacy; and (5) as a result of the foregoing, the Defendants' public statements and statements to journalists were materially false and/or misleading at all relevant times. When the truth emerged, Snap's stock price fell $19.97 per share, or 26 percent, to close at $55.14 per share on October 22, 2021, damaging investors. Snap Inc. is a camera company, with its principal executive offices located at 3000 31st Street, Santa Monica, California. [BN] The Plaintiffs are represented by: Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 - and – Frank R. Cruz, Esq. THE LAW OFFICES OF FRANK R. CRUZ 1999 Avenue of the Stars, Suite 1100 Los Angeles, CA 90067 Telephone: (310) 914-5007 TALIS BIOMEDICAL: Glancy Prongay Reminds of March 8 Deadline ------------------------------------------------------------ Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming March 8, 2022 deadline to file a lead plaintiff motion in the class action filed on behalf of investors who purchased or otherwise acquired Talis Biomedical Corporation ("Talis" or the "Company") (NASDAQ: TLIS) common stock pursuant and/or traceable to the registration statement and prospectus (collectively, the "Registration Statement") issued in connection with the Company's February 2021 initial public offering ("IPO" or the "Offering"). If you suffered a loss on your Talis investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at www.glancylaw.com/cases/talis-biomedical-corporation/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. In February 2021, Talis completed its IPO, selling 15,870,000 shares of common stock at a price of $16.00 per share. On March 8, 2021, Talis announced that it had withdrawn its EUA application for the Talis One COVID-19 test. In a press release, the Company revealed that "[i]n late February, the FDA informed the company that it cannot ensure the comparator assay used in the primary study has sufficient sensitivity to support Talis's EUA application." As a result, Talis "intends to initiate its previously planned clinical validation study in a point-of-care environment" to submit its EUA application "early in the second quarter of 2021." This study "was designed with a different comparator study, which Talis believes will address the FDA's concerns." On this news, the Company's stock price fell $1.80, or 12%, to close at $12.85 per share on March 8, 2021. Then, on August 10, 2021, Talis revealed that its "development timelines have been extended by delays in the launching of [Talis's] COVID-19 test and manufacturing scale." As a result, Talis "expect[s] to see [its] first meaningful revenue ramp in 2022." On this news, the Company's stock price fell $0.58, or 6%, to close at $8.39 per share on August 11, 2021, on unusually heavy trading volume. On August 30, 2021, after the market closed, Talis announced that its Chief Executive Officer, Brian Coe, had "stepped down" as President, CEO, and Director. On this news, the Company's stock price fell $1.00, or 11%, to close at $8.06 per share on August 31, 2021, on unusually heavy trading volume. On November 15, 2021, Talis announced that Brian Blaser was appointed as President, Chief Executive Officer, and Director of Talis effective December 1, 2021. However, a week after his appointment, on December 8, 2021, Talis announced that Brian Blaser had stepped down from his positions. On this news, the Company's stock price fell $0.55 per share, or more than 11%, to close at $4.28 per share on December 8, 2021. By the commencement of this action, Talis stock has traded as low as $3.81 per share, a more than 76% decline from the $16 per share IPO price. The complaint filed in this class action alleges that the Registration Statement was false and misleading and omitted to state material adverse facts. Specifically, Defendants failed to disclose to investors: (1) that the comparator assay in the primary study lacked sufficient sensitivity to support Talis's EUA application for Talis One COVID-19 test; (2) that, as a result, Talis was reasonably likely to experience delays in obtaining regulatory approval for the Talis One COVID-19 test; (3) that, as a result, the Company's commercialization timeline would be significantly delayed; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. If you purchased or otherwise acquired Talis common stock pursuant and/or traceable to the IPO, you may move the Court no later than March 8, 2022 to request appointment as lead plaintiff in this putative class action lawsuit. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to the pending class action lawsuit, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts Glancy Prongay & Murray LLP, Los Angeles Charles Linehan, 310-201-9150 or 888-773-9224 shareholders@glancylaw.com www.glancylaw.com [GN] TALKSPACE INC: Bronstein Gewirtz Reminds of March 8 Deadline ------------------------------------------------------------ Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Talkspace, Inc. ("Talkspace" or the "Company") (NASDAQ: TALK) and certain of its officers, on behalf of shareholders who purchased Talkspace common stock on May 19, 2021 entitled to vote at the special meeting of shareholders in connection with the merger between Talkspace and Hudson Executive Investment Corporation ("HEIC"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/talk. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1933. The Complaint alleges that the Defendants issued a materially false and misleading final proxy statement for the Merger which urged the shareholders to vote in favor of the deal. Specifically, the Proxy misrepresented Talkspace's business, financials, and prospects, by omitting, that: (1) Talkspace was experiencing significantly increased online advertising costs in its B2C business since the start of 2021; (2) Talkspace was experiencing lower conversion rates in its online advertising in its B2C business; (3) Talkspace was experiencing increased customer acquisition costs and more tepid B2C demand than represented to investors; (4) Talkspace was suffering from ballooning customer acquisition costs and worsening growth and gross margin trends; (5) Talkspace had overvalued its accounts receivables from certain of its health plan clients in its B2B business, which amounts required adjustment downward; and (6) as a result of (1)-(5) above, Talkspace's 2021 financial guidance was not achievable and lacked any reasonable basis in fact. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/talk or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Nathanson of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Talkspace you have until March 8, 2022, to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. Attorney advertising. Prior results do not guarantee similar outcomes. Contact: Bronstein, Gewirtz & Grossman, LLC Peretz Bronstein or Yael Nathanson 212-697-6484 | info@bgandg.com [GN] TALKSPACE INC: Misleads Stockholders to OK Merger Deal, Baron Says ------------------------------------------------------------------ IVAN M. BARON, individually and on behalf of all others similarly situated, Plaintiff v. TALKSPACE, INC., OREN FRANK, MARK HIRSCHHORN, HEC SPONSOR LLC, DOUGLAS L. BRAUNSTEIN, DOUGLAS G. BERGERON, JONATHAN DOBRES, ROBERT GREIFELD, AMY SCHULMAN, THELMA DUGGIN, HUDSON EXECUTIVE CAPITAL LP, and HEC MASTER FUND LP, Defendants, Case No. 1:22-cv-00163 (S.D.N.Y., January 7, 2022) is a class action against the Defendants for violation of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, the Defendants issued a materially false and/or misleading proxy statement with the U.S. Securities and Exchange Commission in order to convince shareholders to vote in favor of the proposed merger between Hudson Executive Investment Corporation (HEIC) and Talkspace. Specifically, the proxy misrepresented Talkspace's business, financials, and prospects, by omitting, inter alia, that: (a) Talkspace was experiencing significantly increased online advertising costs in its business-to-consumer (B2C) business since the start of 2021; (b) Talkspace was experiencing lower conversion rates in its online advertising in its B2C business; (c) Talkspace was experiencing increased customer acquisition costs and more tepid B2C demand than represented to investors; (d) Talkspace was suffering from ballooning customer acquisition costs and worsening growth and gross margin trends; (e) Talkspace had overvalued its accounts receivables from certain of its health plan clients in its B2B business, which amounts required adjustment downward; and (f) as a result of (a)-(e) above, Talkspace's 2021 financial guidance was not achievable and lacked any reasonable basis in fact. When the truth emerged, the price of Talkspace common stock declined precipitously to $2 per share, 80 percent below the price shareholders would have received if they had redeemed their shares instead of approving the merger less than one year earlier, the suit added. Talkspace, Inc. is a behavioral healthcare company with headquarters in New York, New York. Hudson Executive Capital LP is an investment advisory firm doing business in New York. HEC Master Fund LP is an investment fund in New York. [BN] The Plaintiff is represented by: Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com - and – Brian E. Cochran, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 200 South Wacker Drive, 31st Floor Chicago, IL 60606 Telephone: (312) 674-4674 Facsimile: (312) 674-4676 E-mail: bcochran@rgrdlaw.com - and – Richard W. Gonnello, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 420 Lexington Avenue, Suite 1832 New York, NY 10170 Telephone: (212) 432-5100 E-mail: rgonnello@rgrdlaw.com TALKSPACE INC: Robbins LLP Reminds of March 8 Deadline ------------------------------------------------------ Shareholder rights law firm Robbins LLP informs investors that a class action was filed on behalf of all holders of Talkspace, Inc. (NASDAQ: TALK, TALKW) common stock as of May 19, 2021, the record date for the special meeting of shareholders held on June 17, 2021, to consider approval of the merger between HEIC and Talkspace and entitled to vote on the merger. The complaint seeks remedies under the Securities Exchange Act of 1934 arising from the proxy statement issued in connection with the merger. Talkspace is a behavioral healthcare company. Talkspace, Inc. (TALK) Issued a False and Misleading Proxy in Support of its Merger According to the complaint, prior to the merger, Talkspace was named HEIC, with its shares trading on the Nasdaq under ticker symbols "HEC," "HECCW," and "HECCU." HEIC was a blank check company, also known as a SPAC. On January 13, 2021, HEIC announced it had entered into a merger agreement with Talkspace, a "purpose-built technology company designed to meet the unmet medical needs in behavioral health by improving access, decreasing costs, improving outcomes, and creating value for patients, providers, and employers." HEIC also touted the Company's future growth potential. On May 28, 2021, defendants issued the final proxy statement urging shareholders to vote in favor of the deal. However, the proxy omitted that: (i) Talkspace was experiencing significantly increased online advertising costs in its B2C business since the start of 2021; (ii) Talkspace was experiencing lower conversion rates in its online advertising in its B2C business; (iii) Talkspace was experiencing increased customer acquisition costs and more tepid B2C demand than represented to investors; (iv) Talkspace was suffering from ballooning customer acquisition costs and worsening growth and gross margin trends; and (v) Talkspace had overvalued its account receivables from certain of its health plan clients in its B2B business, which amounts required adjustment downward. On November 15, 2021, Talkspace issued a press release announcing its financial results for Q2 2021, stating that "the overall financial results for the third quarter were disappointing. Q3 Net Revenue came in below management expectations due to a lower number of B2C customers and a one-time non-cash reserve adjustment for credit losses on receivables related to prior periods." In a separate release issued the same day, Talkspace announced that, effective immediately, the CEO was stepping down, and his wife was stepping down from her position as Head of Clinical Services and Board member. The price of Talkspace stock has declined precipitously since the merger as the false and misleading nature of the proxy has come to light. By December 30, 2021, Talkspace was trading below $2 per share, 80% below the price shareholders would have received if they had redeemed their shares instead of approving the merger. If you held shares of Talkspace, Inc. (TALK) as of May 19.2021, you have until March 8, 2022, to ask the court to appoint you lead plaintiff for the class. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. Contact us to learn more: Aaron Dumas (800) 350-6003 adumas@robbinsllp.com Shareholder Information Form About Robbins LLP: A recognized leader in shareholder rights litigation, the attorneys and staff of Robbins LLP have been dedicated to helping shareholders recover losses, improve corporate governance structures, and hold company executives accountable for their wrongdoing since 2002. To be notified if a class action against Talkspace, Inc. settles or to receive free alerts when corporate executives engage in wrongdoing, sign up for Stock Watch today. Attorney Advertising. Past results do not guarantee a similar outcome. Contacts Aaron Dumas Robbins LLP 5040 Shoreham Place San Diego, CA 92122 adumas@robbinsllp.com (800) 350-6003 www.robbinsllp.com [GN] TALKSPACE INC: Rosen Law Firm Reminds of March 8 Deadline --------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, on Jan. 11 announced the filing of a class action lawsuit on behalf of holders of the common stock of Talkspace, Inc. (NASDAQ: TALK) on May 19, 2021 entitled to vote at the special meeting of shareholders in connection with the merger between Talkspace and Hudson Executive Investment Corporation ("HEIC"). A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than March 8, 2022. SO WHAT: If you purchased Talkspace securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the Talkspace class action, go to http://www.rosenlegal.com/cases-register-2237.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than March 8, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, in an attempt to secure shareholder support for the Merger, on May 28, 2021, defendants issued a materially false and misleading Preliminary Proxy on Schedule 14A (the "Proxy"). The Proxy, which recommended that HEIC shareholders vote in favor of the Merger, misrepresented Talkspace's business, financials, and prospects, by omitting, among other things, that: (1) Talkspace was experiencing significantly increased online advertising costs in its business-to-consumer ("B2C") channel since the start of 2021; (2) Talkspace was experiencing lower conversion rates in its online advertising in its B2C business; (3) Talkspace was experiencing increased customer acquisition costs and more tepid B2C demand than represented to investors; (4) Talkspace was suffering from ballooning customer acquisition costs and worsening growth and gross margin trends; (5) Talkspace had overvalued its accounts receivables from certain of its health plan clients in its business-to-business channel, which amounts required adjustment downward; and (6) as a result of the foregoing, Talkspace's 2021 financial guidance was not achievable and lacked any reasonable basis in fact. The complaint alleges that after the Merger closed the Proxy was revealed to be materially false and misleading, causing the price of Talkspace common stock to substantially decline and Talkspace investors to suffer damages under the Exchange Act. To join the Talkspace class action, go to http://www.rosenlegal.com/cases-register-2237.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. CONTACT: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] TEMPUR SEALY: Faces Myra Suit Over Illegal Background Check ----------------------------------------------------------- JOSHUA MYRA, an individual on behalf of himself and all others similarly situated, Plaintiff v. TEMPUR SEALY INTERNATIONAL, INC., a Delaware corporation, Defendant, Case No. 2:22-cv-00223 (C.D. Cal., January 11, 2022) arises from the acquisition and use of consumer and/or investigative consumer reports by the Defendant to conduct background checks on Plaintiff and other prospective, current, and former employees, in violations of the Fair Credit Reporting Act, the California's Investigative Consumer Reporting Agencies Act, the Consumer Credit Reporting Agencies Act, and the Unfair Competition Law. According to the complaint, the Defendant routinely obtains and uses information from background reports in connection with their hiring processes without complying with state and federal mandates for doing so. The Defendant has allegedly violated the requirements under these statutes by failing to provide proper "pre-authorization" disclosures. The Plaintiff has applied for a job with Defendant in approximately December of 2020. Tempur Sealy International, Inc. is an American manufacturer of mattresses and bedding products.[BN] The Plaintiff is represented by: George S. Azadian, Esq. Ani Azadian, Esq. AZADIAN LAW GROUP, PC 707 Foothill Blvd., Suite 200 La Canada Flintridge, CA 91011 Telephone: (626) 449-4944 Facsimile: (626) 628-1722 E-mail: george@azadianlawgroup.com TENCENT MUSIC: Court Allows Gordon to File 2nd Amended Complaint ---------------------------------------------------------------- Magistrate Judge Taryn A. Merkl of the U.S. District Court for the Eastern District of New York grants the Plaintiffs' motion for leave to file a second amended complaint in the lawsuit entitled THERESA GORDON, Plaintiff v. TENCENT MUSIC ENTERTAINMENT GROUP, et al., Defendants, Case No. 19-CV-5465 (LDH) (TAM) (E.D.N.Y.). On Sept. 26, 2019, Plaintiff Theresa Gordon initiated the putative class action pursuant to the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), 15 U.S.C. Section 78u-4, et seq., on behalf of investors, who purchased publicly traded securities of Tencent Music Entertainment Group from Dec. 12, 2018, to Aug. 26, 2019 (the "Class Period"). Factual Background and Procedural History The case commenced on Sept. 26, 2019. Thereafter, on Dec. 3, 2019, the Honorable Steven M. Gold granted Euclidean Investment LLC and Andrey Zaborsky's unopposed motion to serve as Lead Plaintiffs and to appoint The Rosen Law Firm, P.A., as Lead Counsel. The "Plaintiffs" refers to both named Plaintiff Theresa Gordon and Lead Plaintiffs Euclidean Investment LLC and Andrey Zaborsky. The Plaintiffs then filed an amended complaint on Feb. 2, 2020, naming 25 individual and corporate Defendants, and alleging violations of Sections 11 and 15 of the Securities Act of 1933, as well as Sections 10(b) and 20(a) of the Exchange Act of 1934, and Rule 10b-5, 17 C.F.R. Section 240.10b-5. I. Plaintiffs' First Amended Complaint ("FAC") In the first amended complaint, the Plaintiffs alleged that Defendant Tencent, the largest online music entertainment platform in China, violated the Securities Act and the Exchange Act by failing to properly disclose in relevant filings with the U.S. Securities and Exchange Commission ("SEC") that it was the subject of an ongoing anti-monopoly investigation being conducted by the Chinese government. Specifically, the Plaintiffs claimed that the Defendants' Registration Statement related to Tencent's Dec. 12, 2018 initial public offering ("IPO"), as well as their Annual Report for 2018, failed to disclose the consequential nature of--and fallout from--a September 2017 meeting with China's National Copyright Administration. According to the Plaintiffs, these statements were unlawful because the Defendants misleadingly conveyed: (1) that the Chinese government merely encouraged it not to enter into exclusive licensing arrangements, when in truth, the Chinese government warned Tencent Music that it will avoid acquiring exclusive music copyright; and (2) that there was no present or imminent threat that the Chinese government would impose regulatory penalties on Tencent, when the Defendants knew that Tencent faced investigation and potentially significant fines for violations of China's anti-monopoly laws. II. Defendants' Motion to Dismiss On May 15, 2020, several corporate Defendants, including Tencent, filed a joint motion to dismiss the first amended complaint, which each of the other Defendants later joined. On March 31, 2021, Judge DeArcy Hall granted the Defendants' motion to dismiss the Plaintiffs' claims under Section 11 of the Securities Act and Section 10(b) of the Exchange Act. Judge DeArcy Hall concluded that the Plaintiffs' Securities Act claim failed, in part, because it did not sufficiently allege that the Registration Statement's description of Tencent's September 2017 meeting with the National Copyright Administration was a "misstatement." The Court also found, among other things, that the Plaintiffs did not plausibly plead that any government investigation was ongoing prior to January 2019--one month after the Registration Statement was filed, and that even if the Court were to construe the Plaintiffs' allegations as supporting the claim that a government investigation related to Tencent's licensing practices was ongoing starting in late 2017, which the Defendants were aware of, there is no actionable omission related to any such investigation. In other words, the District Court found that the Plaintiffs failed to state a claim that the relevant disclosures in Tencent's Registration Statement were misleading. As part of the order dismissing the Plaintiffs' primary claims of materially false and misleading statements under Section 11 and Section 10(b), the Court ordered the Plaintiffs to show cause as to why the remaining claims should not be dismissed for failure to state a claim for a primary Securities Act or Exchange Act violation. In response, on April 13, 2021, the Plaintiffs requested a pre-motion conference to seek leave to file a second amended complaint to address the deficiencies enunciated in Judge DeArcy Hall's Order and to provide additional detailed factual allegations and more clarity relevant to falsity and materiality as to both the Sections 11 and 10(b) claims. Judge DeArcy Hall denied the Plaintiffs' motion for a pre-motion conference and directed the parties to brief the motion to amend. III. Plaintiffs' Motion for Leave to Amend On April 29, 2021, the Plaintiffs filed the instant motion for leave to amend and accompanying documents. In their motion, the Plaintiffs request leave to make several amendments to the first amended complaint regarding the context and timeline of the Chinese government's actions in response to the Defendants' alleged anti-competitive practices. The Plaintiffs' motion also seeks to include new allegations concerning the materiality of the Chinese government's actions and the misleading aspects of what the Defendants stated--and omitted--in Tencent's Registration Statement and subsequent 2018 Annual Report. The Defendants object to the Plaintiffs' motion on the grounds that the proposed amendments are simply semantic changes that repackage the same core allegations as the last complaint based on substantially the same underlying sources, and are, therefore, futile because they would not survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Based on the Plaintiffs' proposed amendments, the Court finds that the revised allegations regarding the September 2017 meeting are sufficient at this stage to give rise to a reasonable inference that the Defendants' Registration Statement was misleading. It finds that a reasonable investor could view the amended allegations regarding the September 2017 meeting as substantially altering the total mix of information made available with respect to the Defendants' Registration Statement. Because the Defendants have not shown that the proposed amendments would be futile as to the Plaintiffs' Section 11 Securities Act claim concerning material misstatements and omissions in the Registration Statement related to the September 2017 meeting, and given the preference for liberal grant of an opportunity to replead after dismissal of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court concludes that the Defendants have not demonstrated futility of the proposed amendment. Accordingly, the Plaintiffs' request for leave to file a second amended complaint is granted without prejudice to the Defendants' ability to challenge the sufficiency of the Plaintiffs' amended claims more granularly in the context of a motion to dismiss or on summary judgment. For their Section 10(b) claim, the Court finds that the Plaintiffs' proposed amended complaint alleges facts as to both the September 2017 meeting and the Chinese government's subsequent antitrust investigation into Tencent, which, taken to be true, could support a claim that the Defendants' 2018 Annual Report, filed in April 2019, contained materially misleading statements and omissions. Given the Plaintiffs' revised allegations pertaining to the "order" and "discipline" handed down to Tencent at the September 2017 meeting, the alleged investigative action that took place in 2018, and the allegations that an official investigation had commenced as of January 2019, the Court finds that the Defendants have not shown the Plaintiffs' claim of material misstatements and omissions in Tencent's 2018 Annual Report to be lacking facially plausibility, citing Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co., 19 F.4th 145, 151 (2d Cir. Nov. 24, 2021). Accordingly, the Court finds that the Defendants have similarly failed to demonstrate futility here, and given this circuit's strong preference for resolving disputes on the merits, the Plaintiffs should be allowed to proceed with amendment. The Court also finds no evidence of undue delay, bad faith, dilatory tactics, or undue prejudice. Therefore, the Court concludes that the Defendants have not met their burden of establishing that leave to amend would be prejudicial or futile. The Plaintiffs' motion for leave to amend is granted. Conclusion For these reasons, the Court grants the Plaintiffs' motion for leave to amend. The Plaintiffs are respectfully directed to file their second amended complaint within fourteen days of this Memorandum and Order. A full-text copy of the Court's Memorandum & Order dated Dec. 27, 2021, is available at https://tinyurl.com/25dywh8j from Leagle.com. TENNESSEE: Appeals Prelim. Injunction Ruling in R.K. ADA Suit ------------------------------------------------------------- Bill Lee, in his official capacity as Governor of Tennessee, et al., filed an appeal from a court ruling entered in the lawsuit styled R.K., a minor, by and through her mother and next friend, J.K; W. S., a minor, by and through her parent and next friend, M.S.; S. B., a minor, by and through his parents and next friends, M.B and L.H.; M. S., a minor, by and through her parent and next friend, K.P.; T. W., a minor, by and through her parent and next friend, M.W.; M. K., a minor, by and through her parent and next friend, S.K.; E. W., a minor, by and through his parent and next friend, J.W.; J. M., a minor, by and through her parent and next friend, K.M. and on behalf of those similarly situated v. Governor Bill Lee, in his official capacity as Governor of Tennessee; Penny Schwinn, in her official capacity as Commissioner of the Tennessee Department of Education, Case No. 3:21-cv-00853, in the U.S. District Court for the Middle District of Tennessee at Nashville. The Plaintiffs, school-age children with disabilities that render them medically vulnerable to COVID-19, by and through their parents and next friends, bring this action for declaratory and injunctive relief on behalf of themselves and a class of similarly situated children with disabilities who are at severe risk of illness and injury from contracting COVID-19 and its variants due to their disabilities. Specifically, the Plaintiffs claim that Defendants violated their rights under the Fourteenth Amendment, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. Defendant Bill Lee is the Governor of the State of Tennessee and as such is the Chief Executive for the state, responsible for ensuring the enforcement of the state's educational statutes. Defendant Lee signed the education legislation at issue herein. Defendant Lee is sued in his official capacity as the Governor of the State of Tennessee. This case involves legislation passed by the Tennessee General Assembly in special session on October 30, 2021 signed into law by Defendant Lee on November 12, 2021. This legislation (the "Mask Mandate Ban") has created inconsistent and chaotic approaches among the school districts in Tennessee, while subjecting all students to loss of state or federal funding. The Mask Mandate Ban stands as an obstacle to the accomplishment of the full purpose and objective of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act and must be enjoined, says the suit. On November 12, 2021, the Plaintiffs filed a motion for preliminary injunction. On December 10, 2021, Chief Judge Waverly D. Crenshaw, Jr. entered an order granting in part Plaintiffs' motion for temporary restraining order and preliminary injunction. The Defendants now seek a review of this order. The appellate case is captioned as Bill Lee, et al. v. R. K., et al., Case No. 22-5004, in the United States Court of Appeals for the Sixth Circuit, filed on January 3, 2022.[BN] Defendants-Appellants BILL LEE, in his official capacity as Governor of Tennessee; and PENNY SCHWINN, in her official capacity as Commissioner of the Tennessee Department of Education, are represented by: Reed Neal Smith, Esq. TENNESSEE OFFICE OF THE ATTORNEY GENERAL P.O. Box 20207 Nashville, TN 37202-0207 Telephone: (615) 741-9593 E-mail: reed.smith@ag.tn.gov Plaintiffs-Appellees R.K., a minor, by and through her mother and next friend, J.K; W. S., a minor, by and through her parent and next friend, M.S.; S. B., a minor, by and through his parents and next friends, M.B and L.H.; M. S., a minor, by and through her parent and next friend, K.P.; T. W., a minor, by and through her parent and next friend, M.W.; M. K., a minor, by and through her parent and next friend, S.K.; E. W., a minor, by and through his parent and next friend, J.W.; J. M., a minor, by and through her parent and next friend, K.M. and on behalf of those similarly situated, are represented by: Bryce W. Ashby, Esq. DONATI LAW FIRM LLP 1545 Union Avenue Memphis, TN 38104 Telephone: (901) 278-1004 E-mail: bryce@donatilaw.com - and - Justin Scott Gilbert, Esq. GILBERT LAW 100 W. Martin Luther King Boulevard, Suite 501 Chattanooga, TN 37402 Telephone: (423) 499-3044 E-mail: justin@schoolandworklaw.com - and - Jessica Farriis Salonus, Esq. SALONUS FIRM 139 Stonebridge Boulevard Jackson, TN 38305 Telephone: (731) 300-0970 E-mail: jsalonus@salonusfirm.com UNITED BEHAVIORAL: $20.85M in Attys.' Fees & Costs Awarded in Wit ----------------------------------------------------------------- In the case, DAVID WIT, et al., Plaintiffs v. UNITED BEHAVIORAL HEALTH, Defendant, Case No. 14-cv-02346-JCS (N.D. Cal.), Chief Magistrate Judge Joseph C. Spero of the U.S. District Court for the Northern District of California granted in part and denied in part the Plaintiffs' Petition for Attorneys' Fees and Costs. Introduction On Feb. 1, 2021, having found Defendant United Behavioral Health ("UBH") liable for breaches of fiduciary duty and violations of the class members' health insurance plans under ERISA, 29 U.S.C. Sections 1132(a)(1)(B) and (a)(3)(A), the Court entered judgment in the case. Presently before the Court is the Plaintiffs' Motion. Background Zuckerman Spaeder LLP, Psych-Appeal, Inc., and The Maul Firm (together, "Class Counsel") seek an award of attorneys' fees incurred in the case in the following amounts: $25,197,592.85 (Zuckerman Spaeder), $1,796,580 (Psych-Appeal), $266,591.25 (The Maul Firm), and $514,130.64 (contract attorneys). These amounts reflect a requested 1.5 multiplier on fees for work on the merits (but not on the instant motion) and are based on the following underlying lodestar amounts: $17,006,111.83 (Zuckerman Spaeder), $1,197,720 (Psych-Appeal), $177,727.50 (The Maul Firm) and $342,753.76 (contract attorneys). The requested lodestar amounts cover the period from January 2014 through Oct. 31, 2020, and are based on current rather than historical rates, which the Plaintiffs contend should be used in order to compensate them for the delay in payment resulting from years of litigation prior to entry of judgment. In addition, the Plaintiffs seek an award of costs in the amount of $1,242,399.95 incurred by Zuckerman Spaeder and $2,683.59 in costs incurred by the Maul Firm. Analysis A. Whether Plaintiffs Should be Awarded Fees and Costs Incurred in the Action Where the party has achieved some success but did not "prevail completely," the Court considers five factors, the "Hummell factors," in deciding whether to award fees and costs, citing Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1121 (9th Cir. 2010) (quoting Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980)). The Hummell factors are as follows: (1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties' positions. The Court may award fees and costs without considering the Hummell factors, however, if the plaintiffs "prevailed completely," "received the entire relief sought, and resolved a significant legal question." The Plaintiffs contend they prevailed completely in the case and therefore, that the Court should award fees and costs without reaching the Hummell factors. They further assert, however, that the Hummell factors also support their request for attorneys' fees and costs. UBH, on the other hand, contends the Plaintiffs obtained only a procedural victory because the Court remanded for reprocessing instead of awarding benefits to the class members. Even if the Plaintiffs satisfied the threshold established in Hardt, they argue, the Hummell factors do not support an award of fees and costs. Judge Spero rejects UBH's argument that the Plaintiffs obtained a purely procedural victory and concludes that the Hummell factors support an award of attorneys' fees and costs. Therefore, he need not decide whether the Plaintiffs prevailed completely in the case. Judge Spero finds that the Plaintiffs have demonstrated "some success on the merits" and that the Hummell factors support an award of attorneys' fees and costs. Therefore, he finds it appropriate to exercise its discretion to award the Plaintiffs reasonable attorneys' fees and costs incurred in the action. B. Lodestar Amount The Plaintiffs request that the Court calculate the amount of the lodestar using 2020 hourly rates, "or, for timekeepers who are not currently working on the matter, their rates in the year in which they last billed 10 or more hours on the matter," in order to compensate them for the nearly six-year delay in receiving compensation. Judge Spero holds that the Plaintiffs' lodestar is $18,723,075.59; that is, the lodestar requested by the Plaintiffs of $18,724,313.09 less the reduction of $1,237.50. Among other things, he finds that (i) the Plaintiffs' request that the lodestar be calculated using current rates to account for the nearly six-year delay in compensation is reasonable; (ii) Ms. Reynolds' time for briefing staff members of the United States Senate Finance Committee about the case is not compensable and excludes $1,237.50 from the Plaintiffs' lodestar for this time; and (iii) the attorney rates sought by Plaintiffs are reasonable and in line with those charged by firms in the Bay Area conducting complex litigation. C. Litigation Expenses and Costs In the Motion, the Plaintiffs sought $1,588,123.19 in litigation costs. This figure reflects $1,585,439.60 in Zuckerman Spaeder's litigation costs and $2,683.59 in litigation costs incurred by The Maul Firm. In a later-filed Notice of Correction to the Plaintiffs' Fee Petition, the Plaintiffs informed the Court that they had inadvertently double-counted the cost of contract attorneys, including those costs in both Zuckerman Spaeder's lodestar and as a litigation expense; Plaintiffs therefore corrected the amount of requested costs by deducting out the amount Zuckerman Spaeder paid contract attorneys ($342,753.76), resulting in requested costs of $1,242,685.84. In support of their Reply, the Plaintiffs provided a revised exhibit listing their requested costs. They withdrew certain costs, but again inadvertently included the cost of contract attorneys in their list of costs. With the cost of contract attorneys deducted from their revised costs, the Plaintiffs now seek $1,242,399.95 in litigation expenses. Taking into account the expenses that were withdrawn in connection with their Reply brief, the Plaintiffs now seek the following costs: 1) $8,855 for court fees; 2) $1,673.07 for conference calls; 3) $111,943.75 for computerized research; 4) $15,194.57 for service of process/investigation; 5) $51,391.69 for class administration; 6) $2,074 for computer rental equipment; 7) $232,381.01 for electronic discovery; 8) $194,049.89 for transcripts; 9) $75,537.23 for trial presentation technology; 10) $92,246.55 for trial summary exhibits; 11) $35,976.72 for PDF hyperlinking services; 12) $357,287.25 for meals and travel expenses; 13) $63,575.28 for photocopying, delivery, and related expenses; 14) $213.94 for webhosting expenses. In its Opposition, UBH requested that the Court disallow all costs, aside from the amounts requested for webhosting and class administration, on the basis that Plaintiffs did not provide the underlying invoices to substantiate their claimed costs. It also challenged the Plaintiffs' costs in the following specific categories: Computer Rental Equipment, Court Costs, Legal Research, PDF Hyperlinking, Photocopy and Delivery services, Service of Process and Investigation Expenses, Travel and Meals, and Trial Summary Exhibits. Judge Spero holds that the Plaintiffs have adequately substantiated their costs by providing detailed charts listing their costs, as well as supporting invoices. He awards $1,228,046.27 for Zuckerman Spaeder's costs and $2,683.59 for the Maul Firm's costs, that is, a total of $1,230,729.86 in costs. Among other things, Judge Spero finds that (i) the amount requested for computer rental expenses is reasonable and therefore declines to disallow these costs; (ii) the pro hac vice fees and expenses related to obtaining certificates in good standing requested by Plaintiffs were a reasonable and necessary part of the litigation and are of the type of expenses that are customarily billed to a fee-paying client; (iii) the Plaintiffs have shown that the overall cost of the legal research on Westlaw, LexisNexis, and PACER was reasonable in light of the time spent conducting online legal research; (iv) the PDF hyperlinking costs are recoverable as litigation expenses as they are the type of expenses that are typically charged to clients; (v) the costs for photocopying and delivering of documents and exhibits are recoverable as a non-taxable expense as they are routinely billed separately; (vi) the Plaintiffs does not provide sufficient detail to allow the Court to evaluate the reasonableness of the two investigator charges and reduces the Plaintiffs' requested costs by $10,975; (vii) he must reduce the travel and meal expenses by $3,378.68 for the costs of the first class flights and award the remainder in full; and (viii) the costs for the services of Josephine Duh and the Brattle Group resulting in Trial Exhibits 892-895 are reasonable. D. Whether Award Should be Subject to a Multiplier The Plaintiffs ask the Court to award a 1.5 multiplier on their attorneys' fees, arguing that this is one of the rare and exceptional cases where the lodestar amount is not sufficient to attract competent counsel because lawyers capable of conducting complex nationwide class actions generally take cases seeking money recovery and not injunctive and declaratory relief. UBH argues that applying a multiplier in the case would be inconsistent with Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 555 (2010) to the extent the Plaintiffs rely on the novelty and complexity of the case to justify the use of a multiplier, as the Court in Perdue held that these factors are subsumed in the lodestar, and thus that enhancing the fee award on this ground would "serve only to enrich attorneys." Judge Spero applies a 1.05 multiplier to the lodestar of $18,723,075.59, adjusted to remove the fees incurred in connection with the fee petition (for which the Plaintiffs do not seek a multiplier) in the amount of $623,149.80, giving rise to an enhancement of $904,996.29. He says, the amount the Plaintiffs seek appears to be disproportionate to their costs. In particular, the 1.5 multiplier gives rise to an enhancement of more than $9 million, that is, more than seven times their underlying costs. Judge Spero is not persuaded that such a large enhancement is necessary to ensure a fair and reasonable recovery. Instead, he concludes that a 1.05 multiplier is adequate to take into account the extended period of time the Plaintiffs were required to shoulder the significant costs of litigating the action. Conclusion In light of the foregoing, Judge Spero granted in part and denied in part the Plaintiffs' Motion. He awarded $19,628,071.88 in fees (that is, the lodestar amount of $18,723,075.59 plus an enhancement based on the 1.05 multiplier of $904,996.29) and $1,230,729.86 in costs. A full-text copy of the Court's Jan. 5, 2022 Order is available at https://tinyurl.com/2p8du8af from Leagle.com. UNIVERSITY OF NOTRE DAME: Named Defendant in Conspiracy Suit ------------------------------------------------------------ WNDU reports that the University of Notre Dame is being named in a lawsuit against 16 elite schools across the U.S. It's a class action suit that accuses the school of being part of an alleged conspiracy that raised prices for financial aid recipients. The suit says that resulted in overcharging more than 170,000 students for hundreds of millions of dollars. Plaintiffs are asking for a class action jury trial. It was filed on Jan. 9 in Federal court. The lawsuit names Brown University, California Institute of Technology, University of Chicago, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, Massachusetts Institute of Technology, Northwestern University, University of Notre Dame, University of Pennsylvania, Rice University, Vanderbilt University and Yale University as defendants. [GN] VICTORIA'S SECRET: Appeals Remand Ruling in Lizama Fraud Suit ------------------------------------------------------------- Victoria's Secret Stores, LLC, et al., filed an appeal from a court ruling entered in the lawsuit styled ABRAHAM LIZAMA, on behalf of himself and all others similarly situated v. VICTORIA'S SECRET STORES, LLC, and VICTORIA'S SECRET DIRECT, LLC, Case No. 4:21-cv-00763-HEA, in the U.S. District Court for the Eastern District of Missouri - St. Louis. The lawsuit was removed from the Circuit Court of St. Louis County, Missouri, to the U.S. District Court for the Eastern District of Missouri on June 24, 2021. The lawsuit is a putative class action filed by the Plaintiff in the Circuit Court of St. Louis County, Missouri against the Defendants on behalf of himself and all persons and entities who purchased a product from Victoria's Secret through remote sales channels, including its internet website, that was delivered from an out-of-state facility to a Missouri delivery address and who were allegedly charged tax monies at a higher tax rate than the correct applicable use tax rate. According to the Petition, Missouri law requires retailers to charge sales or use tax on the sales of their products to Missouri purchasers. As reported in the Class Action Reporter on January 11, 2022, Judge Henry Edward Autrey of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted the Plaintiff's Motion to Remand. Judge Autrey concludes that the amount of compensatory damages in controversy for purposes of determining CAFA jurisdiction at the time the case was removed from state court totals $2.5 million. Adding a 33% attorneys' fee award to this amount brings the total to $3.325 million. There are no punitive damages or injunctive relief values to consider. Accordingly, the total amount in controversy reasonably expected at the time of removal was well below the $5 million threshold required for CAFA jurisdiction. Based on the foregoing, the Defendants have not met their burden of showing that federal CAFA jurisdiction exists because they have failed to demonstrate by a preponderance of the evidence that the amount in controversy in the action met the $5 million threshold required for such jurisdiction at the time of removal. The matter will be remanded for lack of subject-matter jurisdiction. Accordingly, Judge Autrey granted the Plaintiff's Motion to Remand. The action is remanded to the Circuit Court of St. Louis County, Missouri. The Defendants now seek a review of the order entered by Judge Autrey. The appellate case is captioned as Victoria's Secret Stores, LLC, et al. v. Abraham Lizama, Case No. 22-8001, in the United States Court of Appeals for the Eighth Circuit, January 7, 2022.[BN] Defendants-Petitioners Victoria's Secret Stores, LLC and Victoria's Secret Direct, LLC are represented by: Jonathan Barton Potts, Esq. Colin P. Snider, Esq. BRYAN & CAVE 3600 One Metropolitan Square 211 N. Broadway Saint Louis, MO 63102-2186 Telephone: (314) 259-2000 E-mail: jonathan.potts@bclplaw.com colin.snider@bclplaw.com Plaintiff-Respondent Abraham Lizama, on behalf of himself and all others similarly situated, is represented by: Adam M. Goffstein, Esq. LAW OFFICE OF A.M. GOFFSTEIN 7777 Bonhomme Avenue, Suite 1910 Saint Louis, MO 63105-0000 Telephone: (314) 725-5151 E-mail: adam@goffsteinlaw.com - and - Daniel J. Orlowsky, Esq. ORLOWSKY LAW LLC 7777 Bonhomme Avenue, Suite 1910 Saint Louis, MO 63105-000 Telephone: (314) 725-5151 E-mail: dan@orlowskylaw.com WINKING LIZARD: Cunningham Sues Over Unpaid Wages for Servers ------------------------------------------------------------- CAYLEE CUNNINGHAM, individually and on behalf of all others similarly situated, Plaintiff v. WINKING LIZARD, INC., Defendant, Case No. 1:22-cv-00038-JPC (N.D. Ohio, January 7, 2022) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated servers the applicable minimum wage for all of the hours worked and failure to keep accurate records in violation of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The Plaintiff worked as a server at the Defendant's restaurant in Ohio from June 2018 until August 2020. Winking Lizard, Inc. is a restaurant operator in Ohio. [BN] The Plaintiff is represented by: David J. Steiner, Esq. Anthony J. Lazzaro, Esq. 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