/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220224.mbx C L A S S A C T I O N R E P O R T E R Thursday, February 24, 2022, Vol. 24, No. 34 Headlines A&W CONCENTRATE: Seeks to Decertify Class in Sharpe Suit A1 ABSOLUTE: Telephone Status Conference Set for March 3 in Davis ACE AMERICAN: Joint Bid to Set Class Certification Briefing Filed AGA SERVICE: Eighth Cir. Affirms Dismissal of Bauer Insurance Suit ALIBABA GROUP: Salem Gharsalli Appointed as Lead Plaintiff AMAZON.COM: Order Setting Class Cert. Dates Entered in Street AMERICAN AIRLINES: Ismail Labor Code Suit Goes to C.D. California AMERICAN GENERAL: LSIMC Seeks to Certify Class of Policy Owners ANDERSON COUNTY, TN: Court Nixes Venue Motion in Accord Class Suit APPLE INC: Faces Class Action Over Alleged "Jelly Scroll" Defect APPLE INC: Faces Suit Over CEO's iPhone Demand Comments in China AT&T INC: Time Extension for Class Cert. Deadlines Sought in Scott BARNSTORMERS BASKETBALL: Seeks to Amend Class Notice Order BELLRING BRANDS: Faces Consumer Class Actions in Various Courts BEND MEMORIAL: Discovery & PTO Dates Extended in Fulkerson Suit BIOGEN INC: Bragar Eagel & Squire Reminds of April 8 Deadline C.I. LOBSTER: Pagan Seeks Conditional Status of Collective Action CASINO QUEEN: Scheduling and Discovery Order Entered in Hensiek CHURCHILL CORPORATE: Order on General Pretrial Management Entered CITIZENS BANK: Court Narrows Claims in Chirchir's 1st Amended Suit CLARIVATE PLC: Kessler Topaz Reminds of March 25 Deadline COASTAL DRILLING: Ford Sues Over Unpaid Overtime for Pipe Fitters COMPREHENSIVE HEALTHCARE: Class Cert. Briefing Schedule Revised COVANTA PLYMOUTH: Lloyd Bid for Class Certification Nixed CRST INT'L: Cervantes Seeks Class Cert. Briefing Deadline Extension CVS HEALTH: Unredacted Version of Renewed Class Cert Bid Sealed DELOITTE & TOUCHE: Liable to Stockholders' Losses, Formby Claims DENTAL EQUITIES: Review of Class Certification in Scoma Suit Nixed DIGNITY HEALTH: Class Certification Hearing Continued to March 8 DNC PARKS: Court Narrows Claims in Perez Class Suit EAGLE BANCORP: Class Action Settlement OK'd in Stein Class Suit EHANG HOLDINGS: Sergiu Rata Appointed as Lead Plaintiff FAMILY SOLUTIONS: Can't File Interlocutory Appeal in Stephenson FLEX LTD: Dismissal of California Securities Class Suit Upheld FOUNDATION ENERGY: May 27 Extension for Class Cert Filing Sought FOUR SEASONS: Faces Gonzalez Wage-and-Hour Suit in E.D.N.Y. GOOGLE LLC: Stipulation Extending Deadline to File Reply Filed GT MARKETING: Loses Bid to Dismiss Pastore Suit HALSTED FINANCIAL: Wins Bid to Compel Arbitration in Shaffer Suit HARVARD UNIVERSITY: Graduate Student Workers File Title IX Suit INTERNATIONAL BUSINESS: Age Discrimination Class Action Pending KPMG LLP: Order Regarding General Pretrial Management Entered KUCOIN: S.D. New York Certifies TOMO Token Class in Williams Suit LANNETT COMPANY: Securities Suit Shelved Pending Appeal LIBERTY MUTUAL: Parties' Counsel to Confer on Penegar Case Status LIFE CARE: Atkinson Wage-and-Hour Suit Removed to W.D. Washington LOS ANGELES, CA: Concerns Raised Over DWP Class Action Settlement MARQUE OF BRANDS: Abreu Files ADA Suit in S.D. New York MARSH & MCLENNAN: Bohank Appeals Dismissal of Data Breach Suit MATCH GROUP: Won't Charge Older Users More for Tinder+ Amid Lawsuit MAXIMUS INC: Order on Class Cert. Deadline Entered in Brickman MAYFLOWER TRANSIT: Class Settlement in Greenly Gets Initial Nod MCKESSON INC: Pending Bid to Stay Dismissed as Moot in Nathan MCMC LLC: Mauthe Seeks to Extend Reply Brief Date to March 14 MDL 2966: Two Expert Witnesses in Xyrem Antitrust Suit Disqualified MDL 2968: Final Judgment Entered in Covid-19 Travel Insurance Suit MEDICAL LIABILITY: Order Dismissing Castagna Class Suit Affirmed MEDNAX SERVICES: Perez FCRA Suit Removed to S.D. Florida MONMOUTH REAL ESTATE: Faces Fiduciary Breach Charges Over Merger MYOSTORM LLC: Paguada Files ADA Suit in S.D. New York NATIONAL FOOTBALL: Biden Comments on Hiring Practices Amid Lawsuit NATIONAL FOOTBALL: Flores to Amend Class Action Over Racism NESTLE HEALTHCARE: Weekes Files ADA Suit in S.D. New York NEW YORK, NY: Mayor Issues Emergency Executive Order 35 NMCI MEDICAL: Kulik Suit Seeks Conditional Class Certification NORFOLK SOUTHERN: Various Antitrust Cases Consolidated in DC NORTEK SECURITY: Landy Files TCPA Suit in S.D. New York NORTHSTAR LOCATION: Sao Files TCPA Suit in M.D. North Carolina OTIS WORLD CORP: Faces Labor Complaint in Geraud Action OUTDOOR GEAR EXCHANGE: Weekes Files ADA Suit in S.D. New York PEOPLECONNECT INC: Camacho Files Suit in S.D. California PERDUE FOODS: Paguada Files ADA Suit in S.D. New York PHH MORTGAGE: S.D. Florida Narrows Claims in Salter Class Suit PHILLIPS ENTERTAINMENT: Weekes Files ADA Suit in S.D. New York PORTFOLIO RECOVERY: Miller FDCPA Suit Removed to D. New Jersey PROBUILD COMPANY: Gonzalez FCRA Suit Removed to C.D. California PROFESSIONAL BUSINESS: Judge Recommends Dismissal of Class Action RAGAN & RAGAN: Lloyd Files FDCPA Suit in N.D. Georgia REMRISE INC: Scheduling Order Entered in Tavarez Class Suit RESURGENT CAPITAL: Bid for More Time to Complete Discovery OK'd RETAILERX INC: Weekes Files ADA Suit in S.D. New York REWIND COMPANY: Fischler Files ADA Suit in E.D. New York RITE AID: Lemus Files Suit in C.D. California ROBBINS PROPERTY: Perez Suit Removed to S.D. Florida SEA MAR COMMUNITY HEALTH: Barnes Suit Removed to W.D. Washington SEA MAR COMMUNITY HEALTH: Hall Suit Removed to W.D. Washington SEA MAR COMMUNITY HEALTH: Maynor Suit Removed to W.D. Washington SEA MAR COMMUNITY HEALTH: Summers Suit Removed to W.D. Washington SEA MAR COMMUNITY HEALTH: Waliany Suit Removed to W.D. Washington SEAWORLD PARKS: Jones Labor Suit Removed to S.D. California SEND A CAKE: Weekes Files ADA Suit in S.D. New York SENIOR LIFE: Bid to Dismiss Miholich Action Tossed SERVICE KING: Moniz Bid for Class Cert Tossed w/o Prejudice SHATTUCK LABS: Bragar Eagel & Squire Reminds of April 1 Deadline SIGNODE INDUSTRIAL: Ruling to Produce Docs in Stone Suit Affirmed SMITH & WESSON: Stallworth Suit Removed to N.D. Illinois SOCLEAN INC: Borland Suit Transferred to W.D. Pennsylvania SOCLEAN INC: Seicol Suit Transferred to W.D. Pennsylvania SOLOMID CORP: Any Bid for Class Cert. Must be Filed by April 29 STATE STREET: Sanction of Lieff in Arkansas Teacher Suit Upheld SYMANTEC CORP: Settlement in SEB Suit Gets Final Nod T-MOBILE USA: Achermann Suit Removed to N.D. California TAL EDUCATION: Kessler Topaz Reminds of April 5 Deadline TEP ROCKY: Class Certification Bid Due April 8 in Jolley Suit TESLA INC: Faces DFEH Class Suit Over Alleged Race Discrimination TOMORROW ENERGY: Shannon Sues Over Unpaid Minimum, Overtime Wages TRANSWORLD SYSTEMS: Hoffman Class Cert Bid Renoted to April 15 TRIVING BRANDS: Wilson Suit Transferred to D. Connecticut TYSON FOODS: Court Narrows Claims in Price-Rigging Suit TYSON FOODS: Faces Suits Over Antitrust Laws Violation TYSON FOODS: Settlement Deal in Chicken Grower Suit Gets Initial OK VENUS OVER MANHATTAN: Miller Files ADA Suit in S.D. New York VERIZON CONNECT: Must Provide Responses to Interrogatory in Hiram VIRGINIA: Unemployment Insurance Reforms Advance Following Suit WAL-MART ASSOCIATES: Bid to Dismiss Nelson Suit Granted in Part WASTE CONNECTIONS: Scheduling Order & Pretrial Dates Amended WATERFIELD DESIGNS: Weekes Files ADA Suit in S.D. New York WENTZVILLE R-IV: Weekes Files Suit in E.D. Missouri WILSON LOGISTICS: Ruff Wage-and-Hour Suit Goes to N.D. California WORK WARM: Paguada Files ADA Suit in S.D. New York WRIGHT STUFF: Hanyzkiewicz Files ADA Suit in E.D. New York [*] Class Action Lead Plaintiff Warns About Online Fraudsters ********* A&W CONCENTRATE: Seeks to Decertify Class in Sharpe Suit -------------------------------------------------------- In the class action lawsuit captioned as Lashawn Sharpe and Jim Castoro, individually and on behalf of all others similarly situated, v. A&W Concentrate Company and Keurig Dr Pepper Inc., Case No. 1:19-cv-00768-BMC (E.D.N.Y.), the Defendant asks the Court to enter an order pursuant to Fed. R. Civ. P. 23, decertifying the class of: "All persons who purchased either A&W Root Beer or A&W Cream Soda in New York between February 7, 2016, and March 1, 2021." The Class excludes the judge or magistrate assigned to this case; Defendants; any entity in which Defendants have a controlling interest; Defendants’ officers, directors, legal representatives, successors, and assigns; and persons who purchased A&W Root Beer or A&W Cream Soda for the purpose of resale. A&W manufactures and sells alcoholic beverages. Keurig Dr Pepper produces and distributes hot and cold beverages. A copy of the Defendants' motion dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3rW55O4 at no extra charge.[CC] The Defendants are represented by: Creighton R. Magid, Esq. Elizabeth Rozon Baksh, Esq. DORSEY & WHITNEY LLP 1401 New York Avenue, N.W., Suite 900 Washington, D.C. 20005 Telephone: (202) 442-3555 Facsimile: (202) 442-3199 E-mail: magid.chip@dorsey.com baksh.elizabeth@dorsey.com A1 ABSOLUTE: Telephone Status Conference Set for March 3 in Davis ----------------------------------------------------------------- In the class action lawsuit captioned as LAVELLE DAVIS on behalf of herself and all those similarly situated, v. A1 ABSOLUTE BEST CARE, L.L.C., ET AL., Case No. 2:21-cv-00761-JCZ-DMD (E.D. La.), the Hon. Judge Jay C. Zainey entered an order setting telephone status conference for Thursday, March 3, 2022, at 11:00 a.m. The Court is aware that the deadline to file a motion for class certification is February 28, 2022. However, conflicts in the Court's schedule necessitates a March 3, 2022, status conference date. Therefore, out of an abundance of caution, the deadline to file a motion for class certification is stayed pending the telephone status conference with the Court. A1 Absolute is a hospital & health care company. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3rTRDKE at no extra charge.[CC] ACE AMERICAN: Joint Bid to Set Class Certification Briefing Filed ----------------------------------------------------------------- In the class action lawsuit captioned as MSP RECOVERY CLAIMS, SERIES LLC, v. ACE AMERICAN INSURANCE COMPANY, Case No. 1:17-cv-23749-PAS (S.D. Cal.), the Parties jointly move the Court to establish a schedule for class certification briefing and class certification expert disclosures and state as follows: 1. Pursuant to the Order Following Second Discovery Plan Hearing and Amended Class Discovery Schedule (the "Order"), the Plaintiff's motion for class certification is due to be filed by February 25, 2022. The Order left open the issue of how class certification expert disclosures would be governed. 2. The Parties have conferred and have agreed to a proposed class certification briefing schedule and expert protocol, subject to approval by the Court. 3. The Parties propose a schedule as follows: The Plaintiff will file its class Feb. 25, 2022 certification motion and include the reports of any class certification experts with the motion (and the Parties will agree to mutually-agreeable dates for the depositions of Plaintiff’s class certification experts to occur by March 7, 2022): The Defendant will file its March 28, 2022 opposition to the class certification motion and include the reports of any class certification experts with the opposition (and the Parties will agree to a mutually-agreeable date (or dates) for the deposition(s) of Defendant's class certification expert(s)): The Plaintiff will file its reply April 18, 2022 to Defendant’s opposition: American Insurance Company operates as an insurance company. A copy of the Parties' motion order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3gQgSak at no extra charge.[CC] AGA SERVICE: Eighth Cir. Affirms Dismissal of Bauer Insurance Suit ------------------------------------------------------------------ In the case, Logan Bauer, individually and on behalf of all others similarly situated, Plaintiff-Appellant v. AGA Service Company, doing business as Allianz Global Assistance; Jefferson Insurance Company, Defendants-Appellees, Case No. 20-3711 (8th Cir.), the U.S. Court of Appeals for the Eighth Circuit affirmed the district court's dismissal of the Plaintiff's lawsuit for failure to state a claim. I. Background Bauer booked a round-trip flight and bought two corresponding travel insurance policies with AGA Service Company and Jefferson Insurance Company. Bauer later cancelled the flight because of government-imposed COVID-19 stay-at-home orders. He then filed a claim for insurance proceeds, but the insurers denied his claim under one policy, and Bauer alleged in his complaint that the insurers were also likely to deny his claim as to the other policy. Seeking to determine his rights and to obtain recovery for himself and others in his situation, Bauer sued the insurers in federal court. In January 2020, Bauer booked a round-trip flight and bought two corresponding travel insurance policies with the insurers -- one for the flight there and the other for the flight back. The parties agree that the relevant language of both insurance policies was identical. Both policies covered flight cancellations for quarantines. The policies define a quarantine as "mandatory confinement, intended to stop the spread of a contagious disease to which you or a traveling companion may have been exposed." After booking the flight but before Bauer's trip, state and local government officials issued stay-at-home orders to slow the spread of COVID-19, directing people to cease all non-essential activities, including travel. Though Bauer did not allege he contracted COVID-19, he alleged he cancelled his flight because of the stay-at-home orders. Bauer sought coverage for the cancelled flight under the insurance policies. The insurers denied Bauer's claim under one policy, and because the policies had the same relevant provisions and his claim involved the same underlying facts, Bauer alleged in his complaint that the insurers were likely to also deny his claim under the other policy. The insurers asserted that, among other reasons, Bauer's cancellation was not covered under the policies because the policies exclude coverage for losses caused by an epidemic. Mr. Bauer brought a class action complaint based on diversity jurisdiction against the insurers, seeking to represent a nationwide class of people whose trips were cancelled because of COVID-19 stay-at-home orders and who were not paid by these insurers. He alleged the insurers both breached their contracts and committed bad faith refusal to pay. He also sought a declaratory judgment stating the policies provide coverage for cancelled trips because of the stay-at-home orders. The insurers moved to dismiss Bauer's complaint in its entirety for failure to state a claim and for lack of personal jurisdiction. They also moved to strike non-resident insureds and policyholders from the proposed class. The district court, persuaded by the insurers' argument the policies excluded coverage from any loss resulting from an epidemic, granted the insurers' motion to dismiss all Bauer's claims under Federal Rule of Civil Procedure 12(b)(6). With the complaint dismissed, the district court did not address the insurers' other motions. Bauer appeals the dismissal. II. Analysis In the appeal, the insurers do not dispute that Bauer was quarantined as required for coverage under the policies. But they argue that Bauer's specific quarantine fell under the policies' epidemic exclusion. In Missouri, "it is the insured's burden to establish coverage under the policy and the insurer's burden to show that an exclusion to coverage applies." "Missouri courts strictly construe exclusionary clauses against the insurer." In the case, the Eighth Circuit holds that the insurers meet their burden in showing the exclusion applies. It concludes that an ordinary person of average understanding reading the policy terms would deduce that WHO "recognized" COVID-19 as either a pandemic or an epidemic by including COVID-19 on its list of pandemic or epidemic diseases. This requirement in the policy is satisfied. It also concludes both that Bauer's flight cancellation resulted from the COVID-19 epidemic and that the epidemic affected Bauer. As Mr. Bauer admits in his complaint, the many stay-at-home orders were issued to slow the spread of COVID-19, causing him to quarantine and cancel his trip. The orders, while a reaction to the epidemic rather than the epidemic itself, are not so unrelated or independent that we can conclude the COVID-19 epidemic did not affect Bauer. Nor can the Eighth Circuit conclude the Bauer's flight cancellation did not result from the COVID-19 epidemic. The Eighth Circuit reject Bauer's assertion that the policies required him to have been infected with COVID-19 to be affected by it. While infection is certainly a kind of effect, the term "affect" is not bound to that narrow scope. Indeed, when the contractual parties elsewhere sought to condition a provision on a requirement that an individual become ill, they did so expressly. For similar reasons rejects Bauer's argument that Missouri's concurrent proximate cause rule applies. The rule "states that an insurance policy will be construed to provide coverage where an injury was proximately caused by two events -- even if one of these events was subject to an exclusion clause -- if the differing allegations of causation are independent and distinct. For this "rule to apply, the injury must have resulted from a covered cause that is truly independent and distinct from the excluded cause." Bauer asks the Eighth Circuit to conclude that his quarantine, which arose from the stay-at-home orders, was truly independent and distinct from the COVID-19 epidemic. The Eighth Circuit disagrees holding that the concurrent proximate cause rule does not apply in the case. III. Conclusion Mr. Bauer's flight cancellation caused by the government's stay-at-home orders fell under his travel insurance policies' epidemic exclusion. The Eighth Circuit, thus, affirmed the district court's judgment dismissing Bauer's complaint for failure to state a claim in its entirety. A full-text copy of the Court's Feb. 9, 2022 Order is available at https://tinyurl.com/2bnb8pet from Leagle.com. ALIBABA GROUP: Salem Gharsalli Appointed as Lead Plaintiff ---------------------------------------------------------- In the class action lawsuit captioned as LAURA CICCARELLO, individually and on behalf of others similarly situated, v. ALIBABA GROUP HOLDING LIMITED, DANIEL : ZHANG, MAGGIE WU, Case No. 1:20-cv-09568-GBD-JW (S.D.N.Y.), the Hon. Judge George B. Daniels entered an order: 1. denying Makadia/Tongbiao Group and Pension Fund's motions for appointment as lead plaintiff and lead counsel; and 2. granting Gharsalli's motion for appointment as lead plaintiff and approval of Glancy Prongay & Murray LLP as lead counsel. Before this Court is a consolidated securities fraud class action suit against the Defendants. The Plaintiffs in all cases purchased shares of Alibaba and allege that 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. Putative class members Salem Gharsalli Dineshchandra Makadia and Yan Tongbiao, and 1199 SEIU Health Care Employees Pension Fund (the "Pension Fund") each filed motions for appointment as lead plaintiff and to appoint their attorneys as lead counsel. Alibaba is the largest e-retailer in the world and operates, among other online marketplaces, Tmall, an online and mobile commerce platform. Alibaba also owns a 33% equity interest in Ant Small and Micro Financial Services Group Co., Ltd. ("Ant Group"), a financial technology company best known for operating Alipay, a mobile and online payment platform. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3H25imZ at no extra charge.[CC] AMAZON.COM: Order Setting Class Cert. Dates Entered in Street ------------------------------------------------------------- In the class action lawsuit captioned as MARY STREET et al., v. AMAZON.COM SERVICES INC, et al., Case No. 2:21-cv-00912-BJR (W.D. Wash.), the Hon. Judge Barbara J. Rothstein entered an order setting trial date and related dates as follows: -- Jury trial date: June 12, 2023 -- Deadline for joining additional March 10, 2022 parties: -- Deadline for filing amended March 21, 2022 pleadings: -- Reports from expert witness March 10, 2023 under FRCP 26(a)(2) due: -- Discovery completed by: December 16, 2022 -- All dispositive motions must January 16, 2023 be filed by: -- All motions in limine must be May 8, 2023 filed by: -- Joint Pretrial Statement: May 15, 2023 -- Pretrial conference May 30, 2023 These dates are set at the direction of the Court after reviewing the joint status report and discovery plan submitted by the parties. All other dates are specified in the Local Civil Rules and/or the Court's Standing Order in all civil cases. If any of the dates identified in this Order, the Standing Order, or the Local Civil Rules fall on a weekend or federal holiday, the act or event shall be performed on the next business day. These are firm dates that can be changed only by order of the Court, not by agreement of counsel or the parties, Judge Rothstein says. Amazon Services LLC offers many of the Web service platforms that are Amazon offers. The Company was founded in 2006 and is based in Seattle, Washington. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3gVdF9E at no extra charge.[CC] AMERICAN AIRLINES: Ismail Labor Code Suit Goes to C.D. California ----------------------------------------------------------------- The case styled ESSAMELDIN ISMAIL, individually and on behalf of all others similarly situated v. AMERICAN AIRLINES, INC. and DOES 1 through 50, inclusive, Case No. 21STCV37790, was removed from the Superior Court of the State of California, County of Los Angeles, to the U.S. District Court for the Central District of California on February 17, 2022. The Clerk of Court for the Central District of California assigned Case No. 2:22-cv-01111 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 provide meal periods, failure to provide rest periods, failure to pay overtime wages at the correct rate of pay, failure to pay sick leave at the correct rate of pay, and unfair competition. American Airlines, Inc. is an airline company, headquartered in Fort Worth, Texas. [BN] The Defendant is represented by: Adam P. Kohsweeney, Esq. O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111-3823 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 E-mail: akohsweeney@omm.com - and – Kelly S. Wood, Esq. O'MELVENY & MYERS LLP 610 Newport Center Drive, 17th Floor Newport Beach, CA 92660 Telephone: (949) 823-6900 Facsimile: (949) 823-6994 E-mail: kwood@omm.com AMERICAN GENERAL: LSIMC Seeks to Certify Class of Policy Owners --------------------------------------------------------------- In the class action lawsuit captioned as LSIMC, LLC, on behalf of itself and all others similarly situated, v. AMERICAN GENERAL LIFE INSURANCE COMPANY, Case No. 2:20-cv-11518-SVW-PVC (C.D. Cal.), the Plaintiff asks the Court to enter an order granting class certification, appointing Plaintiff as class representative, and appointing Susman Godfrey, L.L.P. as class counsel for the following "Investment Earnings Only California Class": "All current and former owners of life insurance policies who have received credited interest on policies issued by American General Life Insurance Company, or its predecessors, in the State of California on policy forms that provide that any redetermination of interest rates will be based "only on expectations of future investment earnings" and that have a guaranteed minimum annual effective interest rate of 3.00%." Excluded from the class are (a) Defendant, its officers and directors, members of their immediate families, and the heirs, successors, or assigns of any of the foregoing; (b) all judges presiding in this case and their chambers staff; and (c) all counsel of record in this case. LSIMC LLC covers insurance services. American General operates as an insurance company. A copy of the Plaintiff's motion to certify class dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3JATxpk at no extra charge.[CC] The Plaintiff is represented by: Steven Sklaver, Esq. Glenn C. Bridgman, Esq. Lear Jiang, Esq. SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, 14th Floor Los Angeles, CA 90067 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 E-mail: ssklaver@susmangodfrey.com gbridgman@susmangodfrey.com ljiang@susmangodfrey.com - and - Seth Ard, Esq. Ryan C. Kirkpatrick, Esq. SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas, 32nd Floor New York, NY 10019 Telephone: (212) 336-8330 Facsimile: (212) 336-8340 E-mail: sard@susmangodfrey.com rkirkpatrick@susmangodfrey.com ANDERSON COUNTY, TN: Court Nixes Venue Motion in Accord Class Suit ------------------------------------------------------------------ In the case, GARY ACCORD, individually and on behalf of all others similarly situated, Plaintiffs v. ANDERSON COUNTY, TENNESSEE, et al., Defendants, Case No. 3:21-cv-00077 (M.D. Tenn.), Judge Eli Richardson of the U.S. District Court for the Middle District of Tennessee, Nashville Division, denied Defendant Cocke County's motion to assert the alternative theory that venue is now improper such that the action should be dismissed or transferred. I. Background On June 29, 2018, Plaintiff Accord was arrested by Tennessee Highway Patrolman Paul Kilday in Cocke County, Tennessee. Kilday prepared a complaint-affidavit on a State of Tennessee Uniform Citation Form. The Plaintiff then was prosecuted using the Uniform Citation Form/Affidavit of Complaint as a charging instrument. He was charged with a DUI, which was eventually reduced to reckless endangerment. He was sentenced to 11 months and 29 days in jail with a suspended sentence. The Plaintiff filed the present case on Feb. 1, 2021, as a class action complaint against every county in Tennessee (but no one else). Thereafter, he filed an Amended Complaint against the same Defendants, therein asserting the following four counts, respectively: (1) violations of the Fourth, Sixth and Fourteenth Amendments; (2) substantive due process violations under the Sixth and Fourteenth Amendment; (3) false imprisonment; and (4) false light invasion of privacy. Various Defendants filed motions to dismiss, including the Rule 12(b)(6) motion, which was filed collectively by most of the Defendants, including Cocke County, and asserted several different purported bases for dismissal. Ultimately, during its review of some of these motions, the Court determined that the Plaintiff had failed to establish standing to bring a claim against any Defendant except Cocke County. Accordingly, it ordered that all the Defendants except Cocke County be dismissed (and administratively terminated as parties)3 and that the Rule 12(b)(6) motion remain pending only as to Cocke County. Cocke County, the only remaining Defendant, subsequently filed a purported "supplement" to its Rule 12(b)(6) motion -- i.e., the Venue motion -- to request dismissal under Rule 12(b)(3) based on allegedly improper venue, or alternatively, a transfer of venue to the Eastern District of Tennessee pursuant to 28 U.S.C. Section 1406(a). Judge Richardson treats this, not as a supplement, but as a separately filed additional motion on venue. II. Discussion The Amended Complaint states that "venue is proper within the Middle District of Tennessee pursuant to 28 U.S.C. Section 1391 (b) (1)." Under Section 1391(b), venue is appropriate under one of three scenarios: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. In its supplement to the Motion, Cocke County argues that "venue is no longer proper as Cocke County is located in the judicial district for the Eastern District of Tennessee rather than the Middle District of Tennessee." Judge Richardson finds that the argument fails to consider Section 1391(c)(2), which addresses residency for venue purposes for defendants (like Cocke County) that are not natural persons. It is not disputed that the Middle District of Tennessee has personal jurisdiction over Cocke County, and therefore under 28 U.S.C. Section 1391(c)(2) Cocke County is properly deemed a resident of the Middle District (as well as the Eastern District and, for that matter, the Western District) for venue purposes, including for purposes of applying Section 1391(b). Even assuming arguendo that the Court should make a venue determination under Section 1391(b) based on the residence of Cocke County only and not all of the original Defendants (the kind of thing some courts have been known to do)6, Judge Richardson holds that venue in the case is proper in the Middle District of Tennessee pursuant to 28 U.S.C. Section 1391(b)(1) as Cocke County technically resides in the Middle District of Tennessee. For that reason, he denies Cock County's motion to dismiss for improper venue under 28 U.S.C. Section 1406(a). Nonetheless, a district court is empowered to transfer a civil action to another appropriate district sua sponte under 28 U.S.C. Section 1404(a) "for the convenience of and witnesses." But the court should first provide the parties with notice of this consideration and an "opportunity to be heard on the matter." It appears to Judge Richardson that the Eastern District of Tennessee may very well be a more appropriate venue for the case as it proceeds. All current parties to the case reside in the Eastern District, specifically Cocke County, and based on the relevant facts alleged in the Amended Complaint, it appears that the majority of evidence would be found within Cocke County. For that reason, Judge Richardson is considering sua sponte transferring the case under 28 U.S.C. Section 1404(a) and will make its final determination on whether transfer is appropriate after the parties are provided an opportunity to share their views on the matter. III. Conclusion Judge Richardson concludes that the district is not an improper venue, but he strikes the Court as likely far from the best venue. Accordingly, and for the reasons further discussed, he denied Defendant Cocke County's Venue motion. As the Court is instead considering sua sponte transferring the case to the Eastern District of Tennessee under 28 U.S.C. Section 1404(a), each party may fil a notice of its position (and the basis therefor) regarding the potential transfer of the case to the Eastern District of Tennessee. Cocke County's Rule 12(b)(6) motion will remain pending until the Court has reached a decision on whether to transfer the action sua sponte. If the Court does not decide to transfer this case to the Eastern District, it will proceed with consideration of the Defendant's Rule 12(b)(6) motion. A full-text copy of the Court's Feb. 9, 2022 Order is available at https://tinyurl.com/2p99t332 from Leagle.com. APPLE INC: Faces Class Action Over Alleged "Jelly Scroll" Defect ---------------------------------------------------------------- Colors of India reports that a California resident has filed a class-action lawsuit against Apple, accusing them of knowingly selling defective products. According to the court documents, the company is being questioned about a so-called "jelly scroll" defect that is present on the 6th generation iPad mini. The iPad Mini 6 debuted on September 14, 2021, following which, many users notice the defect when vertically scrolling through text-based content such as webpages or documents. The effect made it look as if one half of the display is responding faster than the other -- or more specifically, the left side of the screen lagged behind, causing a tilting effect. Plaintiff Christopher Bryan claims that the LCD display is prone to "screen tearing which can make images or text on one side of the screen appear to be tilted at a downward angle because of incongruity in refresh rates." It is worth noting that Apple has acknowledged this defect, though they have continued to sell the product in said state, claiming it is normal. The onslaught of negative reviews prompted tech journalist iFixit to tear down the tablet to figure out the source of the defect. Turns out, the iPad Mini 6 has a controller board that is mounted vertically on the left-hand side of the device. In contrast, the iPad Air has the same board fitted on the top end of the tablet. In September, an Apple spokesperson told Ars Technica that the jelly scroll effect is normal behaviour for LCD panels. The screen is designed to refresh line by line, causing a slight delay between the lines at the top and the ones coming up. Plaintiff brings this concern individually and on behalf of others who suffered similar issues with the product -- even after going through the company's warranty policy. [GN] APPLE INC: Faces Suit Over CEO's iPhone Demand Comments in China ---------------------------------------------------------------- Malcom Owen, writing for Apple Insider, reports that a lawsuit brought against Apple by an English council over comments made by Tim Cook about iPhone demand in China has been granted class-action status. A group of shareholders led by the UK's Norfolk County Council has succeeded in converting its lawsuit against Apple to a class action version. The move opens the lawsuit up to any affected shareholder, and potentially raises the stakes for the iPhone maker. The lawsuit deals with commentary by Cook during the November 2018 earnings call, in that the CEO said Apple was seeing sales pressure in some markets. However, Cook went on to state "I would not put China in that category. In 2019, Apple revised its revenue guidance prediction down because of lower iPhone sales in China. Shareholders, including Norfolk County Council, believe the revised guidance was too late, and that Apple should've foreseen the issue. After being informed in November 2020 that the shareholders could bring a proposed class-action suit over accusations the company concealed falling sales demand, the group's proposal was granted, reports The Telegraph. Judge Yvonne Gonzalez-Rogers advised Apple had failed to dismiss the council's efforts to turn the lawsuit into a class-action suit, referring to Apple's arguments on the matter as "distortions." Norfolk County Council is involved as it runs the Norfolk Pension Fund, valued at multiple billions of pounds. In the original lawsuit, it was claimed the fund lost close to $1 million over the comments. The change to a class action suit does more than enable more shareholders to join in against Apple, as it also reduces the standard of proof required by claimants. Under a "presumption of reliance," the council wouldn't need to demonstrate that it made trading decisions after hearing Cook's analyst call comments. According to Apple, Cook's comments were a statement of opinion, and therefore protected. The claim "fails to plead any actionably false or misleading statement." [GN] AT&T INC: Time Extension for Class Cert. Deadlines Sought in Scott ------------------------------------------------------------------ In the class action lawsuit captioned as Timothy Scott, Patricia Gilchrist, Karen Fisher, Helen Maldonado-Valtierra, Judy Duff, John Griffin, Kenneth Rhodes, Judy Dougherty, John Kelly, Richard Walshon, and Dan Koval, on behalf of themselves and all others similarly situated, v. AT&T Inc., AT&T Services, Inc. and the AT&T Pension Benefit Plan, Case No. 3:20-cv-07094-JD (N.D. Cal.), the Plaintiffs ask the Court to enter an order granting an extension of the following deadlines: Current Proposed Deadline Deadline -- Rebuttal Expert March 29, 2022 April 12, 2022 Disclosures: -- Expert Discovery Cut-off: April 29, 2022 May 13, 2022 -- Motion for Class May 23, 2022 June 6, 2022 Certification: -- Opposition to Class June 20, 2022 July 5, 2022 Certification: -- Class Certification Reply July 18, 2022 Aug. 1, 2022 -- Class Certification Aug. 11, 2022 TBD Hearing: AT&T is an American multinational conglomerate holding company that is Delaware-registered but headquartered at Whitacre Tower in Downtown Dallas, Texas. A copy of the Plaintiffs' dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3oUX2Py at no extra charge.[CC] The Plaintiffs are represented by: Michelle C. Yau, Esq. Mary Bortscheller, Esq. Daniel R. Sutter, Esq. Laura E. Older, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave, NW, Fifth Floor Washington DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 - and - Todd Jackson, Esq. Nina Wasow, Esq. FEINBERG, JACKSON, WORTHMAN & WASOW, LLP 2030 Addison St., Suite 500 Berkeley, CA 94704 Telephone: (510) 269-7998 Facsimile: (510) 269-7994 - and - Peter K. Stris, Esq. Rachana A. Pathak, Esq. Victor O'Connell, Esq. John Stokes, Esq. STRIS & MAHER LLP 777 S. Figueroa St., Suite 3850 Los Angeles, CA 90017 Telephone: (213) 995-6800 Facsimile: (213) 261-0299 - and - Shaun P. Martin, Esq. UNIVERSITY OF SAN DIEGO LAW SCHOOL 5998 Alcala Park, Warren Hall San Diego, CA 92110 Telephone: (619) 260-2347 Facsimile: (619) 260-7933 BARNSTORMERS BASKETBALL: Seeks to Amend Class Notice Order ---------------------------------------------------------- In the class action lawsuit captioned as JOHN DOE, and all others similarly situated, v. GREGORY SCOTT STEPEHEN, BARNSTORMERS BASKETBALL, INC. d/b/a BARNSTORMERS BASKETBALL OF IOWA, AMATEUR ATHLETIC UNION OF THE UNITED STATES, INC., and ADIDAS AMERICA, INC., Case No. 3:20-cv-00005-SHL (S.D. Iowa), Barnstormers Basketball asks the Court to enter an order for its motion to amend or alternatively clarify class notice Order. On February 2, 2022 the Court entered its Order granting in part, and denying in part, the parties' proposals of class action notice in this matter. In its resistance/response to Plaintiffs' proposed class action notice, Barnstormers objected to any attempts to shift the burden of providing class notice from Plaintiffs to it. BBI respectfully requests the Court amend its Order to remove these obligations and methods of service required from BBI. Barnstormers Basketball of Iowa is a non-profit, tax-exempt organization. A copy of the Plaintiff's motion dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3gReEY6 at no extra charge.[CC] The Plaintiff is represented by: Guy R. Cook, Esq. Adam D. Zenor, Esq. Michael C. Kuehner, Esq. Michael D. Currie, Esq. GREFE & SIDNEY, P.L.C. 500 E. Court Ave., Suite 200 Des Moines, IA 50309 Telephone: (515) 245-4300 Facsimile: (515) 245-4452 E-mail: gcook@grefesidney.com azenor@grefesidney.com mkuehner@grefesidney.com mcurrie@grefesidney.com - and - Connie Alt, Esq. SHUTTLEWORTH & INGERSOLL, P.L.C. 115 3 rd Street SE, #500 Cedar Rapids, IA 52401 Telephone: (319) 365-9461 Facsimile: (319) 365-8443 E-mail: cma@shuttleworthlaw.com dlo@shuttleworthlaw.com The Attorneys for Defendant, Barnstormers Basketball, Inc., are: Martha L. Shaff, Esq. Brandon W. Lobberecht, Esq. BETTY, NEUMAN & McMAHON, P.L.C. 1900 East 54 th Street Davenport, IA 52807-2708 Telephone: (563) 326-4491 Facsimile: (563) 326-4498 E-mail: martha.shaff@bettylawfirm.com brandon.lobberecht@bettylawfirm.com The Attorneys for Defendant, Amateur Athletic Union of the United States, Inc., are: Jeffrey L. Goodman, Esq. Nicole L. Keller, Esq. GOODMAN LAW, P.C. 1501 W. 42 nd Street, Suite 300 West Des Moines, IA 50266 Telephone: (515) 267-8600 Facsimile: (515) 224-2075 E-mail: jeff@golawpc.com The Attorneys for Adidas America, Inc., are: Matthew A. Levin, Esq. Stanton R. Gallegos, Esq. MARKOWITZ HERBOLD P.C. 1455 SW Broadway, Suite 900 Portland, OR 97201 Telephone: (503) 295-3085 Facsimile: (503) 323-9105 E-mail: stantongallegos@markowitzherbold.com mattlevin@markowitzherbold.com BELLRING BRANDS: Faces Consumer Class Actions in Various Courts --------------------------------------------------------------- BellRing Brands, Inc. disclosed in its Form 10-Q Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 4, 2022, that several class action lawsuits were filed against the company on various allegations with one in D. N.J. dismissed. In March 2013, a complaint was filed on behalf of a putative, nationwide class of consumers against Premier Nutrition in the U.S. District Court for the Northern District of California seeking monetary damages and injunctive relief. The case asserted that some of Premier Nutrition's advertising claims regarding its Joint Juice line of glucosamine and chondroitin dietary supplements were false and misleading. In April 2016, the district court certified a California-only class of consumers in this lawsuit. In 2016 and 2017, the lead plaintiff's counsel in the California Federal Class Lawsuit filed ten additional class action complaints in the U.S. District Court for the Northern District of California on behalf of putative classes of consumers under the laws of Connecticut, Florida, Illinois, New Jersey, New Mexico, New York, Maryland, Massachusetts, Michigan and Pennsylvania. These additional complaints contain factual allegations similar to the California Federal Class Lawsuit, also seeking monetary damages and injunctive relief. The New Jersey case was voluntarily dismissed. Trial is scheduled to commence in the New York case on May 23, 2022. In April 2018, the district court dismissed the California Federal Class Lawsuit with prejudice. This dismissal was upheld on appeal by the U.S. Court of Appeals for the Ninth Circuit and Plaintiff's petition for an en banc rehearing by the Ninth Circuit was denied. The other complaints remain pending in the U.S. District Court for the Northern District of California, and the court has certified individual state classes in each of those cases. In January 2019, the same lead counsel filed an additional class action complaint against Premier Nutrition in California Superior Court for the County of Alameda, alleging claims similar to the above actions and seeking monetary damages and injunctive relief on behalf of a putative class of California consumers, beginning after the California Federal Class Lawsuit class period. In September 2020, the same lead counsel filed another class action complaint against Premier Nutrition in California Superior Court for the County of Alameda, alleging identical claims and seeking restitution and injunctive relief on behalf of the same putative class of California consumers as the California Federal Class Lawsuit. BellRing Brands, Inc. is a consumer products holding company based in Missouri. BEND MEMORIAL: Discovery & PTO Dates Extended in Fulkerson Suit --------------------------------------------------------------- In the class action lawsuit captioned as Fulkerson, et al., v. Bend Memorial Clinic, et al., Case No. 6:20-cv-01579 (D. Or.), the Hon. Judge Ann L. Aiken entered an order on motion for extension of discovery & PTO deadlines as follows: -- Class certification discovery May 16, 2022 shall be completed by: -- Expert reports as to class May 31, 2022 certification are due by: -- Depositions of class certification Aug. 4, 2022 experts shall be completed by: -- Plaintiffs' Motion for Class Aug. 15, 2022 Certification/Defendants' Motion for Summary Judgment shall be filed by: -- Defendants' Memorandum in Sept. 19, 2022 Opposition to Class Certification/ Plaintiffs' Memorandum in Opposition to Summary Judgment shall be filed by: -- Plaintiffs' Reply Memorandum in Oct. 6, 2022 support of class certification/ Defendants' Reply to Motion for Summary Judgment shall be filed by: -- Non-dispositive motions, excluding Nov. 28, 2022 trial and trial related motions shall be filed by: -- Dispositive Motions are due by: Jan. 13, 2023 The suit alleges violation of the Americans with Disabilities Act. Bend Memorial Clinic is a multi-specialty clinic in Central Oregon with imaging and lab services as well as urgent care.[CC] BIOGEN INC: Bragar Eagel & Squire Reminds of April 8 Deadline ------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of Biogen, Inc. (NASDAQ: BIIB), Telos Corporation (NASDAQ: TLS), Fennec Pharmaceuticals, Inc. (NASDAQ: FENC), and Astra Space, Inc. (NASDAQ: ASTR). Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided. Biogen, Inc. (NASDAQ: BIIB) Class Period: June 7, 2021 - January 11, 2022 Lead Plaintiff Deadline: April 8, 2022 The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) the larger dataset did not provide necessary data regarding aducanumab's effectiveness; (2) the EMERGE study did not and would not provide necessary data regarding aducanumab's effectiveness; (3) the PRIME study did not and would not provide necessary data regarding aducanumab's effectiveness; (4) the data provided by the Company to the FDA's Peripheral and Central Nervous System Drugs Advisory Committee did not support finding efficacy of aducanumab; and (5) as a result, defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. For more information on the Biogen class action go to: https://bespc.com/cases/BIIB Telos Corporation (NASDAQ: TLS) Class Period: November 19, 2020 - November 12, 2021 Lead Plaintiff Deadline: April 8, 2022 The Class Action alleges that, during the Class Period, Defendants made materially false and misleading statements and failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose that: (1) the TSA and CMS contracts, which constituted a majority of the Company's future revenues, were not on track to commence as represented at the end of 2021 and in 2022; (2) Defendants lacked a reasonable basis and sufficient visibility to provide and affirm the Company's 2021 guidance in the face of the uncertainty surrounding the TSA and CMS contracts; (3) COVID- and hacking scandal-related headwinds were throwing off the timing for performance of the TSA and CMS contracts and their associated revenues; (4) as a result, the guidance provided by Defendants was not in fact "conservative"; (5) as a result of the delays, Telos would be forced to dramatically reduce its revenue estimates; and (6) as a result of the foregoing, Defendants' statements about Telos' business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. On this news, the Company's stock price fell $6.84, or 28%, to close at $17.54 per share on November 15, 2021. For more information on the Telos class action go to: https://bespc.com/cases/TLS Fennec Pharmaceuticals, Inc. (NASDAQ: FENC) Class Period: May 28, 2021 - November 26, 2021 Lead Plaintiff Deadline: April 11, 2022 According to the complaint, Fennec completed its submission of a New Drug Application ("NDA") with the U.S. Food and Drug Administration ("FDA") for PEDMARK for the prevention of ototoxicity induced by cisplatin chemotherapy in patients 1 month to less than 18 years of age with localized, non-metastatic, solid tumors, in February 2020. In August 2020, Fennec announced it had received a Complete Response Letter ("CRL") from the FDA for the NDA because of deficiencies identified at the manufacturing facility of the Company's drug product manufacturer. Fennec resubmitted the NDA in May 2021. On November 29, 2021, Fennec announced "that it expects to receive a [CRL] after the PDUFA [Prescription Drug User Fee Act] target action date of November 27, 2021 from the [FDA] regarding its [Resubmitted Pedmark NDA]." Deficiencies at the manufacturing facility of Fennec's drug product manufacturer had again been identified, and "[o]nce the official CRL is received, the Company plans to request a Type A meeting to discuss the deficiencies and steps required for the resubmission of the NDA for PEDMARK(TM)." On this news, Fennec's share price fell over 50%, to close at $4.78 per share on November 29, 2021. For more information on the Fennec class action go to: https://bespc.com/cases/FENC Astra Space, Inc. (NASDAQ: ASTR) Class Period: February 2, 2021 - December 29, 2021 Lead Plaintiff Deadline: April 11, 2022 On December 29, 2021, Kerrisdale Capital published a report stating that Astra's claim of being able to launch its rockets "anywhere in the world" was "simply not true." The report alleged that in the US, Astra could only launch from an FAA-licensed commercial spaceport approved for vertical launch, and that only five such sites exist in the country. Furthermore, the report pointed out that Astra had managed just a single successful orbital test flight, despite the Company's forecast calling for 165 launches by 2024 and 300 launches by 2025. On this news, Astra's stock fell $1.10, or 14%, to close at $6.61 per share on December 29, 2021, thereby injuring investors. The complaint alleges that, throughout the Class Period, Defendants made materially false and misleading statements and/or failed to disclose that: (1) Astra cannot launch "anywhere"; (2) Astra significantly overstated its addressable market; (3) Astra overstated the effectiveness of its designs and reliability; (4) Astra significantly overstated its plans for diversification and its broadband constellation plan; and (5) as a result, defendants' public statements were materially false and/or misleading at all relevant times. For more information on the Astra Space class action go to: https://bespc.com/cases/ASTR 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. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B. Raymond, Esq. (212) 355-4648 investigations@bespc.com www.bespc.com [GN] C.I. LOBSTER: Pagan Seeks Conditional Status of Collective Action ----------------------------------------------------------------- In the class action lawsuit captioned as JOSEPH PAGAN v. C.I. LOBSTER CORP., JOSEPH MANDARINO, RICHARD MANDARINO, and JOHN MANDARINO, Case No. 1:20-cv-07349-ALC-SDA (S.D.N.Y.), the Plaintiff asks the Court to enter an order conditionally certifying a collective action and approving and authorizing distribution of a notice of collective action lawsuit to putative party plaintiffs and related relief. On February 8, 2022, the Plaintiff asked Defendants for the length of time they would seek for opposition, and, on February 9, 2022, Defendants stated March 25, 2022, to which Plaintiff agrees. The Plaintiff’s reply is due one week later, on April 1, 2022, under Local Rule 6.1. A copy of the Plaintiff's motion to certify class dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/33xKVRe at no extra charge.[CC] The Plaintiff is represented by: Finn Dusenbery, Esq. The Ottinger Firm, P.C. 79 Madison Ave New York, NY 10016 CASINO QUEEN: Scheduling and Discovery Order Entered in Hensiek --------------------------------------------------------------- In the class action lawsuit captioned as TOM HENSIEK, ET AL, v. BOARD OF DIRECTORS OF CASINO QUEEN HOLDING COMPANY, INC., ET AL., Case No. 3:20-cv-00377-DWD (S.D. Ill.), the Hon. Judge David W. Dugan entered an order adopting joint report and proposed scheduling and discovery order as follows: -- Depositions upon oral examination, interrogatories, requests for documents, and answers and responses thereto shall not be filed unless on order of the Court. -- Disclosures or discovery under F ED . R. C IV . P. 26(a) are to be filed with the Court only to the extent required by the final pretrial order, other Court order, or if a dispute arises over the disclosure or discovery and the matter has been set for briefing. -- The parties should note that they may, pursuant to FED. R.CIV. P. 29, modify discovery dates set in the Joint Report by written stipulation, except that they may not modify a date if such modification would impact the deadline for the completion of all discovery, the deadline for filing dispositive motions, or the date of any court appearance. Casino Queen offers hospitality and entertainment services. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/33toOLz at no extra charge.[CC] CHURCHILL CORPORATE: Order on General Pretrial Management Entered ----------------------------------------------------------------- In the class action lawsuit captioned as DONNA HEDGES v. CHURCHILL CORPORATE SERVICES INC., Case No. 1:22-cv-01110-PAE-BCM (S.D.N.Y.), the Hon. Judge Barbara Moses entered an order regarding general pretrial management as follows: All pretrial motions and applications, including those related to scheduling and discovery (but excluding motions to dismiss or for judgment on the pleadings, for injunctive relief, for summary judgment, or for class certification under Fed. R. Civ. P. 23) must be made to Judge Moses and in compliance with this Court's Individual Practices in Civil Cases, available on the Court's website at https://nysd.uscourts.gov/hon-barbara-moses. There is no indication on the docket of this action that any defendant has been served with process, and thus no initial conference has taken place and no schedule has been set for motions or any other pretrial proceedings. Parties and counsel are cautioned: 1. Once a discovery schedule has been issued, all discovery must be initiated in time to be concluded by the close of discovery set by the Court. 2. Discovery applications, including letter-motions requesting discovery conferences, must be made promptly after the need for such an application arises and must comply with Local Civil Rule 37.2 and section 2(b) of Judge Moses's Individual Practices. 3. For motions other than discovery motions, pre-motion conferences are not required, but may be requested where counsel believe that an informal conference with the Court may obviate the need for a motion or narrow the issues. 4. Requests to adjourn a court conference or other court proceeding (including a telephonic court conference) or to extend a deadline must be made in writing and in compliance with section 2(a) of Judge Moses's Individual Practices. Telephone requests for adjournments or extensions will not be entertained. 5. In accordance with section 1(d) of Judge Moses's Individual Practices, letters and letter-motions are limited to four pages, exclusive of attachments. Courtesy copies of letters and letter-motions filed via ECF are required only if the filing contains voluminous attachments. Courtesy copies should be delivered promptly, should bear the ECF header generated at the time of electronic filing, and should include tabs for the attachments. 6. If you are aware of any party or attorney who should receive notice in this action, other than those currently listed on the docket sheet, please notify Courtroom Deputy Kevin Snell at (212) 805-0228 immediately. 7. Counsel for plaintiff must serve a copy of this Order on any defendant previously served with the summons and complaint, must serve this Order along with the summons and complaint on all defendants served hereafter, and must file proof of such service with the Court. Churchill Corporate operates as integrated relocation service provider. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3GWDqAV at no extra charge.[CC] CITIZENS BANK: Court Narrows Claims in Chirchir's 1st Amended Suit ------------------------------------------------------------------ In the case, DR. HABIBA CHIRCHIR, on behalf of herself and a similarly situated class of persons, Plaintiff v. CITIZENS BANK, N.A. d/b/a Citizens One Home Loans, Defendant, Civil Action No. 3:20-0416 (S.D.W. Va.), Judge Robert C. Chambers of the U.S. District Court for the Southern District of West Virginia, Huntington Division: (i) granted in part and denied in part Citizens' Motion to Dismiss Plaintiff Dr. Habiba Chirchir's First Amended Class Action Complaint; and (ii) denied its Supplemental Motion to Dismiss Plaintiff's First Amended Complaint under Fed. R. Civ. P. 12(b)(1). I. Background In 2016, the Plaintiff took out a home mortgage loan and entered into a Deed of Trust with United Bank, Inc. As part of the loan agreement, she was required to pay $50.51 per month for private mortgage insurance ("PMI"). United Bank contracted with Genworth Mortgage Insurance Corp./Genworth Mortgage Insurance Corp. of North Carolina (collectively "Genworth") to provide the PMI on the loan. Approximately two weeks after the loan's origination, United Bank transferred the Plaintiff's loan to Franklin American Mortgage Co., which then transferred the loan about two weeks after that to Fannie Mae. Although Franklin American initially retained the servicing rights on the loan, it transferred those rights to Citizens on May 1, 2019. According to the First Amended Class Action Complaint, the Plaintiff states she made both her May and June loan payments on the same day the serving rights were transferred to Citizens. On June 12, 2019, Citizens processed PMI disbursements from those payments to Genworth for April and May. Thereafter, on June 18, 2019, the Plaintiff paid off the balance of her loan in full. The following day, Citizens disbursed a PMI payment to Genworth in the amount of $50.51, which it asserts was associated with the June payment. Thereafter, on July 1, 2019, Citizens refunded to Plaintiff $1,080.52 as the balance in her escrow account. In her First Amended Class Action Complaint, the Plaintiff indicates all her PMI payments between June 2018 and April 2019 were made between the fifth or eighth of each month. Nonetheless, when she paid off her loan, Citizens made the PMI payment the very next day. The crux of the Plaintiff's allegations against Citizens is that it should not have made the $50.51 disbursement on June 19. Instead, the Plaintiff maintains Citizens was required to pay her $1,131.03, which was the full escrow balance as of June 18. The Plaintiff asserts Genworth only was entitled to the prorated PMI amount of $30.31 for the 18 days in June the loan was active, leaving a $20.20 overpayment. By deducting $50.51 from the escrow account, she alleges violations by Citizens of the Real Estate Settlement Procedure Act ("RESPA") (Count II), Breach of Contract (Count III), and violations of the West Virginia Consumer Credit Protection Act's ("WVCCPA's") protections against fraudulent, deceptive, or misleading representations as to consumer credit protection (Count V) and the WVCCPA's regulations against unfair or deceptive acts or practices (Count VI). In her action, the Plaintiff also brought claims against Genworth under the Homeowners Protection Act ("HPA") (Count 1), the WVCCPA's restrictions guarding against abusive acts or practices as to finance charges and related provisions (Count IV) and the WVCCPA's regulations against unfair or deceptive acts or practices (Count VI). The Plaintiff and Genworth settled their dispute, and on July 16, 2021, they entered into a Stipulation of Dismissal and filed it with the Court. The Stipulation provides that the Plaintiff is dismissing her claims only as to Genworth. The Stipulation does not provide any details whatsoever about the settlement, and it expressly provides that the claims against Citizens remain. II. Discussion A. Standing In its Supplemental Motion to Dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, Citizens argues that the settlement with Genworth has caused the Plaintiff to lose standing both in her personal capacity and as a class representative. In support of its argument, Citizens cites the recent Supreme Court decision in TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021). In TransUnion, the Supreme Court emphasized the necessity of a plaintiff to have suffered a "concrete harm" in order to have Article III standing to maintain an action in federal court. In this case, Citizens does not deny that the Plaintiff had standing when she filed the action. However, it argues that, when she settled with Genworth, she lost standing because she no longer has a "concrete, particularized injury" that the Court can redress. In other words, the satisfaction of the overpayment extinguished her concrete harm and Article III standing. To the contrary, the Plaintiff maintains that Citizens' argument is essentially an improper and premature offensive invocation of the "one satisfaction rule" defense. In support, she cites Trunzo v. Citi Mortgage, Civ. Act. No. 2:11-cv-01124, 2018 WL 741422 (W.D. Pa. Feb. 7, 2018). In Trunzo, the plaintiffs settled their claims against two defendants, leaving only a claim under the Fair Debt Collections Practices Act ("FDCPA") against a third defendant, Phelan Hallinan & Schmieg ("PHS"). The district court found that, in addition to the FDCPA, the settlement included two other claims. It determined the settlement proceeds should not be allocated to set off one hundred percent of the FDCPA claim unless the record is "demonstratively clear" that is what should happen. As it was not clear, it concluded the settlement cannot be said to fully satisfy the FDCPA claim against PHS. Upon consideration, Judge Chambers finds the logic of Trunzo persuasive. In the case, the only thing the Court knows is that Genworth settled its claims with the Plaintiff. The Court does not know the amount of the settlement, how the settlement should be allocated amongst the claims, or if the settlement compensated Plaintiff for actual damages. Moreover, the fact that there was a settlement is not an admission of liability. Therefore, Judge Chambers concludes that the Genworth settlement proceeds cannot be considered to be a full satisfaction of the claims against Citizens, a live case and controversy for purposes of Article III standing still exists, and the Plaintiff has standing to proceed as the putative class representative. Accordingly, the Court denies Citizens' Supplemental Motion to Dismiss Plaintiff's First Amended Class Action Complaint under Fed. R. Civ. P. 12(b)(1). B. Rule 12(b)(6) Turning next to the original motion, Citizens moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Facial plausibility exists when a claim contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Judge Chambers holds that although factual allegations in a complaint must be accepted as true for purposes of a motion to dismiss, this tenet does not apply to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. C. RESPA Judge Chambers considers Citizens' first argument that the Plaintiff's RESPA claim in Count II fails as a matter of law. In Count II, the Plaintiff asserts that Citizens failed to comply with Section 2605(g) of RESPA. In its motion, Citizens states the PMI premiums were "No Credit" and "Non-Refundable" monthly premiums that it was required under Section 2605(g) to submit to Genworth. It asserts it paid the premium to Genworth as required by RESPA and timely paid the Plaintiff the balance in the escrow account. In her Response, the Plaintiff challenges the documents Citizens attached to its motion to support its position that the PMI payments are "No Credit" and "Non-Refundable." The Plaintiff requests the opportunity to verify their accuracy and authenticity through discovery. In considering the parties' arguments, Judge Chambers must keep in mind that the current motion is one to dismiss and the facts must be viewed in the light most favorable to the Plaintiff. The Plaintiff alleges that Citizens failed to pay her the amount contained in the escrow account she was owed when she paid off her loan. There are questions regarding the due date for the PMI payment, whether the payment should have been prorated and, if Citizens' argument is to be accepted, whether it acted reasonably in remitting the entire PMI payment to Genworth. Although there may be nuances of the parties' arguments the Court could parse through, in the end, it is clear that a ruling on Citizens' motion to dismiss the RESPA claim prior to discovery would be premature. Therefore, Judge Chambers denies Citizens' motion to dismiss the Plaintiff's RESPA claim. D. Breach of Contract Citizens next argues that the Plaintiff's breach of contract claim in Count III should be dismissed as a matter of law because Citizens was not a party to the Deed of Trust between the Plaintiff, as borrower, and United Bank, Inc., as lender. Citizens states that neither itself nor any of its predecessor mortgage servicers were a party to the Deed of Trust and it is not in privity of contract with the Plaintiff. Thus, Judge Chambers holds that the Plaintiff cannot maintain a cause of action against it for breach of contract. Although the Plaintiff argues Citizens should be bound by the Deed of Trust or be held liable as an agent, cases in the District have rejected both those arguments. In Count III, the Plaintiff alleges Citizens breached the Deed of Trust by not paying her the balance in her escrow account when she paid off the loan. However, as Citizens was not a party to the agreement, Judge Chambers finds under Hanson and Petty that the Plaintiff's breach of contract claim fails as a matter of law. Therefore, he grants Citizens' motion with respect to the Plaintiff's contract claim. E. WVCCPA Claims Citizens argues the Plaintiff's claims under the WVCCPA also fail as a matter of law. In Count V, the Plaintiff alleges Citizens' role of collecting debt payments and escrow funds qualifies it as a "debt collector" as that term is defined in West Virginia Code Section 46A-2-122(d). In Count VI, the Plaintiff alleges that Citizens' failure to timely refund the entire amount of the escrow account she was violated the "'unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce'" provision of the WVCCPA. Upon review of the parties' arguments, Judge Chambers finds he must analyze Counts V and VI separately. As to Count V, he finds that the Plaintiff has not properly alleged a claim under West Virginia Code Section 46A-2-127. He grants Citizens' motion to dismiss Count V. With respect to Count VI, the Plaintiff asserts Citizens violated the general consumer protection provisions by committing unfair and deceptive acts or practices as contemplated by West Virginia Code Section 46A-6-104 by failing "to timely refund escrow account balances and associated misrepresentations." Judge Chambers holds that the issue is better addressed after discovery and that the Plaintiff has sufficiently alleged a cause of action under subsection (L) to survive a motion to dismiss. And, although the Plaintiff may proceed under subsection (L), she may not proceed under subsection (M). Finally, Judge Chambers finds that the mere fact PMI is not mentioned in section 109 does not preclude it from the consumer protections afforded by other provisions of the WVCCPA. F. Jurisdiction Over Non-Residents Citizens' final argument is that the Court should dismiss the nationwide putative class under Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of both general and specific personal jurisdiction over non-West Virginia residents. In support, Citizens cites Bristol-Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (2017). However, Bristol-Myers involved a mass tort action, and the Court expressly declined in Ross v. Huron Law Group West Virginia, PLLC, 3:18-cv-0036, 2019 WL 637717 (S.D. W. Va. Feb. 14, 2019), to apply the Bristol-Myers' analysis to putative class actions, as exists in the present case. Judge Chambers finds no reason to depart from Ross in the case and, therefore, denies Citizens' motion to dismiss the putative class members who are not West Virginia residents. III. Conclusion Accordingly, for the foregoing reasons, Judge Chambers denied Defendant Citizens' Motion to Dismiss Plaintiff Dr. Habiba Chirchir's First Amended Class Action Complaint as to Count II under RESPA; granted the motion to dismiss Count III for Breach of Contract; granted the motion to dismiss Count V for fraudulent, deceptive, or misleading representations under the WVCCPA; and granted, in part, and denied in part Citizens' motion to dismiss Count VI for unfair or deceptive acts or practices under the WVCCPA. Judge Chambers also denied Citizens' its Supplemental Motion to Dismiss Plaintiff's First Amended Complaint under Fed. R. Civ. P. 12(b)(1). The Clerk is directed to send a copy of the Order to the counsel of record and any unrepresented parties. A full-text copy of the Court's Feb. 9, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/mpaweaxb from Leagle.com. CLARIVATE PLC: Kessler Topaz Reminds of March 25 Deadline --------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com) informs investors that a securities class action lawsuit has been filed against Clarivate Plc ("Clarivate") (NYSE: CLVT; CLVT-PA). The action charges Clarivate with violations of the federal securities laws, including omissions and fraudulent misrepresentations relating to the company's business, operations, and prospects. As a result of Clarivate's materially misleading statements to the public, Clarivate investors have suffered significant losses. Kessler Topaz is one of the world's foremost advocates in protecting the public against corporate fraud and other wrongdoing. Our securities fraud litigators are regularly recognized as leaders in the field individually and our firm is both feared and respected among the defense bar and the insurance bar. We are proud to have recovered billions of dollars for our clients and the classes of shareholders we represent. YOU CAN ALSO CLICK ON THE FOLLOWING LINK OR COPY AND PASTE IN YOUR BROWSER: https://www.ktmc.com/clarivate-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=clarivate LEAD PLAINTIFF DEADLINE:March 25, 2022 CLASS PERIOD: February 26, 2021 through December 27, 2021 CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS: James Maro, Esq. (484) 270-1453 or Email at info@ktmc.com CLARIVATE'S ALLEGED MISCONDUCT Clarivate Plc is an information services and analytics company that provides structured information and analytics for discovery, protection, and commercialization of scientific research, innovations, and brands. On December 27, 2021, Clarivate disclosed in an SEC filing that "[o]n December 22, 2021, Clarivate . . . concluded that the financial statements previously issued as of and for the year ended December 31, 2020, and the quarterly periods ended March 31, 2021, June 30, 2021, and September 30, 2021, should no longer be relied upon because of an error in such financial statements[.]" Specifically, Clarivate revealed that "[t]he error relates to the treatment under U.S. generally accepted accounting principles ('GAAP') relating to an equity plan included in the CPA Global business combination which was consummated on October 1, 2020 ('the CPA Global Transaction')[,]" and that "[i]n the affected financial statements, certain awards made by CPA Global under its equity plan were incorrectly included as part of the acquisition accounting for the CPA Global Transaction." Following this news, Clarivate's stock price declined by $1.70 per share, or 6.92%, to close at $22.88 per share on December 28, 2021. WHAT CAN I DO? Clarivateinvestors may, no later than March 25, 2022 seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose to do nothing and remain an absent class member. Kessler Topaz Meltzer & Check, LLP encourages Clarivate investors who have suffered significant losses to contact the firm directly to acquire more information. WHO CAN BE A LEAD PLAINTIFF? A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. The lead plaintiff is usually the investor or small group of investors who have the largest financial interest and who are also adequate and typical of the proposed class of investors. The lead plaintiff selects counsel to represent the lead plaintiff and the class and these attorneys, if approved by the court, are lead or class counsel. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP Kessler Topaz Meltzer & Check, LLP prosecutes class actions in state and federal courts throughout the country and around the world. The firm has developed a global reputation for excellence and has recovered billions of dollars for victims of fraud and other corporate misconduct. All of our work is driven by a common goal: to protect investors, consumers, employees and others from fraud, abuse, misconduct and negligence by businesses and fiduciaries. At the end of the day, we have succeeded if the bad guys pay up, and if you recover your assets. The complaint in this action was not filed by Kessler Topaz Meltzer & Check, LLP. For more information about Kessler Topaz Meltzer & Check, LLP please visit www.ktmc.com. CONTACT: Kessler Topaz Meltzer & Check, LLP James Maro, Jr., Esq. 280 King of Prussia Road Radnor, PA 19087 (484) 270-1453 info@ktmc.com [GN] COASTAL DRILLING: Ford Sues Over Unpaid Overtime for Pipe Fitters ----------------------------------------------------------------- REGINALD FORD, individually and on behalf of all others similarly situated, Plaintiff v. COASTAL DRILLING COMPANY, LLC, Defendant, Case No. 4:22-cv-00522 (S.D. Tex., February 17, 2022) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated pipe fitters overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff worked for the Defendant as a pipe fitter from April 1, 2019 to July 22,2019. Coastal Drilling Company, LLC is a drilling contractor, located at 311 Saratoga Boulevard, Corpus Christi, Texas. [BN] The Plaintiff is represented by: Gabriel A. Assaad, Esq. Matthew S. Yezierski, Esq. McDONALD WORLEY, P.C. 1770 St. James St., Suite 100 Houston, TX 77056 Telephone: (713) 523-5500 Facsimile: (713) 523-5501 E-mail: gassaad@mcdonaldworley.com matt@mcdonaldworley.com - and – Galvin Kennedy, Esq. KENNEDY LAW FIRM, LLP 2925 Richmond Ave., Ste. 1200 Houston, TX 77098 Telephone: (713) 425-6445 Facsimile: (888) 389-9317 E-mail: Galvin@KennedyAttorney.com COMPREHENSIVE HEALTHCARE: Class Cert. Briefing Schedule Revised --------------------------------------------------------------- In the class action lawsuit captioned as ERIK BLAIR , on behalf of himself and similarly situated employees, v. COMPREHENSIVE HEALTHCARE MANAGEMENT SERVICES, LLC, ET AL., Case No. 2:18-cv-00254-WSS (W.D. Pa.), the Hon. Judge William S. Stickman entered an order granting the parties' joint motion for ten-day extension of cass certification briefing schedule. The briefing schedule for Plaintiffs' motion for class certification is revised to the following: -- Any motion for class certification Feb. 21, 2022 due by: -- Response to motion due by: March 21 2022 -- Reply brief due by: April 7, 2022 Comprehensive Healthcare is a private company. The company currently specializes in the Hospital & Health Care area. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3sNfISv at no extra charge.[CC] COVANTA PLYMOUTH: Lloyd Bid for Class Certification Nixed --------------------------------------------------------- In the class action lawsuit captioned as HOLLY LLOYD v. COVANTA PLYMOUTH RENEWABLE ENERGY, LLC, Case No. 2:20-cv-04330-HB (E.D. Pa.), the Hon. Judge Harvey Bartle III entered an order denying the motion of plaintiff for class certification. Covanta Plymouth was founded in 2009. The company's line of business includes the collection and disposal of refuse systems. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3uXUfJs at no extra charge.[CC] CRST INT'L: Cervantes Seeks Class Cert. Briefing Deadline Extension ------------------------------------------------------------------- In the class action lawsuit captioned as ANTHONY CERVANTES and MIKE CROSS, on behalf of themselves and all others similarly situated, v. CRST INTERNATIONAL, INC., and CRST EXPEDITED, INC., Case No. 1:20-cv-00075-CJW-KEM (N.D. Iowa), the Plaintiffs ask the Court to enter an order extending briefing deadlines for motion for Rule 23 Class Certification. The Plaintiffs request a one-week extension to the deadline for their Reply in support of their motion for class certification pursuant to Fed. R Civ. P. 23, from February 18 to February 25, 2022. The reason for the request is that Plaintiffs' Counsel office was the center of the recent ice storm in the Hudson Valley in New York. 1 The storm forced the offices to close on Friday, February 4, the date that Defendants' opposition arrived, and most of our staff was without electricity for the entire weekend and some into Monday. Even as power has been restored, there have been myriad related issues to address. Defendants consent to the extension. The Plaintiffs filed their motion for class certification on December 16, 2021, and Defendants filed a response on February 7, 2022 The Plaintiffs' reply is currently due on February 18, 2022. The deadlines for the class certification motion have been changed twice: once at Plaintiffs' request and once Defendants' request. The other existing court-imposed deadlines in this case are -- Fact discovery completion: April 30, 2022 -- Affirmative expert disclosures: April 8, 2022 -- Rebuttal expert disclosures: June 8, 2022 -- Expert discovery completion: June 24, 2022 -- The Defendants' decertification May 27, 2022 motion deadline: -- The Plaintiffs' decertification June 24, 2022 response deadline: -- The Defendants' decertification July 8, 2022 reply deadline: -- Dispositive motion deadline: May 6, 2022 -- Trial ready date: Oct. 3, 2022 CRST provides transportation and logistics solutions. A copy of the Plaintiffs' motion dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3gPzYNX at no extra charge.[CC] The Plaintiffs are represented by: Michael J.D. Sweeney, Esq. GETMAN, SWEENEY & DUNN PLLC 260 Fair Street Kingston, NY 12401 Telephone: (845) 255-9370 E-mail: msweeney@getmansweeney.com CVS HEALTH: Unredacted Version of Renewed Class Cert Bid Sealed --------------------------------------------------------------- In the class action lawsuit captioned as JOSEPH MIER, individually and on behalf of all others similarly situated, v. CVS HEALTH, a Rhode Island limited liability company; and DOES 1 to 100, inclusive, Case No. 8:20-cv-01979-DOC-ADS (C.D. Cal.), the Hon. Judge David O. Carter entered an order granting plaintiff Joseph Mier's application to seal his unredacted renewed motion for class certification and for appointment of class counsel. CVS Health is an American healthcare company that owns CVS Pharmacy, a retail pharmacy chain; CVS Caremark, a pharmacy benefits manager; and Aetna, a health insurance provider, among many other brands. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3rV60hG at no extra charge.[CC] DELOITTE & TOUCHE: Liable to Stockholders' Losses, Formby Claims ---------------------------------------------------------------- ROBERT (BOB) FORMBY, individually and on behalf of all others similarly situated, Plaintiff v. DELOITTE & TOUCHE, LLP and DELOITTE, LLP, Defendants, Case No. 1:22-cv-00670-WMR (N.D. Ga., February 17, 2022) is a class action against the Defendants for violations of Section 10(b) of Securities Exchange Act of 1934 and Section 17(a) of the Securities Act. According to the complaint, the Defendants made materially false statements and representations and omitted material information about the cost and completion date of the Southern Company's electric power plant in Kemper, Mississippi. As a result of the Defendants' misrepresentations and omissions, Southern securities were sold at artificially inflated prices between May 10, 2013 to February 20, 2020, damaging investors. Both Southern and Deloitte knew the billions of dollars Southern spent on construction could never be passed onto the ratepayers, due to the project delays, cost overruns, and ultimate failure of the project. By the time Southern finally disclosed the full extent of its losses related to the Kemper plant and Deloitte's fraud was revealed, Southern's shareholders had suffered billions in losses, says the suit. Deloitte & Touche, LLP is an accounting services company based in New York, New York. Deloitte, LLP is a provider of tax, consulting, and financial advisory services, headquartered in New York, New York. [BN] The Plaintiff is represented by: C. Mark Warren, Esq. John McCown, Esq. WARREN & GRIFFIN, PC 300 West Emery, Suite 108 Dalton, GA 30720 Telephone: (706) 529-4878 E-mail: cmark@warrenandgirffin.com john.mccown@warrenandgriffin.com - and – Gordon Ball, Esq. GORDON BALL, PLLC 3728 West End Avenue Nashville, TN 37205 Telephone: (865) 525-7028 E-mail: gball@gordonball.com - and – Thomas H. Bienert, Jr., Esq. Alexis Federico, Esq. BIENERT, KATZMAN, LITTRELL, WILLIAMS 903 Calle Amanecer, Suite 350 San Clemente, CA 92673 Telephone: (949) 369-3700 E-mail: tbienert@bklwlaw.com DENTAL EQUITIES: Review of Class Certification in Scoma Suit Nixed ------------------------------------------------------------------ In the case, SCOMA CHIROPRACTIC, P.A., a Florida corporation, FLORENCE MUSSAT M.D., S.C., an Illinois service corporation, and WILLIAM P. GRESS, an Illinois resident, individually and as the representatives of a class of similarly-situated persons, Plaintiffs v. DENTAL EQUITIES, LLC, FIRST ARKANSAS BANK & TRUST, MASTERCARD INTERNATIONAL INCORPORATED, a Delaware corporation, and JOHN DOES 1-10, Defendants, Case No. 2:16-cv-41-JLB-MRM (M.D. Fla.), Judge John L. Badalamenti of the U.S. District Court for the Middle District of Florida, Fort Myers Division, denied Mastercard's motion for reconsideration. Defendant Mastercard International Incorporated ("Mastercard") moves under Federal Rule of Civil Procedure 59(e) for reconsideration of the Court's order granting the Plaintiffs' motion to certify a class of individuals who received unsolicited faxes, purportedly sent from Mastercard, on their respective stand-alone fax machines. I. Background The lawsuit is a junk fax case brought pursuant to the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. Section 227 ("the TCPA"). The Plaintiffs allege that faxes advertising a Mastercard credit card were sent to fax numbers without the recipients' permission and were received on stand-alone fax machines and via an online fax service. They moved to certify a class of all individuals who received the faxes and, alternatively, certification of classes of those who received the fax on a stand-alone machine and those who received the fax via an online fax service. Following extensive briefing and with guidance from the Eleventh Circuit's recent decision in Cherry v. Dometic Corp., 986 F.3d 1296 (11th Cir. 2021), the Court first found it likely that many of the putative class members who received the fax via an online fax service lack Article III standing. Second, the Court determined that the question of whether the TCPA covers receipt of a fax via an online fax service bears on the predominance inquiry under Federal Rule of Civil Procedure 23(b)(3) and must be answered. It next found that receipt of faxes through online fax services is not covered by the TCPA. Accordingly, because individual issues of whether a member received a fax via an online fax service would predominate over any common issues as to the All Fax Recipients Class and individualized issues of Article III standing would predominate as to the putative All Fax Recipients and Online Fax Service Classes, certification of the two classes was inappropriate. As to the Stand-Alone Fax Machine Class, the Court found that certification is appropriate under Rule 23(b)(3) because there are several common issues of fact and law which could be determined class-wide and predominate over individual issues, and a class action would be superior to other methods for adjudicating the controversy. As to Rule 23(b)(3)(D)'s "manageability" factor, any difficulties in identifying membership of the Stand-Alone Fax Machine Class do not outweigh the factors that countenance in favor of class certification. Mastercard now moves for reconsideration under Federal Rule of Civil Procedure 59(e), contending that the Court erred in certifying the class in light of subpoena responses from telephone carriers in a separate case which, Mastercard contends, demonstrate the difficulty of distinguishing between individuals who received the fax on a stand-alone machine and those who received the fax via an online fax service. Second, Mastercard contends the order is inconsistent insofar as it rejected the proposed All Fax Recipients Class based on a lack of predominance due to the required individualized inquiries to determine whether each member received a fax via a stand-alone machine or an online fax service but found that common issues do predominate as to the Stand-Alone Fax Machine Class. The Plaintiffs have responded in opposition. II. Discussion Judge Badalamenti holds that rather than present an intervening change in controlling law, newly discovered evidence, or manifest errors of law or fact, Mastercard seeks merely to relitigate old matters, raise arguments, and present evidence that could have been raised prior to entry of the certification order. Accordingly, Mastercard has not shown that reconsideration of the certification order is warranted. A. Mastercard's reliance on purported "evidence" from other cases is not a basis for reconsideration Mastercard first contends that the Court erred in certifying the Stand-Alone Fax Machine Class in light of subpoena responses from telephone carriers in a separate case, True Health Chiropractic Inc. v. McKesson Corp., No. 13-cv-2219-HSG (N.D. Cal.), which, according to Mastercard, demonstrate the difficulty of distinguishing between individuals who received the fax on a stand-alone machine and those who received the fax via an online fax service. Judge Badalamenti finds that it is not a basis for reconsideration for several reasons. First, the subpoena responses in McKesson do not constitute "newly discovered evidence." Second, even assuming the subpoena responses constitute newly discovered evidence, Mastercard relies on the subpoena responses merely to "reiterate arguments previously made" and rejected by the Court, namely that there will be difficulties in distinguishing between individuals who received the fax on a stand-alone fax machine and via an online fax service. See Burger King Corp. v. Ashland Equities, Inc., 181 F.Supp.2d 1366, 1369 (S.D. Fla. 2002). Mastercard extensively briefed this. In sum, Mastercard has not identified newly discovered evidence that supports reconsideration of the certification order. B. Mastercard's contention that the certification order is inconsistent is not a basis for reconsideration Mastercard next contends the order is inconsistent insofar as it rejected the proposed All Fax Recipients Class based on a lack of predominance due to the required individualized inquiries to determine whether each class member received a fax via a stand-alone machine or online fax service but found that common issues do predominate as to the Stand-Alone Fax Machine Class. Again, it seeks to relitigate an issue that was previously raised and considered, which is an inappropriate basis for relief on a motion for reconsideration. Although Mastercard again reiterates difficulties in identifying the class as it relates to predominance, this is not a basis for reconsideration. As noted, this issue was raised and fully considered by the Court. Further, although Mastercard asserts that the court in McKesson evaluated these difficulties in the context of predominance, the Eleventh Circuit has explained that "aside from its limited relevance to Rule 23(b)(3)(D), administrative feasibility is entirely unrelated to either Rule 23(a) or (b)." Cherry, 986 F.3d at 1304. This Court evaluated the issue of administrative feasibility under Rule 23(b)(3)(D) and concluded that "any difficulties in identifying membership of the Stand-Alone Fax Machine Class do not outweigh the factors that countenance in favor of class certification." (Doc. 188 at 23-24; see also Doc. 188 at 26, 28.) Indeed, "[a]dministrative feasibility alone will rarely, if ever, be dispositive," and the Court retains the "discretion to decertify a certified class that turns out to be unmanageable." III. Conclusion Accordingly, absent a basis for reconsideration, Judge Badalamenti denied Mastercard's Motion for Reconsideration of Order Granting in Part and Denying in Part Plaintiffs' Second Amended Motion for Class Certification and its Motion for Leave to Submit a Reply. He denied as moot Mastercard's Motion for Additional Time to File Reply. Following conferral with defense counsel and within 21 days from the date of the Order, the Plaintiffs will file a proposed form and method of dissemination of notice as to the certified Stand-Alone Fax Machine Class. A full-text copy of the Court's Feb. 9, 2022 Order is available at https://tinyurl.com/584aaubt from Leagle.com. DIGNITY HEALTH: Class Certification Hearing Continued to March 8 ---------------------------------------------------------------- In the class action lawsuit captioned as TOMERY DARLING and ANA JARA, on behalf of themselves and all other similarly situated individuals, v. DIGNITY HEALTH; DIGNITY COMMUNITY CARE; DIGNITY HEALTH MEDICAL GROUP NEVADA, LLC; and DOES 1 through 50, inclusive, Case No. 4:20-cv-06043-YGR (N.D. Cal.), the Hon. Judge Yvonne Gonzalez Rogers entered an order that the hearing on the motion for class certification under Federal Rule of Civil Procedure 23 set for February 22, 2022, at 2:00 p.m. is continued to March 8, 2022, at 2:00 p.m. Dignity Health is a California-based not-for-profit public-benefit corporation that operates hospitals and ancillary care facilities in three states. Dignity Health is the fifth-largest hospital system in the nation and the largest not-for-profit hospital provider in California. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/36nyvMP at no extra charge.[CC] The Plaintiff is represented by: Mark R. Thierman, Esq. Joshua D. Buck, Esq. Leah L. Jones, Esq. Joshua R. Hendrickson, Esq. THIERMAN BUCK LLP 7287 Lakeside Drive Reno, NV 89511 Telephone: (775) 284-1500 Facsimile: (775) 703-5027 E-mail: mark@thiermanbuck.com josh@thiermanbuck.com leah@thiermanbuck.com joshh@thiermanbuck.com The Defendants are represented by: Richard J. Simmons, Esq. Daniel J. McQueen, Esq. Nora K. Stilestein, Esq. Tyler J. Johnson, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1422 Telephone: (213) 620-1780 Facsimile: (213) 620-1398 E-mail: rsimmons@sheppardmullin.com dmqueen@sheppardmullin.com nstilestein@sheppardmullin.com tjjohnson@sheppardmullin.com DNC PARKS: Court Narrows Claims in Perez Class Suit --------------------------------------------------- In the class action lawsuit captioned as DAVID PEREZ v. DNC PARKS & RESORTS AT ASILOMAR, INC., et al., Case No. 1:19-cv-00484-DAD-SAB (E.D. Cal.), the Hon. Judge Dale A. Drozd entered an order granting in part defendants' motion to dismiss and denying defendants' motion to strike as follows: 1. Defendants' motion to dismiss is granted, in part: a. The Plaintiffs' third, fourth, fifth, and eighth claims are dismissed, without further leave to amend; b. The Defendants' motion to dismiss plaintiffs' first, second, sixth, and seventh claims is denied; and c. The following defendants are dismissed from this action: i. Delaware North Companies Parks & Resorts, Inc.; ii. DNC Parks & Resorts at Sequoia; and iii. DNC Parks & Resorts at Yosemite, Inc. 2. The Defendants motion to strike is denied. 3. The remaining defendants shall file their answer to the remaining claims asserted by plaintiffs in their second amended complaint within 21 days of service of this order. 4. The Clerk of the Court is directed to update the docket to reflect that the following defendants have been terminated from this action as named defendants: i. Delaware North Companies Parks & Resorts, Inc.; ii. DNC Parks & Resorts at Sequoia; and iii. DNC Parks & Resorts at Yosemite, Inc. 5. The Clerk of the Court is also directed to correct the docket to reflect that defendant DNC Parks & Resorts at Asilomar, Inc. was dismissed from this action on October 30, 2019 and had been terminated as a named defendants in this action. 6. The Clerk of the Court is also directed to correct the docket to reflect that plaintiff Maria Socorro Vega was added as a named plaintiff in this action on November 14, 2019, when plaintiffs filed their first amended complaint. The Defendants first argue that plaintiffs have not sufficiently pled joint employer allegations under state or federal law to hold defendants Parks & Resorts, Sequoia, Yosemite, and Delaware North liable with respect to their wage and hours claims and, accordingly, the court should dismiss these defendants from this action. This matter arises from the plaintiff David Perez's putative class action lawsuit alleging various wage-and-hour violations by defendants. The case was originally filed by plaintiff in Tulare County Superior Court, but defendants removed the action to this federal court on April 12, 2019. On October 30, 2019, the court granted defendants' motion for judgment on the pleadings and dismissed plaintiff's complaint, but granted plaintiff leave to amend to file a first amended complaint addressing the deficiencies identified by the court. On November 14, 2019, plaintiffs Perez and Vega filed their first amended complaint (FAC), which defendants moved to dismiss and strike. On July 29, 15 2020, the court granted defendants' motion to dismiss in part and denied their motion to strike as moot. On August 14, 2020, plaintiffs filed the operative second amended complaint (SAC). In their SAC plaintiffs assert the following claims: (1) failure to provide required meal breaks; (2) failure to provide required rest breaks; (3) failure to pay overtime wages; (4) failure to pay minimum wages; (5) failure to furnish accurate itemized wage statements; (6) unfair and unlawful business practices under California's Unfair Competition Law (UCL); (7) penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA), as a representative action; and (8) failure to pay all wages and overtime compensation in violation of the Fair Labor Standards Act (FLSA). On August 26, 2020, defendants moved to dismiss and strike the SAC, arguing that plaintiffs' allegations fail to cure the pleading deficiencies previously identified by the court and that the granting of further leave to amend is not warranted. On September 22, 2020, plaintiffs filed their oppositions to the pending motions, contending that they had satisfied this court's prior directives. Alternatively, plaintiffs request the granting of yet further leave to amend if the SAC "inadvertently includes inconsistencies that can be corrected." On September 29, 2020, defendants filed their replies to plaintiffs' oppositions. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3sQJIwG at no extra charge.[CC] EAGLE BANCORP: Class Action Settlement OK'd in Stein Class Suit --------------------------------------------------------------- In the class action lawsuit captioned as SHIVA STEIN, Individually and On Behalf of All Others Similarly Situated, v. EAGLE BANCORP, INC., SUSAN G. RIEL, RONALD D. PAUL, CHARLES D. LEVINGSTON, JAMES H. LANGMEAD, and LAURENCE E. BENSIGNOR, Case No. 1:19-cv-06873-LGS (S.D.N.Y.), the Hon. Judge Lorna G. Schofield entered a judgment approving class action settlement as follows: -- Class Certification for Settlement Purposes The Court hereby affirms its determinations in the Preliminary Approval Order certifying, for the purposes of the Settlement only, the Action as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure on behalf of the Settlement Class consisting of: "all persons and entities who or which purchased or otherwise acquired Eagle Common Stock and/or Eagle Call Options, or wrote Eagle Put Options, between March 2, 2015 and July 17, 2019, inclusive (the “Settlement Class Period”), and were damaged thereby." Excluded from the Settlement Class are: (1) persons who suffered no compensable losses; and (2) (a) Defendants; (b) the legal representatives, heirs, successors, assigns and members of the Immediate Families of the Individual Defendants; (c) the parents, subsidiaries, assigns, successors, predecessors and affiliates of Eagle; (d) any persons who served as officers and/or directors of Eagle during the Settlement Class Period; (e) any entity in which any of the foregoing (a) -- (d) excluded persons have or had a majority ownership interest during the Settlement Class Period; (f) any trust of which any Individual the Defendants is the grantor or settlor or which is for the benefit of any Individual Defendant and/or member(s) of his or her Immediate Family; and (g) Defendants' liability insurance carriers. -- Final Settlement Approval and Dismissal of Claims Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court hereby fully and finally approves the Settlement set forth in the Stipulation in all respects (including, without limitation: the amount of the Settlement; the Releases provided for therein; and the dismissal with prejudice of the claims asserted against Defendants in the Action), and finds that the Settlement is, in all respects, fair, reasonable and adequate to the Settlement Class. -- Retention of Jurisdiction Without affecting the finality of this Judgment in any way, this Court retains continuing and exclusive jurisdiction over: (a) the Parties for purposes of the administration, interpretation, implementation and enforcement of the Settlement; (b) the disposition of the Settlement Fund; (c) any motion for an award of attorneys' fees and/or Litigation Expenses by Lead Counsel in the Action that will be paid from the Settlement Fund; (d) any motion to approve the Plan of Allocation; (e) any motion to approve the Class Distribution Order; and (f) the Settlement Class Members for all matters relating to the Action. Eagle Bancorp is the holding company for EagleBank which commenced operations in 1998. The Bank is headquartered in Bethesda, Maryland, and conducts full service commercial banking through eighteen offices, located in Montgomery County, Maryland, Washington, D.C. and Northern Virginia. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3LGBi3O at no extra charge.[CC] EHANG HOLDINGS: Sergiu Rata Appointed as Lead Plaintiff ------------------------------------------------------- In the class action lawsuit captioned as EYOBE AMBERBER, individually and on behalf of : others similarly situated, v. EHANG HOLDINGS LIMITED, HUAZHI HU, RICHARD JIAN LIU, AND EDWARD HUAXIANG XU, Case No. 1:21-cv-01392-GBD-GWG (S.D.N.Y.), the Hon. Judge George B. Daniels entered an order: 1. denying Timo Rautanen's motion for appointment as lead plaintiff and approval of lead counsel; 2. granting Sergiu Rata's motion for appointment as lead plaintiff and approval of Block & Leviton LLP as lead counsel. Before this Court are three securities fraud class action suits against EHang Holdings Limited, Huazhu Hu, Richard Jian Liu, and Edward Huaxiang Xu. The Plaintiffs in all three cases purchased shares of EHang and allege that Defendants made materially false and misleading statements about the business and prospects of EHang's autonomous aerial vehicle technology platform company. Putative class members Timo Rautanen and Sergiu Rata both filed motions for appointment as lead plaintiff and to appoint their attorneys as lead counsel. The Plaintiffs allege that analyst, Wolfpack Research, published a report on February 16, 2021, entitled "EHang: A Stock Promotion Destined to Crash and Burn" which stated, among other points, that EHang is "an elaborate stock promotion, built on largely fabricated revenues based on sham sales contracts with a customer who appears to us to be more interested in helping inflate the value of its investment in EH than about buying its products." The report stated that Wolfpack Research had "gathered extensive evidence" to support its report, "including behind-the-scenes photographs, recorded phone calls, and videos of on-site visits to EH's various facilities." Wolfpack Research also noted that "in just 14 months as a publicly-traded company, EH's PR team has put out 50 press releases. However, EH's constant stream of press releases are easily proven untrue." Finally, Wolfpack Research wrote that it "obtained Chinese court records which show that EH's [shares] may already be in serious jeopardy due to legal issues in China." The Plaintiffs assert that after the Wolfpack report was released, EHang stock price fell from its February 12, 2021 close of $124.09 to a February 16, 2021 close of $46.30 per share -- a one day drop of $77.79 per share or approximately 62.7%. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/33vHPx4 at no extra charge.[CC] FAMILY SOLUTIONS: Can't File Interlocutory Appeal in Stephenson --------------------------------------------------------------- In the case, Jamal Stephenson, et al., On behalf of himself and All others similarly situated, Plaintiffs v. Family Solutions of Ohio, Inc., et al., Defendants, Case No. 1:18cv2017 (N.D. Ohio), Judge Pamela A. Barker of the U.S. District Court for the Northern District of Ohio denied Defendants Family Solutions of Ohio, Inc., Prostar Management, Inc., John Hopkins, and Dawn Smith's Motion for Certification to File Interlocutory Appeal. I. Background On Sept. 4, 2018, Plaintiff Alicia Arends filed a Complaint in the Court on behalf of herself and all others similarly situated against Defendants Family Solutions of Ohio, Inc., Prostar Management, Inc., John Hopkins, and Dawn Smith. Therein, the Plaintiff asserted that she and the putative class members were employed by the Defendants as Qualified Mental Health Specialists ("QMHS") and that the Defendants had failed to pay them for time worked that was not billable to Medicaid or other health insurance. The Plaintiff alleged the following six claims for relief: (1) violations of the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 216(b) (Count One); (2) violations of the Ohio Fair Minimum Wage Amendment ("OFMWA"), Ohio Constitution, Art. II, Section 34a (Count Two); (3) violations of Ohio's overtime compensation statute, Ohio Rev. Code Section 4111.03 (Count Three); (4) violations of the OFMWA's record-keeping requirement (Count Four); (5) breach of contract (Count Five); and (6) unjust enrichment (Count Six). The Plaintiff sought conditional certification as a FLSA collective action; certification of the state law claims under Fed. R. Civ. P. 23; compensatory and punitive damages; and attorney fees and costs. On March 4, 2019, Jamal Stephenson filed an Opt-In and Consent Form. Meanwhile, on Feb. 28, 2019, the Plaintiffs filed a Motion for Conditional Certification and Court-Authorized Notice with respect to their FLSA claims. They sought conditional certification with respect to "all hourly employees who worked as providers for Family Solutions of Ohio during the three years preceding the commencement of this action to the present." On Sept. 16, 2019, the Court issued a Memorandum Opinion & Order granting Plaintiffs' Motion for Conditional Certification with respect to all current and former employees who worked as QMHSs between Sept. 16, 2016 and Sept. 16, 2019. A Case Management Conference ("CMC") was conducted on Oct. 7, 2019, at which time the Court approved the parties' proposed Notice. It did not set a specific deadline for filing a motion for certification of a state law class under Fed. R. Civ. P. 23. The docket reflects that FLSA consent forms were filed by 24 opt-in plaintiffs between October and December 2019. On May 5, 2020, the Plaintiffs filed an Amended Class and Collective Action Complaint, designating Plaintiffs Stephenson and Melanie Vilk Baron as the representative plaintiffs. The Amended Complaint raises the same factual and class allegations and asserts the same six grounds for relief set forth in the original Complaint. The Defendants filed an Answer on May 19, 2020. In accordance with the Court's scheduling Order, the Plaintiffs filed their Motion for Rule 23 Class Certification on July 31, 2020 and the Defendants timely filed Motions for Summary Judgment with respect to all claims asserted by Ms. Vilk Baron and Mr. Stephenson on Sept. 1, 2020. The Court conducted a telephonic status conference with lead counsel on Jan. 8, 2021. At that time, the counsel for the Plaintiffs specifically asked the Court not to rule on the Plaintiffs' Motion for Rule 23 Certification until after a ruling on the pending summary judgment motions. The Defendants did not object. In addition, the counsel for both parties sought, and the Court granted, an indefinite stay of expert discovery. On March 2, 2021, the Court issued a Memorandum Opinion & Order in which it denied the Defendants' Motions for Summary Judgment as to Plaintiff Baron's and Stephenson's FLSA and state law wage-and-hour claims. It denied the Defendants' Motion for Summary Judgment with respect to the issue of damages without prejudice subject to refiling after the close of expert discovery. As the Plaintiffs had not had an opportunity to respond to the Defendants' arguments regarding the impact, if any, of Dr. Thompson's expert report on the parties' arguments relating to Rule 23 certification, the Court ordered the parties to submit simultaneous supplemental briefing. The parties submitted their Supplemental Briefing on March 26, 2021. On April 5, 2021, the Court issued a Memorandum Opinion & Order granting in part and denying in part the Plaintiffs' Motion for Rule 23 Certification of a state law class. Therein, the Court began by denying the Plaintiffs' Motion to the extent the putative class included hourly Therapists and a class-based breach of contract claim. Having thus narrowed the state law class, the Court proceeded to consider whether to exercise supplemental jurisdiction over the Plaintiffs' remaining state class claims. After a lengthy analysis, it concluded that "considerations of judicial economy, convenience, and fairness weigh in favor of exercising supplemental jurisdiction over the Plaintiffs' state law claims." Shortly after issuing its Rule 23 ruling, the Court conducted a status conference with the counsel, at which time it set case management deadlines relating to the Rule 23 class members, including deadlines for the submission of a joint proposed Notice, completion of representative fact discovery, completion of expert discovery, and submission of motions based on the same. On April 19, 2021, the Defendants filed a Notice of Interlocutory Appeal to the Sixth Circuit from the Court's decision granting in part and denying in part the Plaintiffs' Motion for Rule 23 Certification. Several months later, on July 13, 2021, the Defendants filed a Motion for Certification to File Interlocutory Appeal in the Court pursuant to 28 U.S.C. Section 1292(b). The Plaintiffs opposed the Motion, and the Defendants filed a Reply. The Defendants also filed a Motion for Sanctions based on the Plaintiffs' alleged failure to timely produce evidence of damages. While the Defendants' Motions were pending, the parties filed a Joint Motion for Referral to Mediation and to Extend Deadlines he Court granted the Motion, referred the matter to Magistrate Judge William Baughman for mediation proceedings, and extended the remaining case management deadlines. After conducting mediation sessions on Nov. 9, 2021 and Dec. 13, 2021, the Magistrate Judge reported that the parties were unable to reach a resolution. The Court conducted a status conference with the counsel on Dec. 15, 2021, at which time the parties jointly requested that the case schedule be extended by another 60 days. The Court granted the parties' request and set a Final Pretrial for Nov. 21, 2022, and a Trial date of Dec. 5, 2022. Subsequently, on Jan. 31, 2022, the Court denied the Defendants' Motion for Sanctions II. Analysis The Defendants ask the Court "pursuant to 28 U.S.C. Section 1292(b) to modify, amend, or otherwise certify for appeal" its April 5, 2021 Memorandum Opinion & Order granting in part and denying in part the Plaintiffs' Motion for Rule 23 Certification. They argue that that "there are several controlling questions of law" on which a substantial difference of opinion exists. While the Defendants do not clearly identify the specific legal questions that they believe warrant certification to the Sixth Circuit, the Court interprets the Defendants' Motion as generally requesting certification of the Court's (1) decision to exercise supplemental jurisdiction over the Plaintiffs' state law claims under the particular circumstances of the case; and (2) finding that Rule 23's commonality and superiority requirements are met. The Defendants maintain that an immediate appeal of these issues would materially advance the ultimate termination of the litigation because "the Rule 23 Order has resulted in at least eighteen more months of litigation" and "this is a standard case that will likely remain pending for four years before the Sixth Circuit's review if this interlocutory appeal is not granted." The Plaintiffs argue that the Defendants' Motion should be denied for several reasons. The Plaintiffs first assert that, because the class certification orders are discretionary, they do not generally involve a "controlling question of law" for purposes of Section 1292(b). They next argue that the Defendants have failed to articulate a "controlling question of law," either with respect to supplemental jurisdiction or class certification. Finally, the Plaintiffs argue that an interlocutory appeal would not materially advance the ultimate termination of the litigation but, rather, would "most assuredly delay the trial." Judge Barker addresses the parties' arguments in the context of the Section 1292(b) requirements. A. Controlling Questions of Law about which there Exist a Substantial Difference of Opinion First, Judge Barker finds that the Defendants have not demonstrated that the Court's decision to exercise supplemental jurisdiction over the Plaintiffs' state law claim constitutes "a controlling question of law about which there exists a substantial difference of opinion," for purposes of Section 1292(b). Second, she finds that the Defendants have not demonstrated that the Court's findings regarding the commonality and superiority requirements of Rule 23 constitute "controlling questions of law about which there exists a substantial difference of opinion," for purposes of Section 1292(b). B. Materially Advance the Termination of the Litigation First, Judge Barker finds that interlocutory appeal would not materially advance the termination of the instant litigation. It would be a waste of judicial resources to certify interlocutory appeal of an issue that has the potential to be moot should the Defendants move to decertify the Rule 23 class. Second, Judge baker opines that even if the Sixth Circuit were to reverse the Court's decisions to either exercise supplemental jurisdiction over the Plaintiffs' state law claims and/or to certify a state law class under Rule 23, the Plaintiffs' FLSA collective action claims would still remain for resolution. Accordingly, the Defendants have not demonstrated that interlocutory appeal would materially advance the termination of the litigation. III. Conclusion Having considered each of the factors set forth in Section 1292(b), Judge Barker finds that the Defendants have not met their burden of demonstrating that an interlocutory appeal is justified. The Defendants' Motion for Certification to File Interlocutory Appeal is, therefore, denied. A full-text copy of the Court's Feb. 9, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/4ckfvn5t from Leagle.com. FLEX LTD: Dismissal of California Securities Class Suit Upheld -------------------------------------------------------------- Flex Ltd. disclosed in its Quarterly Report on Form 10-Q for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 4, 2022, that the Court of Appeals affirmed the dismissal with prejudice of a putative class action filed in California which took effect on January 12, 2022. On May 8, 2018, a putative class action was filed in the Northern District of California against the Company and certain officers alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5, promulgated thereunder, alleging misstatements and/or omissions in certain of the company's financial results, press releases and SEC filings made during the putative class period of January 26, 2017 through April 26, 2018. On October 1, 2018, the Court appointed lead plaintiff and lead plaintiff's counsel in the case. On November 28, 2018, lead plaintiff filed an amended complaint alleging misstatements and/or omissions in certain of the company's SEC filings, press releases, earnings calls, and analyst and investor conferences and expanding the putative class period through October 25, 2018. On April 3, 2019, the court vacated its prior order appointing lead plaintiff and lead plaintiff's counsel and reopened the lead plaintiff appointment process. On September 26, 2019, the Court appointed a new lead plaintiff, National Elevator Industry Pension Fund, and lead plaintiff's counsel in the case. On November 8, 2019, lead plaintiff filed a further amended complaint. On December 4, 2019, defendants filed a motion to dismiss the amended complaint. On May 29, 2020, the Court granted defendants' motion to dismiss without prejudice and gave lead plaintiff 30 days to amend. On June 29, 2020, lead plaintiff filed a further amended complaint. On July 27, 2020, defendants filed a motion to dismiss the amended complaint. On December 10, 2020, the Court granted defendants' motion to dismiss with prejudice and entered judgment in favor of defendants. On January 7, 2021, lead plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals. On May 19, 2021, lead plaintiff filed its opening appeal brief, on July 19, 2021, defendants filed their answering brief, and on September 8, 2021, lead plaintiff filed its reply brief. The Court of Appeals heard oral argument on December 8, 2021. On December 21, 2021, the Court of Appeals affirmed the dismissal with prejudice of the case. The Court of Appeals' decision took effect on January 12, 2022. Flex Ltd. is into printed circuit boards based in Singapore. FOUNDATION ENERGY: May 27 Extension for Class Cert Filing Sought ---------------------------------------------------------------- In the class action lawsuit captioned as HERITAGE ROYALTY OIL & GAS, LLC, on behalf of itself and all others similarly situated, v. FOUNDATION ENERGY MANAGEMENT, LLC (including affiliated predecessors & successors), Case No. 1:20-cv-03753-DDD-NRN (D. Colo.), the Plaintiff asks the Court to enter an order: 1. staying consideration of Defendant's Motion for Summary Judgment and Plaintiff's Motion to Strike in light of mediation to take place between the Parties in April 2022; and 2. granting the Plaintiff an extension to file its Motion for Class Certification, from March 1, 2022, to May 27, 2022 (setting Plaintiff’s class certification motion to March 1, 2022). The Plaintiff's counsel certifies that they conferred in good faith with Defendant's counsel regarding the relief sought by this motion. The Defendant does not oppose the relief sought herein. The Defendant filed its motion for summary judgment on November 29, 2021. The Plaintiff filed its motion to strike Defendant's motion for summary judgment on January 6, 2022. The Defendant filed its response to Plaintiff’s motion to strike on January 21, 2022. A copy of the Plaintiff's motion to certify class dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/36b5wLW at no extra charge.[CC] The Plaintiff is represented by: Rex A. Sharp, Esq. W. Greg Wright, Esq. Scott B. Goodger, Esq. SHARP LAW, LLP 4820 W. 75 th Street Prairie Village, KS 66208 Telephone: (913) 901-0505 Facsimile: (913) 222-2512 E-mail: rsharp@midwest-law.com gwright@midwest-law.com sgoodger@midwest-law.com FOUR SEASONS: Faces Gonzalez Wage-and-Hour Suit in E.D.N.Y. ----------------------------------------------------------- LUIS LOPEZ GONZALEZ, individually and on behalf of all others similarly situated, Plaintiff v. FOUR SEASONS ROOFING, INC. and WILLIAM TAYLOR, JR., Defendants, Case No. 2:22-cv-00883 (E.D.N.Y., February 17, 2022) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay overtime wages, failure to provide accurate wage notice, and failure to provide accurate wage statements. The Plaintiff was employed by the Defendants as a general laborer, roofer and helper from January 2021 until October 2021. Four Seasons Roofing, Inc., is a roofing company, with a principal executive office located at 90 Florida St., Farmingdale, New York. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 GOOGLE LLC: Stipulation Extending Deadline to File Reply Filed -------------------------------------------------------------- In the class action lawsuit captioned as PATRICK CALHOUN, et al., on behalf of themselves and all others similarly situated, v. GOOGLE LLC, Case No. 4:20-cv-05146-YGR (N.D. Cal.), the Parties stipulate, subject to Court approval as follows: 1. The deadline for Plaintiffs to file their Reply in Further Support of their Motion for Class Certification (and related briefing, including oppositions to Google's prior Motions to Strike Plaintiff Expert Reports in Support of Clas Certification) shall be two business days after final transcripts of the depositions of the three Google Declarants are transmitted to the parties. 2. The deadline for Google to file its Reply to Plaintiffs' oppositions to Google's prior Motions to Strike Plaintiff Expert Reports in Support of Class Certification shall be four weeks after Plaintiffs file their oppositions. 3. Google expert reports shall be five weeks after Plaintiffs file such motions. The deadline for Google to file its Opposition to any motions by Plaintiffs to strike 4. The deadline for Plaintiffs to file their Reply to Google's Opposition to any Plaintiff motion to strike Google expert reports shall be three weeks after Google files such Opposition. 5. The hearing on Plaintiffs' motion for class certification shall remain calendared for April 21, 2022. Google LLC is an American multinational technology company that specializes in Internet-related services and products, which include online advertising technologies, a search engine, cloud computing, software, and hardware. A copy of the Parties' motion dated Feb. 9, 2021 is available from PacerMonitor.com at https://bit.ly/3LzL9bp at no extra charge.[CC] The Plaintiffs are represented by: Lesley Weaver, Esq. Angelica M. Ornelas, Esq. Joshua D. Samra, Esq. BLEICHMAR FONTI & AULD LLP 555 12th Street, Suite 1600 Oakland, CA 94607 Telephone: (415) 445-4003 Facsimile: (415) 445-4020 E-mail: lweaver@bfalaw.com - and - David A. Straite, Esq. Amy E. Keller, Esq. Adam Prom, Esq. Sharon Cruz, Esq. DiCELLO LEVITT GUTZLER LLC 60 East 42nd Street, Suite 2400 New York, NY 10165 Telephone: (646) 933-1000 E-mail: dstraite@dicellolevitt.com akeller@dicellolevitt.com - and - Jason Barnes, Esq. An Truong, Esq. SIMMONS HANLY CONROY LLC 112 Madison Avenue, 7th Floor New York, NY 10016 Telephone: (212) 784-6400 Facsimile: (212) 213-5949 The Defendant is represented by: Andrew H. Schapiro, Esq. Diane M. Doolittle, Esq. Stephen A. Broome, Esq. Viola Trebicka, Esq. Jomaire Crawford, Esq. Josef Ansorge, Esq. Jonathan Tse, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 191 N. Wacker Drive, Suite 2700 Chicago, IL 60606 Telephone: (312) 705-7400 Facsimile: (312) 705-7401 E-mail: andrewschapiro@quinnemanuel.com dianedoolittle@quinnemanuel.com stephenbroome@quinnemanuel.com violatrebicka@quinnemanuel.com jomairecrawford@quinnemanuel.com josefansorge@quinnemanuel.com jonathantse@quinnemanuel.com GT MARKETING: Loses Bid to Dismiss Pastore Suit ----------------------------------------------- In the class action lawsuit captioned as JONATHAN A. PASTORE v. GT MARKETING GROUP USA, INC., Case No. 6:21-cv-1483-PGB-DCI (M.D. Fla.), the Hon. Judge Paul G. Byron entered an order denying the Defendant's motion to dismiss for failure to state a claim. The Court finds that Plaintiff put forward sufficient facts to allege a plausible claim for relief against Defendant. To state a claim for relief under the TCPA for Count I, Plaintiff must demonstrate the Defendant initiated a non-emergency telephone call to any residential telephone line, including cell phone numbers, using a prerecorded voice, without the prior consent of the called party. Undeterred, the Defendant argues that Plaintiff's only alleged connection between Defendant and the calls in the First Amended Complaint -- the credit card charges attributable to Eccentry Holidays -- is conclusory and need not be accepted as true by the Court because Plaintiff pleads it "upon information and belief." This dispute flows from unwanted, prerecorded telephone calls that marketed vacations. The Plaintiff Jonathan Pastore is on the national Do-Not-Call List. He alleges that the Defendant, or its agents, called him without his consent on at least three occasions in early 2021. Upon picking up the phone each time, a prerecorded voice message informed him he had won a complementary stay with a hotel, prompting him to press one to speak with an agent. After doing so, Plaintiff provided a credit card number to the representative with whom he spoke, and then Defendant or its agents attempted to charge this credit card number on the specific dates when he provided the information. He alleges those attempted credit card charges are attributable to Eccentry Holidays, a tradename under which Defendant does business. The Plaintiff then brought claims against Defendant, directly or through its agents, alleging two violations of the Telephone Consumer Protection Act (the TCPA): 1) a violation of 47 U.S.C. section 227(b)(1)(B), which relevantly prohibits prerecorded, non-emergency telephone calls made without the callee’s consent; and 2) a violation of TCPA-implementing regulation 47 C.F.R. section 64.1200(c), which prohibits initiating solicitation calls to telephone numbers that have been placed on the national Do-Not-Call registry by their owners. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3I26NmE at no extra charge.[CC] HALSTED FINANCIAL: Wins Bid to Compel Arbitration in Shaffer Suit ----------------------------------------------------------------- In the case, Ashton Shaffer, Plaintiff v. Halsted Financial Services, LLC, et al., Defendants, Case No. 3:21 CV 1849 (N.D. Ohio), Judge Jack Zouhary of the U.S. District Court for the Northern District of Ohio, Western Division: (i) denied Shaffer's Motion to Depose Patricia Sexton; and (ii) granted the Defendants' Motion to Compel Arbitration. I. Introduction Plaintiff Shaffer, individually and on behalf of those similarly situated, brought the class action against Defendants Halsted, Resurgent Receivables, and Brian S. Glass. The Defendants move to compel arbitration; Shaffer opposes, and the Defendants reply. The case was referred to Magistrate Judge Darrell Clay under Local Civil Rule 72.2(b)(2). Magistrate Judge Clay issued a Report and Recommendation ("R&R") recommending the Court grants the Defendants' Motion, and compel arbitration. Shaffer timely objects to the R&R; the Defendants respond. II. Background Shaffer filed a class action in state court asserting violations of the Fair Debt Collection Practices Act ("FDCPA"), the Ohio civil RICO law, and the Ohio Consumer Sales Practices Act ("CSPA"). The Defendants properly removed the matter to the Court in September 2021. In his Complaint, Shaffer alleges he received collection letters from Defendant Halsted, which violated the above statutes, as Halsted was not a legal assignee of the rights to Shaffer's account. Defendants contend Shaffer entered a written arbitration agreement when he opened his account with Credit One Bank and that this agreement was not voided when the account was assigned to a series of other entities. The Defendants support their agreement with a declaration from Sexton, an employee of Defendant Resurgent. In response, Shaffer opposed and moved to depose Sexton, arguing her declaration was defective. The Defendants then filed a revised declaration from Sexton. The R&R concluded Shaffer's claims were meritless. III. Discussion Mr. Shaffer raises three objections to the R&R. First, he claims Sexton's declaration improperly refers to non-produced documents in an attempt to establish Defendant Halsted is the legal owner of Shaffer's credit-card debt. Shaffer also suggests that because Sexton does not attach all the "non produced, critically important, and easily obtainable documents" she reviewed, her declaration should be inadmissible. Next, Shaffer argues the Defendants failed to produce a legally sufficient copy of the signed agreement between the parties. Finally, Shaffer reasserts the request to depose Sexton. Judge Zouhary finds that (i) Sexton confirmed Shaffer's account was among those pooled and assigned to Halsted; (ii) tThe R&R correctly concluded Sexton's declaration provides sufficient evidence that Defendant Halsted is the legal owner of Shaffer's credit-card debt; (iii) the R&R correctly concludes "there is a broad, enforceable agreement to arbitrate between Shaffer and Credit One Bank that through valid written assignment now runs in favor of the Defendants in the case; and (iv) the referenced documents have been authenticated by a reliable source, and the Plaintiff offers no reason why a deposition of Sexton would have a material impact on the arbitrability issue. IV. Conclusion Judge Zouhary concludes that the broad arbitration clause between the parties requires "any controverses or disputes arising from or relating to Shaffer's Account; and any transaction involving Shaffer's Account" to be resolved in arbitration. The Sixth Circuit has held "any doubts regarding arbitrational should be resolved in favor of arbitration." Shaffer's Objections are overruled, and Judge Zouhary adopted the R&R in its entirety. Shaffer's Motion to Depose is denied. The Motion to Compel Arbitration is granted. The case is dismissed. A full-text copy of the Court's Feb. 9, 2022 Order is available at https://tinyurl.com/tf5mdmzx from Leagle.com. HARVARD UNIVERSITY: Graduate Student Workers File Title IX Suit --------------------------------------------------------------- Nikita Rumsey, writing for onlabor, reports that three graduate student workers filed a lawsuit in Boston federal district court against Harvard University, alleging that the university ignored allegations that John Comaroff, an anthropologist, had sexually harassed graduate students for years and had allowed him to intimidate students by threatening to derail their academic careers if they reported him. The lawsuit builds on an internal Title IX investigation conducted by Harvard that found that Dr. Comaroff had engaged in verbal conduct that violated policies on sexual and gender-based harassment and professional conduct, but which did not find that he was responsible for unwanted sexual contact. As a result of the investigation, Comaroff was placed on administrative leave for at least the spring semester and barred from teaching courses through at least the next year. In addition, in the days leading up to the lawsuit, the controversy surrounding the Title IV investigation stirred more than 90 Harvard faculty to sign an "open letter" defending Comaroff's character and criticizing certain aspects of the investigation. In response, another letter circulated by a rival group of Harvard academics criticized Comaroff's defenders for being too quick to accept the facts as told by his lawyers and openly aligning themselves against the student-complainants. Moreover, after the lawsuit was filed and further details came to light through the plaintiffs' complaint, a number of faculty renounced their support for Comaroff and attempted to retract their support of the original open-letter. Meanwhile, a federal district court has upheld the validity of a 2021 New York City law barring fast-food chains from firing employees without just cause against a challenge brought by the Restaurant Law Center and the NYS Restaurant Association. As Bloomberg reported, the law provides that covered employees may not be terminated, indefinitely suspended, or see their hours reduced without just cause. In addition, the law provides such workers the right to pursue arbitration if they believe they've been wrongfully discharged. In upholding the law against the restaurant groups' federal and constitutional claims, SDNY Judge Denise Cote found that the law was not preempted by the National Labor Relations Act because the law is intended to promote job stability for hourly workers in a specific industry and does not distinguish between union and non-union workers, including in its arbitration provision. Judge Cote noted that the law addresses the process by which fast-food workers can be terminated, not collective bargaining, and only creates individual rights for employees. In addition, the court upheld the law's arbitration provision against a claim that it was preempted by the Federal Arbitration Act, finding that the NYC law does not prohibit or impair the enforcement of private arbitration agreements or otherwise conflict with the FAA's statutory scheme. Lastly, the judge disposed of a claim that the law violated the Commerce Clause of the U.S. Constitution on the ground that it discriminated against interstate commerce, noting that the law's burden on interstate restaurant operations was indirect and that the law did not benefit in-state restaurant chains at the expense of out-of-state competitors. [GN] INTERNATIONAL BUSINESS: Age Discrimination Class Action Pending --------------------------------------------------------------- Noam Scheiber, writing for The Indian Express, reports that in recent years, former IBM employees have accused the company of age discrimination in a variety of legal filings and press accounts, arguing that IBM sought to replace thousands of older workers with younger ones to keep pace with corporate rivals. Now it appears that top IBM executives were directly involved in discussions about the need to reduce the portion of older employees at the company, sometimes disparaging them with terms like "dinobabies." A trove of previously sealed documents made public by a U.S. District Court on Feb. 11 show executives discussing plans to phase out older employees and bemoaning the company's relatively low percentage of millennials. The documents, which emerged from a lawsuit contending that IBM engaged in a years-long effort to shift the age composition of its workforce, appear to provide the first public piece of direct evidence about the role of the company's leadership in the effort. "These filings reveal that top IBM executives were explicitly plotting with one another to oust older workers from IBM's workforce in order to make room for millennial employees," said Shannon Liss-Riordan, a lawyer for the plaintiff in the case. Liss-Riordan represents hundreds of former IBM employees in similar claims. She is seeking class-action status for some of the claims, although courts have yet to certify the class. Adam Pratt, an IBM spokesperson, defended the company's employment practices. "IBM never engaged in systemic age discrimination," he said. "Employees were separated because of shifts in business conditions and demand for certain skills, not because of their age." Pratt said that IBM hired more than 10,000 people older than 50 in the United States from 2010 to 2020 and that the median age of IBM's U.S. workforce was the same in each of those years: 48. The company would not disclose how many U.S. workers it had during that period. A 2018 article by the nonprofit investigative website ProPublica documented the company's apparent strategy of replacing older workers with younger ones and argued that it followed from the determination of Ginni Rometty, then IBM's CEO, to seize market share in such cutting-edge fields as cloud services, big data analytics, mobile, security and social media. According to the ProPublica article, based in part on internal planning documents, IBM believed that it needed a larger proportion of younger workers to gain traction in these areas. In 2020, the Equal Employment Opportunity Commission released a summary of an investigation into these practices at IBM, which found that there was "top-down messaging from IBM's highest ranks directing managers to engage in an aggressive approach to significantly reduce the head count of older workers." The agency did not publicly release evidence supporting its claims. The newly unsealed documents -- which quote from internal company emails and which were filed in a "statement of material facts" in the lawsuit brought by Liss-Riordan -- appear to affirm those conclusions and show top IBM executives specifically emphasizing the need to thin the ranks of older workers and hire more younger ones. "We discussed the fact that our millennial population trails competitors," says one email from a top executive at the time. "The data below is very sensitive -- not to be shared -- but wanted to make sure you have it. You will see that while Accenture is 72% millennial we are at 42% with a wide range and many units falling well below that average. Speaks to the need to hire early professionals." "Early professionals" was the company's term for a role that required little prior experience. Another email by a top executive, appearing to refer to older workers, mentions a plan to "accelerate change by inviting the 'dinobabies' (new species) to leave" and make them an "extinct species." A third email refers to IBM's "dated maternal workforce," an apparent allusion to older women, and says, "This is what must change. They really don't understand social or engagement. Not digital natives. A real threat for us." Pratt said some of the language in the emails "is not consistent with the respect IBM has for its employees" and "does not reflect company practices or policies." The statement of material facts redacts the names of the emails' authors but indicates that they left the company in 2020. Both earlier legal filings and the newly unsealed documents contend that IBM sought to hire about 25,000 workers who typically had little experience during the 2010s. At the same time, "a comparable number of older, non-Millennial workers needed to be let go," concluded a passage in one of the newly unsealed documents, a ruling in a private arbitration initiated by a former IBM employee. Similarly, the EEOC's letter summarizing its investigation of IBM found that older workers made up more than 85% of the group whom the company viewed as candidates for layoffs, although the agency did not specify what it considered "older." The newly unsealed documents suggest that IBM sought to carry out its strategy in a variety of ways, including a policy that no "early professional hire" can be included in a mass layoff in the employee's first 12 months at the company. "We are not making the progress we need to make demographically, and we are squandering our investment in talent acquisition and training," an internal email states. The lawsuit also argues that IBM sought to eliminate older workers by requiring them to move to a different part of the country to keep their jobs, assuming that most would decline to move. One internal email stated that the "typical relo accept rate is 8-10%," while another said that the company would need to find work for those who accepted, suggesting that there was not a business rationale for asking employees to relocate. And while IBM employees designated for layoffs were officially allowed to apply for open jobs within the company, other evidence included in the new disclosure suggests that the company discouraged managers from hiring them. For example, according to the statement of material facts, managers had to request approval from corporate headquarters if they wanted to move ahead with a hire. Several of the plaintiffs in a separate lawsuit brought by Liss-Riordan appeared to have been on the receiving end of these practices. One of them, Edvin Rusis, joined IBM in 2003 and had worked as a "solution manager." He was informed by the company in March 2018 that he would be laid off within a few months. According to his legal complaint, Rusis applied for five internal positions after learning of his forthcoming layoff but heard nothing in response to any of his applications. Pratt said the company's efforts to shield recent hires from layoffs, as well as its approach to relocating workers, were blind to age and that many workers designated for layoffs did secure new jobs with IBM. The ProPublica story from 2018 identified employees in similar situations and others who were asked to relocate out of state and decided to leave the company instead. The company has faced other age discrimination claims, including a lawsuit filed in federal court in which plaintiffs accused the company of laying off large numbers of baby boomers because they were "less innovative and generally out of touch with IBM's brand, customers and objectives." The case was settled in 2017, according to ProPublica. In 2004, the company agreed to pay more than $300 million to settle with employees who argued that its decision in the 1990s to replace its traditional pension plan with a plan that included some features of a 401(k) constituted age discrimination. The federal Age Discrimination in Employment Act prohibits discrimination against people 40 or older in hiring and employment on the basis of their age, with limited exceptions. The act also requires companies to disclose the age and positions of all people within a group or department being laid off, as well as those being kept on, before a worker waives the right to sue for age discrimination. Companies typically require such waivers before granting workers' severance packages. But IBM stopped asking workers who received severance packages to waive their right to sue beginning in 2014, which allowed it to cease providing information about the age and positions of workers affected by a mass layoff. Instead, IBM required workers receiving a severance package to bring any discrimination claims individually in arbitration -- a private justice system often preferred by corporations and other powerful defendants. Pratt said the change was made to better protect workers' privacy. While some former employees preserved their ability to sue IBM in court by declining the severance package, many former employees accepted the package, requiring them to bring claims in arbitration. Liss-Riordan, who is running for attorney general of Massachusetts, represents employees in both situations. The particular legal matter that prompted the release of the documents in federal court was a motion by one of the plaintiffs whose late husband had signed an agreement requiring arbitration and whose arbitration proceeding IBM then sought to block. IBM argued that the plaintiff sought to pursue the claim in arbitration after the window for doing so had passed and that some of the evidence the plaintiff sought to introduce was confidential under the arbitration agreement. The plaintiff argued that those provisions of the arbitration agreement were unenforceable. The judge in the case, Lewis J. Liman, has yet to rule on the merits of that argument. But in January, Liman ruled that documents in the case, including the statement of material facts, should be available to the public. [GN] KPMG LLP: Order Regarding General Pretrial Management Entered ------------------------------------------------------------- In the class action lawsuit captioned as BORIS POGIL v. KPMG L.L.P., Case No. 1:21-cv-07628-LTS-BCM (S.D.N.Y.), the Hon. Judge Barbara Moses entered an order regarding general pretrial management as follows: -- All pretrial motions and applications, including those related to scheduling and discovery (but excluding motions to dismiss or for judgment on the pleadings, for injunctive relief, for summary judgment, or for class certification under Fed. R. Civ. P. 23) must be made to Judge Moses and in compliance with this Court's Individual Practices in Civil Cases, available on the Court's website at https://nysd.uscourts.gov/hon-barbara-moses. Parties and counsel are cautioned: 1. Once a discovery schedule has been issued, all discovery must be initiated in time to be concluded by the close of discovery set by the Court. 2. Discovery applications, including letter-motions requesting discovery conferences, must be made promptly after the need for such an application arises and must comply with Local Civil Rule 37.2 and § 2(b) of Judge Moses's Individual Practices. 3. For motions other than discovery motions, pre-motion conferences are not required, but may be requested where counsel believe that an informal conference with the Court may obviate the need for a motion or narrow the issues. 4. Requests to adjourn a court conference or other court proceeding (including a telephonic court conference) or to extend a deadline must be made in writing and in compliance with section 2(a) of Judge Moses's Individual Practices. Telephone requests for adjournments or extensions will not be entertained. 5. In accordance with section 1(d) of Judge Moses's Individual Practices, letters and letter-motions are limited to four pages, exclusive of attachments. Courtesy copies of letters and letter-motions filed via ECF are required only if the filing contains voluminous attachments. KPMG is a British-Dutch multinational professional services network, and one of the Big Four accounting organizations. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/34GYluN at no extra charge.[CC] KUCOIN: S.D. New York Certifies TOMO Token Class in Williams Suit ----------------------------------------------------------------- In the case, CHASE WILLIAMS, individually and on behalf of all others similarly situated, Plaintiff v. KUCOIN, MICHAEL GAN, JOHNNY LYU and ERIC DON, Case No. 20 Civ. 2806 (GBD) (RWL) (S.D.N.Y.), Judge George B. Daniels of the U.S. District Court for the Southern District of New York granted in part the Plaintiff's motion for class certification for a narrowed class that does not include purchasers of tokens that the Plaintiff did not purchase. I. Introduction Lead Plaintiff Williams purchased TOMO-brand digital asset tokens on KuCoin, an online crypto-asset exchange. He brings the putative class action against Defendants KuCoin, Michael Gan, Johnny Lyu, and Eric Don for violations of federal and state securities laws, claiming that KuCoin, and its principals, transacted in unregistered securities and failed to register KuCoin as a securities exchange and as a securities broker-dealer. The Plaintiff brings a total of 154 causes of action. The first five causes of action allege violations of the federal securities laws. Claims one through three arc directed at KuCoin and allege offer and sale of unregistered securities in violation of Section 5 of the Securities Act of 1993 (First Cause of Action); operation as an unregistered exchange in violation of Section 5 of the Securities Exchange Act of 1934, 15 U.S.C. Section 78e (Second Cause of Action); and operation as an unregistered broker and dealer in violation of Section 15(a)(1) of the Exchange Act, 15 U.S.C. Section 78o(a)(1) (Third Cause of Action). The two additional federal causes of action are directed to the individual Defendants, Gan, Lyu. and Don, and allege that they are liable as control persons for KuCoin's violations of the Exchange Act (Fourth Cause of Action) and Securities Act (Fifth Cause of Action). The remaining 149 causes of action assert violations of the analogous security laws of 49 states, the District of Columbia, and Puerto Rico. The Plaintiff moves for class certification under Federal Rule of Civil Procedure ("FRCP") 23. The Defendants never answered or otherwise moved in the action. On Oct. 23, 2020, at the Plaintiff's request, the Clerk of Court issued a Certificate of Default pursuant to FRCP 55(a) against each Defendant. The Plaintiff advises that lithe instant motion is granted, he anticipates filing a motion for default judgment on behalf of the class against each of the Defendants. Before the Court is Magistrate Judge Robert W. Lehrburger's Oct. 21, 2021 Report and Recommendation, recommending that the Plaintiff's motion for class certification be granted in part for a narrowed class that does not include purchasers of tokens that the Plaintiff did not purchase. Magistrate Judge Lehrburger advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. No objections have been filed. Having reviewed the Report for clear error and finding none, the Court adopts the Report. II. Background KuCoin, an online crypto-asset exchange, sells (amongst other digital assets) ten different tokens: EOS, SNT, QSP, KNC, TRX, OMG, LEND, ELF, CVC, and TOMO. KuCoin charges a fee for each transaction it facilitates. The issuers Idle Tokens did not register them as securities with the Securities and Exchange Commission ("SEC"), and KuCoin did not register itself as either an exchange or broker-dealer with the SEC. In November 2018, the Plaintiff purchased and sold TOMO Tokens through KuCoin incurring an estimated total loss of $4,183.51. The Plaintiff alleges that the Token issuers2 and KuCoin failed to make the robust disclosures required of securities, misled investors to conclude that the Tokens were not securities, and deprived investors of information necessary to reliably assess the representations made or the risks of their investments. The Plaintiff requests certification of the following class: "All persons who purchased on the KuCoin exchange any of the Tokens -- EOS, SNT, OSP, KNC, TRX, OMG, LEND, ELF, CVC. and TOMO -- each of which was listed for sale on a domestic U.S. exchange, or who otherwise purchased on the KuCoin exchange any of the Tokens in a domestic U.S. transaction, between Sept. 15, 2017 and July 2, 2021 and were injured thereby." III. Discussion A. The Plaintiff Has Class Standing to Represent Purchasers of TOMO Tokens Only Judge Daniels holds that Magistrate Judge Lehrburger correctly concluded that the Plaintiff lacks class standing to represent purchasers of Tokens that he did not purchase. As Magistrate Judge Lehrburger noted, the Plaintiff easily meets the first requirement -- he allegedly incurred a loss caused by the purchase and sale of TOMO Tokens through KuCoin and the relief he requests would redress that injury. However, whether the Plaintiff's injury "implicates the same set of concerns" as putative class members who did not purchase TOMO Tokens requires a detailed analysis. The Plaintiff's federal and state securities claims would require him to first demonstrate that the TOMO Tokens he purchases were "securities" under the SEC's Framework for Investment Contract Analysis which was derived from SEC v. W. J. Howey, Co., 328 U.S. 293 (1946). Magistrate Judge Lehrburger accurately reasoned that establishing KuCoin's liability for each Token would require individualized proof to satisfy Howey and that the Plaintiff would only have a personal stake in providing proof for TOMO Tokens, not all Tokens. He not only correctly analyzed this issue under the relevant Second Circuit case law but also allowed the Plaintiff to submit an expert declaration in support of his motion. Judge Daniels agrees with Magistrate Judge Lehrburger that the Plaintiff's expert declaration fails to support the proposition that Plaintiff's injury "implicates the same set of concerns as putative class members who did not purchase TOMO Tokens. Thus, the Plaintiff has standing to bring a putative class action on behalf of purchasers of TOMO Tokens on the KuCoin exchange within the relevant class period ("TOMO Token Class"). B. TOMO Token Class Satisfies the Requirements of Rule 23(a) AND 23(13)(3) thus the Plaintiff's Motion to Certify is Granted in Part Magistrate Judge Lehrburger correctly found the TOMO Token Class satisfies the numerosity, commonality, typicality, and adequacy of representation elements of Rule 23(a). While the TOMO Token Class is only 26 individuals, judicial economy will he served by proceeding in one action. The class members have several common questions related to their claims that are more than sufficient to satisfy Rule 23(a)(2). The Plaintiff's "disputed issues of law or fact" occupy essentially the same degree of centrality as the other members of the TOMO Token Class. Finally, the Plaintiff has no apparent conflict with the other class members and his chosen counsel, Roche Freedman UP and Selendy & Gay, PLLC, have extensive experience in complex financial class actions. Thus, the TOMO Token Class satisfies the Rule 23(a) requirements. The Plaintiff seeks certification under Rule 23(b)(3) which requires that "the Court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Judge Daniels holds that Magistrate Judge Lehrburger properly reasoned that "common issues predominate over individualized ones because most all elements of the Plaintiff's and each proposed class member's claims present questions that are susceptible to class-wide resolution." Further, a class action suit is superior to individual suits in this context: There is nothing to indicate that absent class members have expressed interest in controlling the prosecution of their claims; the losses of many class members are too small for an individual action; a single forum avoids the risk of inconsistent adjudication; and there is no evidence of any likely difficulties in managing the class action. The TOMO Token Class satisfies the Rule 23(b)(3) requirements. IV. Conclusion Magistrate Judge Lehrburger's Report is adioted. Judge Daniels granted in part the Plaintiff's Motion to Certify Class and Appoint Class Representative and Counsel for a narrower class that does not include purchasers of Tokens that the Plaintiff did not purchase. Thus, the class is certified as: "All persons who purchased on the KuCoin exchange any TOMO-brand tokens listed for sale on a domestic U.S. exchange, or who otherwise purchased on the KuCoin exchange TOMO-brand tokens in a domestic U.S. transaction, between Sept. 15, 2017 and July 2, 2021." Plaintiff Chase Williams is appointed as the Class Representative and the law firms of Roche Freedman LLP and Selendy & Gay PLLC are appointed as the Class Counsel. The Clerk of Court is directed to close ECF No. 103 accordingly. A full-text copy of the Court's Feb. 9, 2022 Memorandum Decision & Order is available at https://tinyurl.com/2p8w939c from Leagle.com. LANNETT COMPANY: Securities Suit Shelved Pending Appeal ------------------------------------------------------- Lannett Company, Inc. disclosed in its Form 10-Q Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 4, 2022, that in January 2022, the Third Circuit granted the company's motion to stay the securities case it was facing, pending a decision on the interlocutory appeal. In November 2016, a putative class action lawsuit was filed against the company and two of its former officers in the federal district court for the Eastern District of Pennsylvania, alleging that the company and two of its former officers damaged the purported class by making false and misleading statements regarding the company's drug pricing methodologies and internal controls. In December 2017, counsel for the putative class filed a second amended complaint. The company filed a motion to dismiss the second amended complaint in February 2018. In July 2018, the court granted the company's motion to dismiss the second amended complaint. In September 2018, counsel for the putative class filed a third amended complaint alleging that the company and two of its former officers made false and misleading statements regarding the impact of competition on prices and sales of certain of the company's products, regarding the potential effects on the company of regulatory investigations and antitrust litigation, and regarding the defendants' investigation of purported anticompetitive conduct. The company filed a motion to dismiss the third amended complaint in November 2018. In May 2019, the court denied the company's motion to dismiss the third amended complaint. In July 2019, the company filed an answer to the third amended complaint. In October 2020, counsel for the putative class filed a motion for class certification. In March 2021, the company filed a brief in opposition to the motion to certify the putative class. In August 2021, the court granted the motion to certify the proposed class, to appoint class representatives, and to appoint class counsel. In August 2021, the company filed a petition for permission to appeal the court's class certification order. In September 2021, counsel for the class filed a response in opposition to the company's position. In November 2021, the United States Court of Appeals for the Third Circuit granted the company's petition for permission to appeal the class certification order. In January 2022, the Third Circuit granted the company's motion to stay the case pending a decision on the interlocutory appeal. Lannett Company, Inc. develops, manufactures, packages, markets and distributes solid oral and extended release, topical, liquids, nasal and oral solution finished dosage forms of drugs, generic forms of both small molecule and biologic medications based in Pennsylvania. LIBERTY MUTUAL: Parties' Counsel to Confer on Penegar Case Status ----------------------------------------------------------------- In the case, CARRA JANE PENEGAR, Plaintiff v. LIBERTY MUTUAL INSURANCE COMPANY, LIBERTY MUTUAL FIRE INSURANCE COMPANY, VERISK ANALYTICS, INC., and ISO CLAIMS PARTNERS, INC., Defendant, Civil Action No. 3:20-CV-585-RJC-DCK (W.D.N.C.), Magistrate Judge David C. Keesler of the U.S. District Court for the Western District of North Carolina, Charlotte Division, issued an Order directing the counsel for the parties to confer regarding the status of the case and the issues related to the Plaintiff's standing. The matter is before the Court on Defendants Liberty Mutual Insurance Co. and Liberty Mutual Fire Insurance Co.'s "Motion To Dismiss Amended Complaint And Dismiss Or Strike Class Allegations" and the "Motion Of Verisk Analytics And ISO Claims Partners To Dismiss First Amended Class Action Complaint." These motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. Section 636(b), and immediate review is appropriate. Judge Keesler has reviewed the parties' briefs and finds that the case presents an interesting and close legal issue regarding the Plaintiff's standing. As such, he will direct some limited supplemental briefing. Judge Keesler is particularly interested in the impact of the "Agreement(s) For Final Compromise Settlement And Release," and related documents attached to Defendant Liberty Mutual's memoranda, on the Plaintiff's standing in the case. Liberty Mutual briefly argues that the Plaintiff has released any claims against it and that the parties' agreement, approved by the North Carolina Industrial Commission, establishes that Liberty Mutual must reimburse the Center for Medicare and Medicaid Services. Later, it argues that the "Plaintiff does not, and cannot, have an injury-in-fact because she released all of her claims against Liberty Mutual." Judge Keesler holds that it does not appear that the Plaintiff has adequately addressed this issue. He says, the Court's decision on the pending motion(s) is likely to be assisted by further briefing on the Plaintiff's standing and the applicability of the "Settlement And Release(s)" to the case. Without some persuasive argument and legal authority from the Plaintiff, Judge Keesler is inclined to take the parties at their word that they "placed great importance on the need for finality in the underlying litigation" and that the Plaintiff intended to release Defendant Liberty Mutual from any further liability related to the underlying workers' compensation claim. Although he finds that the case presents some close and interesting legal issues, Judge Keesler also observes that the entire action could have been avoided by better communication between the parties, the counsel, and the Center for Medicare and Medicaid Services. Moreover, the facts and circumstances of the case suggest that it may be a strong candidate for early settlement between the parties. In light of the foregoing, Judge Keesler ordered the counsel for the parties to confer via some form of "live" communication, such as telephone conference, Teams, or Zoom -- regarding the status of the case and the issues related to the Plaintiff's standing. The Plaintiff will file a supplemental brief of six pages or less. The Defendants will file a supplemental brief of six pages or less. A full-text copy of the Court's Feb. 9, 2022 Order is available at https://tinyurl.com/23uzby7n from Leagle.com. LIFE CARE: Atkinson Wage-and-Hour Suit Removed to W.D. Washington ----------------------------------------------------------------- The case styled LAMONT ATKINSON, individually and on behalf of all others similarly situated v. LIFE CARE CENTERS OF AMERICA, INC., Case No. 22-2-00662-5 SEA, was removed from the Superior Court for King County to the U.S. District Court for the Western District of Washington on February 17, 2022. The Clerk of Court for the Western District of Washington assigned Case No. 2:22-cv-00190 to the proceeding. The case arises from the Defendant's alleged failure to properly pay the Plaintiff and similarly situated employees for their time spent waiting for and undergoing Covid-19 screening and testing procedures in violation of the Washington wage and hour laws. Life Care Centers of America, Inc. is a long-term elderly care company, headquartered in Cleveland, Tennessee. [BN] The Defendant is represented by: Barbara J. Duffy, Esq. Erin M. Wilson, Esq. LANE POWELL PC 1420 Fifth Avenue, Suite 4200 P.O. Box 91302 Seattle, WA 98111-9402 Telephone: (206) 223-7000 Facsimile: (206) 223-7107 E-mail: duffyb@lanepowell.com wilsonem@lanepowell.com LOS ANGELES, CA: Concerns Raised Over DWP Class Action Settlement ----------------------------------------------------------------- Dakota Smith, writing for The Denver Gazette, reports that in June 2015, attorney Tim Blood and other lawyers representing Los Angeles Department of Water and Power customers over inaccurate charges caused by a new billing system were growing increasingly suspicious of the city attorney's office. The city had entered into settlement discussions with an out-of-state attorney who was also suing over the faulty charges. Attorneys representing other plaintiffs couldn't get details about the agreement. Blood called City Attorney Mike Feuer to talk about his concerns, but the city attorney quickly became angry and passed the phone to a top deputy, Blood recalled in a recent interview. Unable to get answers, Blood wrote to Feuer the next day, accusing city attorneys of acting unethically and engaging in "secret" discussions. "As you are well aware, the DWP has a disturbing history of a lack of transparency and deception, a history that continues and appears to now be actively promoted by the city attorney's office," the San Diego-based Blood wrote in the 2015 letter, which was first reported by the Daily Journal, a legal newspaper. Long before federal prosecutors alleged that Feuer's office helped engineer a class-action lawsuit against the city over the faulty DWP bills -- all part of an effort to control the settlement terms -- attorneys and others said they raised red flags. They didn't allege the criminal behavior that federal prosecutors now say took place. But at court hearings and in letters to Feuer and Mayor Eric Garcetti, Blood and others questioned the settlement. They asked why the out-of-state lawyer was getting more than $10 million in attorney fees, and why the city was so quick to settle. On Feb. 13, Blood said he doesn't feel vindicated by recent plea agreements filed by prosecutors that lay out the bribes, kickback and extortion that allegedly accompanied the scheme. "While some people are finally being held accountable, the Los Angeles political and legal culture that allowed this scandal to grow has not been addressed," Blood said. Back in 2015, "no one said or did anything other than circle the wagons," Blood said. As a result of the scandal, Feuer's top attorney overseeing civil litigation agreed to plead guilty last month, and three others, including the DWP's former top executive, have either pleaded guilty or agreed to plead guilty to various crimes connected to the billing fallout. Feuer, who is running for mayor, declined to be interviewed. A spokesman for the city attorney's office said Blood's letter did not raise red flags about collusion, either in 2015 or today. "At the time, Mr. Feuer interpreted Mr. Blood's letter as coming from an aggressive plaintiffs' lawyer impugning his competition so he could replace him as the lead negotiator in the settlement," said spokesman Rob Wilcox, adding that at the time the city was committed to quickly paying back DWP customers. Feuer's phone call with Blood was contentious because the city attorney had significant disagreements with Blood's allegations, Wilcox said. Feuer has said he was unaware of the scheme, which began after a faulty DWP billing system sent erroneous bills to hundreds of thousands of customers in 2013. With the utility facing multiple class-action lawsuits, the city's legal team was authorized by an unnamed "city attorney official" in Feuer's office to seek out a friendly lawyer to file a class-action lawsuit against the city, according to court documents filed by prosecutors. That way, a lawsuit covering all the DWP claims could be settled quickly and in a way that was "orchestrated by the city on the terms desired by the city," prosecutors said. The city entered into an initial settlement agreement with Ohio attorney Jack Landskroner in 2015. Landskroner, who was never charged with a crime and died last year, collected $10.3 million in attorney fees in the case -- money that came from the DWP. An attorney for the Landskroner estate declined to comment. Federal prosecutors refer to an "Ohio attorney" in court filings but have not named him. The Ohio attorney secretly funneled $2 million to Paul Paradis, an outside lawyer brought in to work for the city attorney's office on the DWP billing litigation, prosecutors said in Paradis' plea agreement. Paradis drafted the lawsuit that the Ohio attorney filed against the city, prosecutors said. Paradis used non-public information provided to him by members of the city attorney's office and the DWP to draft the complaint, prosecutors said in the agreement. Along with Blood, attorney David Bower raised concerns about how the class-action case was being handled. At a December 2015 hearing, Bower told the judge overseeing the case that Landskroner had done no discovery, the process by which lawyers gather evidence. "There's not one deposition that's been taken in the case," Bower told Los Angeles Superior Court Judge Elihu Berle, according to a court transcript. Bower, who also represented DWP customers, told the judge that the city was using a legal strategy in which the defendant enters into a weak settlement with the most "ineffectual class lawyers" to quickly resolve the case and preclude other claims from being filed. Blood, the San Diego attorney, also accused city attorneys of using that legal strategy in his letter to Feuer, which Bower signed. "Everything we told the court that we suspected was happening was happening," Bower said last month. Wilcox, Feuer's spokesman, denied that the city's legal strategy was to settle with the weakest plaintiffs. He also denied that there was any "secret settlement," and that the mediator in charge of the settlement kept the initial settlement terms and memorandum of understanding confidential. The initial settlement terms were publicly revised and approved after the court heard and evaluated criticisms about them from attorneys, Wilcox said. He also said the city is trying to recoup the $10.3 million paid to Landskroner. In 2019, Berle, the judge in the case, assigned a former federal prosecutor to investigate the settlement. A 595-page report released last year by Edward Robbins concluded that two top attorneys in Feuer's office -- Thomas Peters, who agreed last month to plead guilty to one count of aiding and abetting extortion, and Jim Clark -- were the "shot callers" for a "sham" lawsuit against the city. A lawyer for Clark didn't respond to a request for comment. Another attorney representing Clark previously told The Times that Clark wasn't interviewed by Robbins. Other attorneys for the city -- both staff and outside counsel -- who were working on the billing litigation violated ethics rules, the report found. Some of those attorneys told The Times last year they didn't act improperly, and others didn't respond to a request for comment. The report mentioned Blood's June 2015 letter, saying it "put Feuer on notice of the problematic nature of the settlement. Mr. Blood's instincts were good given his limited information." Robbins' report and prosecutors' court filings also have highlighted an internal email written in August 2015 by one of the city's outside attorneys. In an email received by half a dozen attorneys working for the city, attorney Maribeth Annaguey listed 20 reasons why the high attorneys' fees proposed by the mediator overseeing the case were difficult to support. Landskroner had done "little demonstrative work to advance the interests of the class," Annaguey wrote, and the DWP had been committed to "fully refund" and credit its customers before the lawsuits were filed. Annaguey did not respond to questions from The Times. Feuer spokesman Wilcox said Feuer didn't see Annaguey's email at the time it was written, but said it did not raise red flags. "While Ms. Annaguey's email shows she thought the attorneys' fee award was too high, it does not suggest Ms. Annaguey believed any illegal activity had occurred," Wilcox said. Jamie Court, head of the nonprofit group Consumer Watchdog, compares the scandal laid out by prosecutors to the chicanery and corruption carried out by city leaders who schemed to bring water from the Owens Valley to L.A. in the early part of the 20th century. Court wrote to Garcetti in October 2015, describing the settlement as "one-sided and corrupted," according to the letter, which was reviewed by The Times. Court didn't know about the alleged criminal behavior at the time, but he questioned the high fees paid to Landskroner, among other issues. "Make no mistake, this settlement is not fair to ratepayers," Court wrote in the letter to Garcetti, which was also sent to Feuer. "It is an inside job between the LADWP and an attorney who doesn't truly represent the interest of the community." Garcetti's team referred Court to Mel Levine, then the president of the DWP board of commissioners, to discuss the settlement. Despite talks with the city, Court still objected to the final settlement, arguing it gave too much power to the DWP because it let the utility determine how much customers should be repaid. Asked about Court's letter, a Garcetti spokesman said last month the blame for the scandal lies with the "criminals who conspired to defraud the taxpayers for their own personal gain." Court takes a different view, saying City Hall ignored the warnings. "No one on the inside bothered to take any of these criticisms seriously," Court said. [GN] MARQUE OF BRANDS: Abreu Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Marque of Brands Americas, LLC. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Marque of Brands Americas, LLC, Case No. 1:22-cv-01335 (S.D.N.Y., Feb. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Marque of Brands Americas is a cosmetic products manufacturer in Alexandria, Tennessee.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI & KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com MARSH & MCLENNAN: Bohank Appeals Dismissal of Data Breach Suit -------------------------------------------------------------- Plaintiff Nancy Bohank filed an appeal from a court ruling entered in the lawsuit styled NANCY BOHNAK and JANET LEA SMITH, on behalf of themselves and all others similarly situated v. MARSH & MCLENNAN COMPANIES, INC., a Delaware corporation, and MARSH & MCLENNAN AGENCY, LLC, a Delaware limited liability company, Case No. 1:21-cv-06096-AKH, in the United States District Court for the Southern District of New York. As reported in the Class Action Reporter on July 23, 2021, the lawsuit is brought against the Defendants for their failure to properly secure and safeguard sensitive information of (i) Defendants' current and former employees and spouses and dependents thereof; (ii) current and former employees of Defendants' clients, contractors, applicants, and investors; and (iii) individuals whose information Defendants acquired through the purchase of or merger with another business. The sensitive information Defendants failed to properly secure, includes, without limitation, name, Social Security or other federal tax identification number, driver's license or other government issued identification, and passport information (personally identifiable information or PII). According to the complaint, on or before April 26, 2021, Defendants learned that "an unauthorized actor had leveraged a vulnerability in a third party's software since at least April 22, to gain access to a limited set of data in its environment" (Data Breach). The Data Breach ended on April 30, 2021, approximately one week after it commenced. At the time of the Data Breach, the compromised set of data stored the PII of at least 7,000 individuals. The PII was compromised due to Defendants' negligent and/or careless acts and omissions and the failure to protect the PII of Plaintiffs and Class Members, asserts the complaint. In addition to Defendants' failure to prevent the Data Breach, after discovering the breach, Defendants waited approximately two months to report it to various states' Attorneys General and Class Members. Defendants have also purposefully maintained secret the specific vulnerabilities and root causes of the breach and has not informed Plaintiffs and Class Members of that information, adds the complaint. On October 8, 2021, the Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). On January 17, 2022, Judge Alvin K. Hellerstein entered an order denying in part Defendants' motion to dismiss for lack of subject matter jurisdiction, and granting in part the motion for failure to state a claim. The Plaintiff seeks a review of this ruling. The appellate case is captioned as Bohnak v. Marsh & McLennan Companies, Inc., Case No. 22-319, in the United States Court of Appeals for the Second Circuit, filed on Feb. 17, 2022.[BN] Plaintiff-Appellant NANCY BOHNAK, on behalf of herself and all others similarly situated, is represented by: Jonathan M. Sedgh, Esq. MORGAN & MORGAN 850 3rd Ave, Suite 402 Brooklyn, NY 11232 Telephone: (212) 738-6839 Facsimile: (813) 222-2439 E-mail: jsedgh@forthepeople.com - and - John A. Yanchunis, Esq. Ryan D. Maxey, Esq. MORGAN & MORGAN 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jyanchunis@ForThePeople.com rmaxey@ForThePeople.com MATCH GROUP: Won't Charge Older Users More for Tinder+ Amid Lawsuit ------------------------------------------------------------------- Ahmedabad Mirror reports that following a new report questioning Tinder's practice of charging older users "substantially more", the popular dating app has said it will no longer charge older users more to use Tinder+, media reports say. The report, from Mozilla and Consumers International, detailed just how much Tinder+ pricing can vary based on users' age, reports Engadget. The report relied on "mystery shoppers" in six countries -- the US, Netherlands, New Zealand, Korea, India and Brazil -- who signed up for Tinder+ and reported back how much the app charged for the subscription. According to the report, Tinder users between the ages of 30 and 49 were charged an average of 65.3 per cent more than their younger counterparts in every country except Brazil. Tinder's age-based pricing for Tinder, which gives users access to premium features like unlimited likes, has long been a source of controversy for the dating app, the report said. When it launched, the company said it charged older users more because younger people were more "budget-constrained". Since then, the dating app has been hit with at least one class-action lawsuit over the practice. But though Tinder had pledged to end the practice in some areas, like California where the class action suit originated, the company continued to offer different rates in many countries. The latest report from Consumers International highlighted how much the dating app's subscription pricing could vary. In New Zealand, where the mystery shoppers were quoted a total of 25 different prices, the lowest quoted price was $4.95, while the highest was $24.54, according to the report. In the Netherlands, there were 31 different prices, with the lowest at $4.45 and the highest at $25.95. Now, Tinder said it plans to abandon its age-based pricing altogether. In a blog post, the dating all said younger users were offered subscriptions at different rates to "make Tinder affordable for those in school or early in their careers". The company said it ended the practice in the US, Australia and the UK, and that it plans on "eliminating age-based pricing for all of our members in all markets by the end of the second quarter this year". [GN] MAXIMUS INC: Order on Class Cert. Deadline Entered in Brickman -------------------------------------------------------------- In the class action lawsuit captioned as Brickman v. Maximus, Inc., et al.,Case No. 2:21-cv-03822 (S.D. Ohio), the Hon. Judge Kimberly A. Jolson entered an order on motion for miscellaneous relief. The Plaintiff's motion for class certification deadline is 120 days from the substantial completion of fact discovery deadline, says Judge Jolson. The nature of suit states contract -- civil miscellaneous case. Maximus is an American government services company, with global operations in countries including the United States, Australia, Canada, and the United Kingdom. The company contracts with government agencies to provide services to manage and administer government-sponsored programs.[CC] MAYFLOWER TRANSIT: Class Settlement in Greenly Gets Initial Nod --------------------------------------------------------------- In the class action lawsuit captioned as DAVID GREENLEY, individually and on behalf of all others similarly situated, v. MAYFLOWER TRANSIT, LLC, Case No. 21-cv-339-WQH-MDD (S.D. Cal.), the Hon. Judge William Q. Hayes entered an order as follows: 1. The Court grants the request for Preliminary Approval of the Class Action Settlement. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Court grants the Parties' request for certification of the following Rule 23 Settlement Class for the sole and limited purpose of implementing the terms of the Settlement Agreement, subject to this Court's final approval: A. The Confidential Communication Class for Violation of Penal Code, consisting of: "All persons in California who booked a move online through the Mayflower Gemini program and whose conversations were recorded without their consent, by Defendant, and or its agents, within the one year prior to the filing of the Complaint." B. The Cellular Phone Communication Sub-Class for Violation of Penal Code section 632.7, consisting of: "All persons in California who booked a move online through the Mayflower Gemini program and whose cellular telephone conversations were recorded without their consent, by Defendant, and or its agents, within the one year prior to the filing of the complaint." 3. The Court recognizes that certification under this Order is for settlement purposes only and shall not constitute or be construed as an admission by Defendant that this action is appropriate for class treatment for litigation purposes. 4. The Court appoints and designates: (a) Plaintiff David Greenley as the ClassRepresentative and (b) the firms of Swigart Law Group, APC and The Barry Law Office, Ltd as Class Counsel for the Class. 5. Any Settlement Class Member may opt out of the Settlement and enter an appearance through his or his own counsel at such Class Member's own expense. 6. The Court hereby preliminarily approves the Settlement in the Maximum Settlement Amount of $1,450,000.00, with the Net Settlement Amount being calculated by subtracting the following from the Maximum Settlement Amount: (1) Class Counsel's attorneys' fees (not to exceed 25% of the Maximum Settlement Amount or $362,500.00); (2) Class Counsel's Costs (not to exceed $50,000.00); (3) Class Representative Service Award to be paid to Representative David Greenley not to exceed $10,000; and (4) the Claims Administration Costs to the Claims Administrator, CPT Group, Inc. The Net Settlement Amount remaining for paying Individual Settlement Payments to the Participating Class Members is anticipated to be approximately $1,010,000.00. The Court further preliminarily approves the formulas provided in the Settlement for calculating Individual Settlement Payments, the Opt-Out Deadline, the Objection Deadline, and the submission deadline. 7. The Court finds on a preliminary basis that the Settlement, including the Class Representative Service Award, Class Counsel Fees and Costs, the Claims Administration Costs and the proposed allocation of Individual Settlement Payments to Participating Class Members, appears to be within the range of reasonableness of a settlement that could ultimately be given final approval by this Court. 8. A final approval hearing shall be held before this Court on August 4, 2022, in 12 Courtroom 14B of the United States District Court, Southern District of California, at 10:30 a.m. to determine all necessary matters concerning the Settlement, including whether the proposed Settlement of the Action on the terms and conditions provided for in the Settlement are fair, adequate and reasonable and should be finally approved by the Court and whether a Judgment should be entered herein. 9. The Court appoints and designates CPT Group, Inc., as the third-party Claims Administrator. The Court hereby directs the Claims Administrator to provide the approved Notice Packet documents to Settlement Class Members and administer the Settlement in accordance with the procedures set forth in the Settlement herein, including in conformance with the schedule set forth below. 10. Any Settlement Class Member may choose to opt out of and be excluded from the Settlement as provided in the Settlement and Notice of Class Action Settlement and by following the instructions for requesting exclusion. Mayflower Transit, LLC, a subsidiary of UniGroup, is an American moving company based in Fenton, Missouri. Mayflower operates as an agent owned co-op to coordinate loads, packing, and third-party services. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3oY6GkF at no extra charge.[CC] MCKESSON INC: Pending Bid to Stay Dismissed as Moot in Nathan ------------------------------------------------------------- In the class action lawsuit captioned as CHRIS, NATHAN, and JOHN DOE, individually and on behalf of all others similarly situated, v. MCKESSON, INC., and DAVID CIFU, Case No. 4:19-cv-00189-RSB-CLR (S.D. Ga.), the Hon. Judge Chrsitopher L. Ray entered an order that: 1. The case is stayed pending disposition of the pending Motions to Dismiss. The Parties are free to file any motion they deem appropriate during the pendency of the stay, but the stay shall apply to any opposing party's obligation under the Federal Rules of Civil Procedure or this Court's Local Rules to respond to that motion, unless specifically directed by the Court. Accordingly, the pending Motion to Stay is dismissed as moot. 2. At the hearing, counsel for defendant McKesson agreed that the stay, including a stay of any party's obligation to respond to motions filed during its pendency, mooted the relief requested in its Motion for Protective Order. Accordingly, that motion is also dismissed as moot. McKesson is an American company distributing pharmaceuticals and providing health information technology, medical supplies, and care management tools. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/33rRR24 at no extra charge.[CC] MCMC LLC: Mauthe Seeks to Extend Reply Brief Date to March 14 ------------------------------------------------------------- In the class action lawsuit captioned as ROBERT W. MAUTHE, M.D., P.C., individually and on behalf of all others similarly situated, v. MCMC, LLC, Case No. 5:18-cv-01901-EGS (E.D. Pa.), the Plaintiff asks the Court to enter an order extending its deadline for its reply brief to March 14, 2022. The Court said, "There is good cause for permitting the extension, and no harm or prejudice will result. The Plaintiff's counsel has several other pressing matters around the current due date, including a motion for summary judgment and brief due in another case pending in this district, as well as a summary judgment response and a lengthy reply in support of class certification due in the Eastern District of Michigan. In addition, plaintiff has an all-day mediation in a third action. The Defendant's counsel agrees to the extension provided that the Court will reschedule the oral argument to a time prior to June 2022, when Defendant's counsel will be unavailable while he is traveling in California to his son’s wedding and for vacation in connection therewith." On October 28, 2021, this Court entered a briefing schedule after holding a telephone conference with counsel. On December 17, 2021, pursuant to that schedule, Plaintiff filed a renewed motion for class certification and a brief in support; and Defendant submitted its brief in opposition on January 31, 2022. The briefing schedule provides that Plaintiff shall have until February 21, 2022, to file a reply brief. Oral argument presently set for March 7, 2022 at 9:30 a.m., in person on the 4th floor of the Holmes Building, 101 Larry Holmes Drive, in Easton, Pennsylvania. MCMC LLC operates as a managed care services company. A copy of the Plaintiff's motion dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3HTkjca at no extra charge.[CC] The Plaintiff is represented by: Phillip A. Bock, Esq. David M. Oppenheim, Esq. Molly E. Stemper, Esq. B OCK HATCH & OPPENHEIM, LLC 203 N. La Salle St., Ste. 2100 Chicago, IL 60601 Telephone: (312) 658-5500 E-mail: service@classlawyers.com - and - Richard E. Shenkan, Esq. SHENKAN INJURY LAWYERS, LLC P.O. Box 7255 New Castle, PA 16107 Telephone: (248) 562-1320 Facsimile: (888) 769-1774 E-mail: rshenkan@shenkanlaw.com MDL 2966: Two Expert Witnesses in Xyrem Antitrust Suit Disqualified ------------------------------------------------------------------- In the case, IN RE XYREM (SODIUM OXYBATE) ANTITRUST LITIGATION, Case No. 20-md-02966-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California issued an order: a. granting in part and denying in part the Plaintiffs' motion to strike affirmative defenses included in the Defendants' answers to the complaint; b. granting the Defendants leave to amend for any affirmative defenses for which the motion to strike is granted; and c. granting Defendant Hikma's motion to disqualify two of the Plaintiffs' expert witnesses. I. Background In the multidistrict litigation, the Plaintiffs aver that the Defendants engaged in an anticompetitive scheme to delay generic competition for Xyrem, a drug used to treat cataplexy and daytime sleepiness in patients with narcolepsy. The Defendants have answered the operative complaints. The multidistrict litigation arises from alleged anticompetitive conduct in the distribution of Xyrem, a prescription sodium oxybate drug product. Xyrem was sold by Jazz Pharmaceuticals, Inc., Jazz Pharmaceuticals Ireland Limited, and Jazz Pharmaceuticals Public Limited Company (collectively "Jazz"). The complaints aver that Jazz and the other Defendants engaged in anticompetitive conduct to delay a generic version of Xyrem from entering the market. In addition to Jazz, the Defendants include generic companies Hikma Labs, Inc. (formerly known as Roxane Laboratories, Inc.), Hikma Pharmaceuticals USA Inc. (formerly known as West-Ward Pharmaceuticals Corp.), Eurohealth (USA), Inc., and Hikma Pharmaceuticals plc (collectively, "Hikma"), which are all related companies, and Amneal Pharmaceuticals LLC ("Amneal"), Par Pharmaceuticals, Inc., and Lupin Ltd, Lupin Pharmaceuticals Inc., and Lupin, Inc. (collectively "Lupin"). The MDL comprises both class and individual actions. Eight of the cases making up the MDL involve putative class actions. The judge previously assigned to the MDL appointed co-lead counsel, and the Plaintiffs filed a Consolidated Class Action Complaint. After the filing of the Consolidated Class Action Complaint, Plaintiff United Healthcare Services' ("UHS") action was transferred to the district by the Judicial Panel on Multidistrict Litigation. All parties have agreed that UHS's complaint overlaps significantly with the Consolidated Class Action Complaint, and that UHS will litigate its overlapping claims to resolution before litigating any remaining causes of action. Following the Defendants' answers to the Amended Consolidated Class Action Complaint and the UHS Complaint, the Class Plaintiffs and UHS brought a motion to strike affirmative defenses. Defendant Hikma brings a motion to disqualify its former expert witnesses, Dr. Michael I. Shamos and Dr. Robert T. Hrubiec, as expert witnesses for Class Plaintiffs. II. Discussion A. Motion to Strike Affirmative Defenses The Plaintiffs move to strike seven affirmative defenses raised by the Defendants in their answers to the Consolidated Class Action Complaint and the UHS Complaint: Laches, estoppel, waiver, the Takings Clause, intervening cause, passed-on overcharges, and ultra vires. 1. Laches Defendants Jazz, Amneal, Lupin, Hikma, and Par raise laches defenses to both complaints. A laches defense "requires proof of the following elements: [1] the plaintiff delayed filing suit for an unreasonable and inexcusable length of time from the time the plaintiff knew or reasonably should have known of its claim against the defendant, and [2] the delay operated to the prejudice or injury of the defendant." The Defendants point to portions of the complaints they believe could indicate that the Plaintiffs were already on notice of their claims. They argue "the bare fact of delay creates a rebuttable presumption of prejudice." The Plaintiffs argue the statement in Boone is dicta, citing Bratton v. Bethlehem Steel Corp., 649 F.2d 658, 667 n.8 (9th Cir. 1980). Judge Seeborg holds that the laches defense may not succeed on the merits, but at this stage the motion to strike this defense is denied as the Defendants have raised a plausible laches defense. 2. Estoppel Defendants Jazz, Amneal, Lupin, Hikma, and Par raise estoppel defenses to both complaints. They, however, fail to specify which type of estoppel doctrine they seek to invoke as a defense, or explain how any facts pled relate to the elements of their estoppel defense. The motion to strike as to the estoppel defense is therefore granted. 3. Waiver Defendants Jazz, Amneal, Lupin, and Par raise waiver defenses to both complaints. "Waiver is the intentional relinquishment of a known right with knowledge of its existence and the intent to relinquish it." Fishman v. Tiger Nat. Gas Inc., No. C 17-05351 WHA, 2018 WL 4468680, at *4 (N.D. Cal. Sept. 18, 2018) (citation omitted). Defendants have failed to identify in this affirmative defense what right Plaintiffs relinquished. The motion to strike as to the waiver defense is therefore granted. 4. Takings Clause Hikma raises a Takings Clause defense to both Complaints. A claim under the Takings Clause of the Fifth Amendment requires showing "the Government has both taken property and denied just compensation." Judge Seeborg finds that Hikma has failed to specify in its affirmative defense how the Government has taken property and how Hikma has been denied just compensation. The motion to strike as to the Takings Clause defense is therefore granted. 5. Superseding and intervening cause Hikma raises an intervening cause defense to the Consolidated Class Action Complaint. Although "an antitrust violation can be the proximate cause of a plaintiff's injury even if there are additional independent causes of the injury," sometimes "an independent cause fully accounts for the plaintiff's alleged injury and breaks the causal connection between the alleged antitrust violation and the plaintiff's injury." Hikma's basis for the defense, as pled in the answer, is that "the role and actions of third-party payors prevented any anticompetitive overcharges" because third-party payors negotiate contract rates for drugs, which then sets the prices paid for the drug. At this stage, the laintiffs have pled a plausible intervening cause defense, and the motion to strike as to this defense is denied. 6. Passed-on overcharges Par raises a passed-on overcharges defense to both complaints, stating in its answers that the "Plaintiffs' claims are barred, in whole or in part, to the extent they seek damages for any alleged overcharge that was passed on to others." The Defendants contend the essence of this defense is that "indirect purchaser claims are limited to the harm that plaintiff actually suffered, and that plaintiffs cannot recover the amount of any overcharge that they passed-on to their customers." Yet, as noted in cases cited by the Plaintiffs, Judge Seeborg finds that it is unclear whether this defense is applicable to end-payor health and benefit plans in pharmaceutical cases. At this stage, therefore, he declines to strike this defense. 7. Ultra vires Par raises an ultra vires defense to both complaints. It states that to the extent any actionable conduct occurred, the Plaintiffs' claims are barred to the extent that such conduct was committed by an individual acting ultra vires. No employee of Par had or has the authority to cause Par to violate any law." Judge Seeborg holds that Par fails to explain what ultra vires conduct it alleges, and therefore it has not adequately pled this defense. The motion to strike as to the ultra vires defense accordingly is granted. 8. Conclusion as to Motion to Strike Affirmative Defenses For many of the defenses for which the motion to strike is granted, Judge Seeborg concludes that it is unclear whether the deficiencies may be cured. As leave to amend is to be freely granted, at this juncture, the Defendants are given leave to amend. B. Motion to Disqualify Expert Witnesses The Class Plaintiffs have retained two expert witnesses, Dr. Michael I. Shamos and Dr. Robert T. Hrubiec, as expert witnesses. Dr. Shamos and Dr. Hrubiec were previously retained by Hikma during its patent litigation against Jazz. Hikma seeks to disqualify Dr. Shamos and Dr. Hrubiec, arguing that the two were given confidential information during their work with Hikma, and that Hikma will suffer prejudice if the Class Plaintiffs are allowed to present opinions from Dr. Shamos and Dr. Hrubiec. Of the two requirements to grant a motion to disqualify, the existence of a confidential relationship and the disclosure of relevant confidential information, the Plaintiffs do not dispute the latter. The focus of this analysis is thus whether relevant confidential information was disclosed, as well as "whether disqualification would be fair to the affected party and would promote the integrity of the legal process." Hikma argues Dr. Shamos and Dr. Hrubiec received five types of confidential information: (1) information on Hikma counsel's litigation strategy; (2) information relating to, but not included in, the expert reports; (3) information on topics other than the subjects of their expert reports; (4) Hikma counsel's thoughts on the strengths and weaknesses of Hikma's patent litigation position and ultimate likelihood of success; and (5) other written attorney work product. The Class Plaintiffs first argue that because they have instructed Dr. Shamos and Dr. Hrubiec "not to disclose any of the purportedly confidential information that Hikma identifies, Opposition to Motion to Disqualify, at pg. 11, there are no concerns about the disclosure of confidential information. They, however, have offered no case establishing that a promise not to ask for confidential information can overcome a motion to disqualify in which the requirements for disqualification are otherwise satisfied. The Class Plaintiffs also argue Hikma has not met its burden of showing it provided relevant confidential information to the experts. They argue that the validity of the patents, a subject of the expert reports in the earlier litigation, is only indirectly related to this litigation. Hikma has provided a declaration from Alan Clement, one of its lawyers in the earlier litigation, stating he provided his thoughts on the success of litigation to Dr. Shamos and Dr. Hrubiec. Those thoughts are relevant to the present litigation. Hikma has met its burden of showing it disclosed relevant confidential information to Dr. Shamos and Dr. Hrubiec. Further, prejudice to the Class Plaintiffs will be minimal, Judge Seeborg finds. He states, the case is in the early stages of litigation, and the Class Plaintiffs will have an adequate opportunity to find and retain other expert witnesses. Further, the Class Plaintiffs were aware of this possible conflict at the time they sought out and retained Dr. Shamos and Dr. Hrubiec. The greatest prejudice to the Class Plaintiffs will be expense. Other experts who are not already familiar with the Jazz-Hikma litigation and the patents at issue will require more time, and thus will bill more hours, to review the materials and establish their opinions. That an expert will need to start from scratch in their review of the case, however, is not a significant prejudice to Class Plaintiffs. Indeed, the Class Plaintiffs have not argued that it will be difficult to find an expert able to opine on the issues at hand. Public policy concerns also do not prevent disqualification, Judge Seeborg finds. Dr. Shamos and Dr. Hrubiec were both retained for an extended period and developed expert reports. Further, disqualification only bars Dr. Shamos and Dr. Hrubiec from consulting on "identical claims" in litigation against the company that previously retained them. Moreover, this is not a "situation in which a party retains an expert solely for the purpose of preempting access to that expert by opposing counsel." In short, consideration of fairness and prejudice weighs in favor of disqualification. When considering the requirements for disqualification along with fundamental fairness and prejudice concerns, disqualification of Dr. Shamos and Dr. Hrubiec is proper, Judge Seeborg holds. Hence, Hikma's motion to disqualify these experts is therefore granted. III. Conclusion For all the foregoing reasons, Judge Seeborg granted in part and denied in part the Plaintiffs' motion to strike affirmative defenses. For any affirmative defenses for which the motion is granted, the Defendants are granted leave to amend. Judge Seeborg granted Hikma's motion to disqualify expert witnesses. A full-text copy of the Court's Feb. 9, 2022 Order is available at https://tinyurl.com/yc3wnz5p from Leagle.com. MDL 2968: Final Judgment Entered in Covid-19 Travel Insurance Suit ------------------------------------------------------------------ Judge John G. Koeltl of the U.S. District Court for the Southern District of New York entered Final Judgment in the case, IN RE GENERALI COVID-19 TRAVEL INSURANCE LITIGATION, Case No. 20-md-2968 (S.D.N.Y.). Following transfer to the Court as ordered by the U.S. Judicial Panel on Multidistrict Litigation, the Plaintiffs filed a consolidated class action complaint against Defendants Generali US Branch and Customized Services Administrators, Inc. alleging breach of insurance contracts and related non-contract claims. The present Court granted the Defendants' motion to dismiss the claims of Plaintiffs Clonts, Garner, Johner, Sharma, Morris, and Schrader for failure to state a claim under Federal Rule of Civil Procedure 12(h)(6). It also granted the Defendants' motion to dismiss Plaintiff Oglevee's claims arising out of the insurance policy she purchased in connection with her flight tickets, while staying as subject to arbitration her other claims arising out of a different insurance policy purchased through VRBO.com. As all of the Plaintiffs' claims that the Court has not dismissed are stayed pending conclusion of arbitration, Judge Koeltl now enters the Final Judgment. The cases and claims of Plaintiffs Clonts, Garner, Johner, Sharma, Morris, and Schrader are severed and dismissed with prejudice for the reasons stated in the Court's Dec. 21, 2021 Order. The claims of Plaintiff Oglevee arising out of the Generali travel insurance policy she purchased in connection with her flight tickets are severed and dismissed with prejudice. The Final Judgment does not apply to Plaintiff Oglevee's other claims (i.e., those arising out of the policy she purchased through VRBO.com), which remain stayed pending the conclusion of arbitration. Finding no just reason for delay, Judge Koeltl enters the judgment under Rule 54(b) of the Federal Rules of Civil Procedure. The Clerk is respectfully directed to enter the Final Judgment against Plaintiffs Clonts, Gamer, Johner, Sharma, Morris, Schrader, and Oglevee and in favor of Defendants Generali US Branch and Customized Services Administrators, Inc. forthwith. A full-text copy of the Court's Feb. 9, 2022 Final Judgment is available at https://tinyurl.com/yckkd67w from Leagle.com. MEDICAL LIABILITY: Order Dismissing Castagna Class Suit Affirmed ---------------------------------------------------------------- In the case, MARK CASTAGNA, ETC., ET AL., Appellants v. JOHN CAPOTORTO, ET AL., Respondents, 2019-04656, Index No. 516767/18 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, Second Department, affirmed with costs the order of Judge Sylvia G. Ash of the Supreme Court, Kings County. The order dated Feb. 27, 2019, granted the Defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint. The case is a putative class action, inter alia, to recover damages for breach of fiduciary duty. The Plaintiffs are representatives of the approximately 18,000 policyholders of Medical Liability Mutual Insurance Co. (MLMIC), and the Defendants are members of MLMIC's Board of Directors. On Sept. 6, 2018, after a public hearing, the New York State Superintendent of Financial Services approved MLMIC's Plan of Conversion seeking to convert MLMIC from a mutual insurance company to a stock insurance company, and the acquisition of MLMIC by National Indemnity Co. (NICO) in exchange for $2.502 billion. The Plaintiffs subsequently commenced the putative class action alleging breach of fiduciary duty, negligent misrepresentation, and violation of General Business Law Section 349 in connection with the Plan of Conversion. The Defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint. In an order dated Feb. 27, 2019, the Supreme Court granted the motion. The Plaintiffs appeal. The Appellate Division holds that the Supreme Court correctly determined that the causes of action asserted in the amended complaint are barred as a collateral attack on the Superintendent's determination. It finds that the collateral attack doctrine does not exist apart from administrative collateral estoppel. Therefore, a cause of action is barred as an impermissible collateral attack on the Superintendent's determination when there is identity of issues and when the Plaintiffs had a full and fair opportunity to contest the Superintendent's determination. Thus, the collateral attack doctrine only bars causes of action of which the Superintendent was aware when approving a demutualization plan. The Plaintiffs do not seek to overturn the Superintendent's decision. Rather, they seek monetary damages, as they allege that the sale of MLMIC to NICO for $2.502 billion was undervalued. Therefore, the question before the Court is whether the Plaintiffs had the opportunity to contest the validity of the financial information provided to the Superintendent which formed the basis of her approval of the transaction. The Appellate Division determines that the record demonstrates that the Plaintiffs had a full and fair opportunity to contest the proposed Plan of Conversion at a public hearing, and that the Superintendent's review of the proposed Plan of Conversion was broad in scope, including review of an independent financial valuation and testimony and evidence taken at the public hearing. The Superintendent specifically considered and rejected the claim that information regarding the Plan of Conversion that was provided to the plaintiffs by the defendants was misleading. The Superintendent had before her ample financial information to make a thorough determination as to the accuracy of the independent valuation of MLMIC performed by Ernst & Young, which set forth four different methods of calculation. This information included an expert's opinion provided by the Plaintiffs. The Superintendent concluded that the Plan of Conversion, including the $2.502 billion consideration, was fair and equitable and in the best interests of the policyholders and the public. Though the Plaintiffs now couch their claims in terms of breach of fiduciary duty, negligent misrepresentation, and violation of General Business Law Section 349, they seek to indirectly challenge the sufficiency of the Plan of Conversion which was approved by the Superintendent. Accordingly, dismissal of the amended complaint as an improper collateral attack was properly directed. The parties' remaining contentions need not be reached in light of this determination. A full-text copy of the Court's Feb. 9, 2022 Decision & Order is available at https://tinyurl.com/mr2n6j5v from Leagle.com. Brown Rudnick LLP, New York, NY (Richard L. Stone -- rstoneesq@aol.com -- and Sigmund S. Wissner-Gross -- swissnergross@brownrudnick.com -- of counsel), for the Appellants. Wollmuth Maher & Deutsch LLP, New York, NY (William A. Maher -- wmaher@wmd-law.com -- Michael C. Ledley -- mledley@wmd-law.com -- and Robert C. Penn, Jr. -- rpenn@shertremonte.com -- of counsel), for the Respondents. MEDNAX SERVICES: Perez FCRA Suit Removed to S.D. Florida -------------------------------------------------------- The case styled ALBERTO PEREZ, CREAH FISHLEY, and KATHY CARR, individually and on behalf of all others similarly situated v. MEDNAX SERVICES, INC., Case No. CACE-22-001446, was removed from the Circuit Court of the Seventeenth Judicial District in and for Broward County, Florida, to the U.S. District Court for the Southern District of Florida on February 17, 2022. The Clerk of Court for the Southern District of Florida assigned Case No. 0:22-cv-60359 to the proceeding. The case arises from the Defendant's alleged failure to provide pre-adverse action notice in violation of the Fair Credit Reporting Act. Mednax Services, Inc. is a physician services provider based in Florida. [BN] The Defendant is represented by: Martin B. Goldberg, Esq. Emily L. Pincow, Esq. LASH & GOLDBERG LLP Suite 1200, Miami Tower 100 Southeast Second Street Miami, FL 33131-2100 Telephone: (305) 347-4040 Facsimile: (305) 347-4050 E-mail: mgoldberg@lashgoldberg.com epincow@lashgoldberg.com MONMOUTH REAL ESTATE: Faces Fiduciary Breach Charges Over Merger ---------------------------------------------------------------- Monmouth Real Estate Investment Corporation disclosed in its Quarterly Report on Form 10-Q for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on February 4, 2022, that the company and its members of the board were named defendants alleging that they have violated fiduciary duties by misrepresenting or omitting allegedly material information in the proxy statement relating to the proposed merger with Industrial Logistics Properties Trust (ILPT). The company and the members of its Board of Directors are also defendants in a purported class action lawsuit filed by a purported shareholder that alleges, among other things, that the defendants violated fiduciary duties by misrepresenting or omitting allegedly material information in the proxy statement relating to the proposed merger with ILPT and seeks attorneys' fees and expenses in connection with disclosures related to a previous merger agreement the company had entered into with another party which was terminated after it failed to receive approval from the shareholders. Monmouth Real Estate Investment Corporation operates as a real estate investment trust (REIT) based in New Jersey MYOSTORM LLC: Paguada Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Myostorm, L.L.C. The case is styled as Josue Paguada, on behalf of himself and all others similarly situated v. Myostorm, L.L.C., Case No. 1:22-cv-01287 (S.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Myostorm -- https://www.myostorm.com/ -- massage balls are used for trigger point therapy, neck and back massage, pain relief, and exercise recovery.[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 NATIONAL FOOTBALL: Biden Comments on Hiring Practices Amid Lawsuit ------------------------------------------------------------------ Paul LeBlanc, writing for CNN, reports that President Joe Biden waded into the controversy surrounding the NFL's hiring practices in an interview that aired on Feb. 13, stating it's "just some generic decency" to ensure more head coaching opportunities for Black and minority candidates. "The whole idea that a league that is made up of so many athletes of color, as well as so diverse, that there's not enough African American qualified coaches to manage these NFL teams? It just seems to me that it's a standard that that they'd want to live up to," Biden told NBC News' Lester Holt in an interview that aired before the Super Bowl. "It's not a requirement of law, but it's a requirement I think of just some generic decency." The President's comments follow a federal class-action lawsuit filed by former Miami Dolphins head coach Brian Flores, who accused the league, along with three NFL franchises, of racial discrimination. Flores and other critics of the NFL are calling into question the effectiveness of the Rooney Rule, which was adopted in 2003 and has mandated teams conduct at least one head-coaching interview with a minority candidate. Only one of 28 head coaches employed in the NFL is Black, with four teams officially without a head coach, in a league where roughly 70% of the players are Black. That lone coach is the Steelers' Mike Tomlin, who won the Super Bowl in 2009. There are two other non-Black minority coaches -- one of Puerto Rican and Mexican descent and one of Lebanese descent. NFL Commissioner Roger Goodell admitted this month that the league has fallen short by "a long shot" in ensuring head coaching opportunities for Black and minority candidates and vowed to see if policies need to change. "I don't think you take anything off the table until you have people look at that, help us independently say, 'Is there something flawed with our process?'" he said of the league's embattled interview process. "And if there is, what can we do to resolve that and fix that?" he added. Biden told NBC that the NFL "should be held to a reasonable standard" given its broad influence. The President's comments echo his message from an interview that aired during halftime of the Super Bowl last year when he said, "There's innumerous incredibly qualified African American coaches out there" "I don't know how many, when I picked a Black woman to be vice president, I don't know how many hundreds of thousands of little girls just said, 'I can do that.' . . . It matters, it matters," the President told Westwood One at the time. "And I don't understand why they cannot find, because they exist, so many African American coaches that are qualified, that should be in the pros in my view." [GN] NATIONAL FOOTBALL: Flores to Amend Class Action Over Racism ----------------------------------------------------------- Matt Hladik, writing for The Spun, reports that former Dolphins head coach Brian Flores will reportedly amend his lawsuit against the NFL to include a claim against the Houston Texans. According to Pro Football Talk's Mike Florio, Flores will be adding a retaliation claim against the Texans in his ongoing lawsuit, which was filed on February 1. The class action suit alleges racist hiring practices in the NFL. Flores was reportedly a finalist for the Texans job, along with Josh McCown. At the last minute, Houston defensive coordinator Lovie Smith was revealed to be a candidate, and was eventually hired to be the franchise's new head coach. Shortly after news of Smith's hiring broke, Flores' lawyers Doug Wigdor and John Elefterakis released a statement claiming it was "obvious" that the Texans only passed on hiring Flores because he is suing the league. "Mr. Flores is happy to hear that the Texans have hired a Black head coach, Lovie Smith, as Mr. Flores' goal in bringing his case is to provide real opportunities for Black and minority candidates to be considered for coaching and executive positions within the NFL," the statement said. "However, we would be remiss not to mention that Mr. Flores was one of three finalists for the Texans' head coach position and, after a great interview and mutual interest, it is obvious that the only reason Mr. Flores was not selected was his decision to stand up against racial inequality across the NFL." In his original lawsuit, Flores cited the New York Giants and Denver Broncos for allegedly holding "sham" interviews for him in order to comply with the league's Rooney Rule. He also accused Dolphins owner Stephen Ross of offering him money to lose games during the 2019 season. Flores was let go by the Dolphins in January after three seasons as head coach. He went 24-25 with Miami, including a 19-14 mark in his 2020 and 2021. [GN] NESTLE HEALTHCARE: Weekes Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Nestle Healthcare Nutrition, Inc. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Nestle Healthcare Nutrition, Inc., Case No. 1:22-cv-01336 (S.D.N.Y., Feb. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Nestle HealthCare Nutrition, Inc. -- https://www.nestle.com/ -- provides nutritional solutions for people with specific dietary needs related to illnesses, diseases, and, age.[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 NEW YORK, NY: Mayor Issues Emergency Executive Order 35 ------------------------------------------------------- Eric Adams, New York City Mayor, on Feb. 13 issued Emergency Executive Order 35. WHEREAS, on September 2, 2021, the federal monitor in the Nunez use-of-force class action stated steps must be taken immediately to address the conditions in the New York City jails; and WHEREAS, excessive staff absenteeism among correction officers and supervising officers has contributed to a rise in unrest and disorder, and creates a serious risk to the necessary maintenance and delivery of sanitary conditions; access to basic services including showers, meals, visitation, religious services, commissary, and recreation; and prompt processing at intake; and WHEREAS, the Department of Correction's (DOC's) staffing shortages are affecting health operations, including the availability of escorts to bring patients to the clinic and of DOC personnel to staff the clinics; and WHEREAS, this Order is given to address the effects of excessive staff absenteeism and in order to address the conditions at DOC facilities; and WHEREAS, the state of emergency existing within DOC facilities, first declared in Emergency Executive Order No. 241, issued on September 15, 2021, and extended most recently by Emergency Executive Order No. 23, issued on January 29, 2022, remains in effect; NOW, THEREFORE, pursuant to the powers vested in me by the laws of the State of New York and the City of New York, including but not limited to the New York Executive Law, the New York City Charter and the Administrative Code of the City of New York, and the common law authority to protect the public in the event of an emergency: Section 1. I hereby direct that section 1 of Emergency Executive Order No. 31, dated February 8, 2022, is extended for five (5) days. Sec. 2. This Emergency Executive Order shall take effect immediately and shall remain in effect for five (5) days unless it is terminated or modified at an earlier date. [GN] NMCI MEDICAL: Kulik Suit Seeks Conditional Class Certification -------------------------------------------------------------- In the class action lawsuit captioned as BARBARA KULIK, JAMES ESKRIDGE, and MARY DUNNING GAROFALO individually and on behalf of all others similarly situated, v. NMCI MEDICAL CLINIC, INC ., a corporation, Case No. 5:21-cv-03495-BLF (N.D. Cal.), the Plaintiffs ask the Court to enter an order conditionally certifying a collective and notice, pursuant to 29 U.S.C. section 7 216(b). The Plaintiffs allege that NMCI Medical, for a period of time within the applicable statute of limitations, misclassified its hourly employees as exempt from the overtime protections of the Fair Labor Standards Act (FLSA). Additionally, the Plaintiffs allege that the same hourly employees were forced to perform, and did regularly perform throughout their employment, off-the-clock work. The Plaintiffs are former hourly employees of Defendant during the relevant time. The Defendant employed Plaintiff Kulik as an hourly nurse practitioner. Similarly, Defendant employed Plaintiffs Eskridge and Garofalo as hourly nurse practitioners. The Defendant holds itself out to the public as a multidisciplinary center with providing care for patients throughout Northern California. A copy of the Plaintiffs' motion dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3LDFilF at no extra charge.[CC] The Plaintiffs are represented by: Trenton R. Kashima, Esq. Jason J. Thompson, Esq. SOMMERS SCHWARTZ, PC 402 West Broadway, Suite 1760 San Diego, CA 92101 Telephone: (619) 762-2125 Facsimile: (619) 762-2127 E-mail: tkashima@sommerspc.com jtohompson@sommerspc.com NORFOLK SOUTHERN: Various Antitrust Cases Consolidated in DC ------------------------------------------------------------ Norfolk Southern Corporation disclosed in its Form 10-K Annual Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 4, 2022, that in 2007, various antitrust class actions filed against the company and other Class I railroads in various Federal district courts regarding fuel surcharges were consolidated in the District of Columbia by the Judicial Panel on Multidistrict Litigation. In 2012, the court certified the case as a class action. The defendant railroads appealed this certification, and the Court of Appeals for the District of Columbia vacated the District Court's decision and remanded the case for further consideration. On October 10, 2017, the District Court denied class certification. The decision was upheld by the Court of Appeals on August 16, 2019. Since that decision, various individual cases have been filed in multiple jurisdictions and also consolidated in the District of Columbia. Norfolk Southern Corporation is a transportation company based in Georgia. NORTEK SECURITY: Landy Files TCPA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Nortek Security & Control, LLC. The case is styled as Brennan Landy, individually and on behalf of all others similarly situated v. Nortek Security & Control, LLC, Case No. 3:22-cv-00210-BEN-JLB (S.D.N.Y., Feb. 16, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Nortek Control -- https://www.nortekcontrol.com/ -- is a global leader and solutions provider in the security, control, access, power/AV, health + wellness, and AI/analytics markets.[BN] The Plaintiff is represented by: Rory Pendergast, Esq. THE PENDERGAST LAW FIRM, PC 3019 Polk Avenue San Diego, CA 92104 Phone: (619) 344-8699 Fax: (619) 344-8701 Email: Rory@rorylaw.com NORTHSTAR LOCATION: Sao Files TCPA Suit in M.D. North Carolina -------------------------------------------------------------- A class action lawsuit has been filed against Northstar Location Services, LLC. The case is styled as Mary Sao, on behalf of herself and others similarly situated v. Northstar Location Services, LLC, Case No. 1:22-cv-01336 (M.D.N.C., Feb. 16, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. The Northstar Companies -- https://www.gotonls.com/ -- provides a full-service receivables debt collection solution.[BN] The Plaintiff is represented by: Wesley S. White, Esq. LAW OFFICES OF WESLEY S. WHITE 2300 E. 7th St. Suite 101 Charlotte, NC 28204 Phone: (980) 272-7169 Email: wes@weswhitelaw.com OTIS WORLD CORP: Faces Labor Complaint in Geraud Action ------------------------------------------------------- Otis World Corporation disclosed in its Form 10-K Annual Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on February 4, 2022, that a putative class action lawsuit was filed against the company seeking to recover monetary damages, as well as related declaratory and equitable relief. On August 12, 2020, a putative class action lawsuit, (Geraud Darnis et al. v. Raytheon Technologies Corporation et al.), was filed in the United States District Court for the District of Connecticut against Otis, Raytheon Technologies Corporation (RTX), Carrier, each of their directors, and various incentive and deferred compensation plans. On September 13, 2021, plaintiffs filed an amended complaint against the three company defendants only. The named plaintiffs are former employees of UTC and its current and former subsidiaries, including Otis and Carrier. They seek to recover monetary damages, as well as related declaratory and equitable relief, based on claimed decreases in the value of long-term incentive awards and deferred compensation under nonqualified deferred compensation plans allegedly caused by the formula used to calculate the adjustments to such awards and deferred compensation from RTX, Carrier, and Otis following the spin-offs of Carrier and Otis and the subsequent combination of UTC and Raytheon Company. Otis World Corporation is an elevator and escalator manufacturing, installation and service company based in Connecticut. OUTDOOR GEAR EXCHANGE: Weekes Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against The Outdoor Gear Exchange, Inc. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. The Outdoor Gear Exchange, Inc., Case No. 1:22-cv-01283 (S.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Outdoor Gear Exchange, Inc. -- https://www.gearx.com/ -- operates as an outdoor sports 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 PEOPLECONNECT INC: Camacho Files Suit in S.D. California -------------------------------------------------------- A class action lawsuit has been filed against PeopleConnect, Inc. The case is styled as Jose Medina Camacho, Rhonda Cotta, on behalf of themselves and all others similarly situated v. PeopleConnect, Inc., a Delaware corporation; Intelius LLC, a Delaware limited liability company; The Control Group Media Company, LLC; Case No. 3:22-cv-00209-BAS-JLB (S.D. Cal., Feb. 15, 2022). The nature of suit is stated as Other Personal Property. Peopleconnect, Inc. -- https://peopleconnect.us/ -- provides online social network services. The Company offers basic people search, list management, criminal records, employee screening, human resources background checks, and identity theft protection services.[BN] The Plaintiffs are represented by: Lawrence Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Fax: (925) 407-2700 Email: ltfisher@bursor.com PERDUE FOODS: Paguada Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Perdue Foods LLC. The case is styled as Josue Paguada, on behalf of himself and all others similarly situated v. Perdue Foods LLC, Case No. 1:22-cv-01293 (S.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Perdue Farms -- https://www.perdue.com/ -- is the parent company of Perdue Foods and Perdue AgriBusiness, based in Salisbury, Maryland. Perdue Foods is a major chicken, turkey, and pork processing company in the United States.[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 PHH MORTGAGE: S.D. Florida Narrows Claims in Salter Class Suit -------------------------------------------------------------- In the case, WILLIAM SALTER, et al., Plaintiffs v. PHH MORTGAGE CORP., Defendant, Case No. 21-62318-CIV-ALTONAGA/Strauss (S.D. Fla.), Judge Cecilia M. Altonaga of the U.S. District Court for the Southern District of Florida granted in part and denied in part the Defendant's Motion to Dismiss. I. Background The case is a putative class action brought against the Defendant, a non-bank residential mortgage servicer. The Plaintiffs own homes in Florida that are subject to identical Mortgages serviced by the Defendant. The Mortgages contain "Notice of Grievance" provisions requiring the Plaintiffs to provide notice of a grievance and an opportunity to cure the grievance before filing suit. The Defendant services home loans according to uniform practices, including the issuance of uniform Payoff Statements that inform consumers about how much they owe the Defendant. These Payoff Statements include three allegedly improper fees: (1) a "Bank Wire Fee"; (2) a "Recording Fee"; and (3) a "Recoverable Balance." The Plaintiffs seek damages and injunctive relief to redress the Defendant's allegedly unfair and deceptive practices. They assert four claims: violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692e (Count I); violation of the FDCPA, 15 U.S.C. Section 1692f (Count II); violation of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. Sections 501.201 et seq. (Count III); and violation of the Florida Consumer Collection Practices Act ("FCCPA"), Fla. Stat. Section 559.72(9) (Count IV). The Defendant seeks dismissal of the Complaint for failure to state claims for relief on Dec. 22, 2021. II. Discussion The Defendant moves for dismissal on four grounds: (1) the Plaintiffs failed to comply with the mandatory notice-and-cure provision contained in the Mortgages; (2) Florida's litigation privilege bars Joseph's claims; (3) the fees were not deceptive or unfair; and (4) Plaintiffs' FDUTPA claims fail because Defendant's servicing activities do not constitute trade or commerce. After examining the first two grounds in turn, Judge Altonaga analyzes the third and fourth grounds together. 1. The Notice of Grievance provision. The Defendant maintains the Court should dismiss the Complaint in its entirety because the Plaintiffs allege no facts showing compliance with the condition precedent contained in the Notice of Grievance. The Plaintiffs insist the provision cannot apply to their claims because "there are no allegations that the contract has been breached." While the Plaintiffs are wrong -- they do plead the Mortgages have been breached -- Judge Altonaga cannot dismiss the Complaint under Rule 12(b)(6) because of an ostensible failure to meet a condition precedent. She examines the terms of the Mortgages and whether the claims made are subject to the Notice of Grievance provisions. A. Bank Wire Fee The Plaintiffs allege that when consumers make mortgage payments by wire transfer, the Defendant "charges an additional $25 to the borrower, to receive the wire, which is a fee that is not authorized by the mortgage agreement." They also allege that the Defendant is fully aware and has actual knowledge that the standard mortgage loan agreements it services do not authorize the charging of the 'Bank Wire Fee.' Elsewhere in the Complaint, the Plaintiffs cite Paragraph 14 of the Mortgages, which states: "The absence of express authority in this Mortgage to charge a specific fee to Borrower will not be construed as a prohibition on the charging of such fee. Lender may not charge fees that are expressly prohibited by this Mortgage or by Applicable Law." The Plaintiffs claim that Paragraph 14 "prohibits the Defendant from charging estimated fees, unauthorized fees, or excessive fees." Thus, the Plaintiffs' claims arising from the allegedly unauthorized Bank Wire Fee "clearly relate to the Mortgages" and are subject to the Notice of Grievance provision. B. Recording Fee The Plaintiffs assert the release-of-mortgage document Defendant prepares and records once a consumer has fully paid off a mortgage is a uniform one-page document, but the Defendant charges consumers for the cost of a two-page document. They claim that the Defendant "deceptively retains $8.50 to $9.50 of the Recording Fee for itself as profit instead of passing on the entire amount to the third-party county recorders." They further allege that the Defendant "is fully aware and has actual knowledge that the standard mortgage loan agreements it services do not authorize the charging of excessive fees for services that were not performed such as the 'Recording Fee.'" Given this allegation, Judge Altonaga finds that the Plaintiffs' claims related to the Recording Fee clearly suffer from the same problem as the Bank Wire Fee because the imposition of unauthorized fees is prohibited by Paragraph 14 of the Mortgages. There is no doubt that the Notice of Grievance provision applies to the Plaintiffs' claims related to the Recording Fee. C. Recoverable Balance The Plaintiffs allege that the Defendant's uniform Payoff Statement "contains a line item of charges which are completely vague and identified only as 'Recoverable Balance.'" The Plaintiffs assert that the Defendant "is fully aware and has actual knowledge that the standard mortgage loan agreements it services do not authorize the charging of fees which are estimates or not actually incurred such as those contained in the 'Recoverable Balance.'" Again, Judge Altonaga holds that the Plaintiffs' claims are subject to the Notice of Grievance provision because they relate to Defendant's duties owed under Paragraph 14 of the Mortgages. Leaving no room for doubt, the Plaintiffs explicitly allege the charging of the non-itemized Recoverable Balance breaches several Mortgage provisions. Nonetheless, dismissal based on the Notice of Grievance provision is not warranted. 2. The litigation privilege. Although Salter and Joseph's individual allegations are essentially identical, the Defendant argues only that Joseph's claims are barred by Florida's litigation privilege. To prove this, it requests the Court takes judicial notice of a docket in a state-court foreclosure action pending between Joseph and her lender. It insists all of Joseph's claims must be dismissed because it sent the Payoff Statement to her during the state foreclosure proceedings. But merely establishing there were pending foreclosure proceedings when the Payoff Statement was sent does not conclusively establish the litigation privilege applies. The litigation immunity privilege is an affirmative defense. Nothing in the Complaint discusses Joseph's pending foreclosure proceedings, let alone connects the Payoff Statement to it. 3. The statutory frameworks. The Defendant argues the case should be dismissed because the Plaintiffs fail to state claims under the FDCPA, the FCCPA, and the FDUTPA. A. Recording Fee The Defendant contends the Recording Fee is authorized and not excessive because the Mortgages allow it to charge the Plaintiffs for any recordation costs so long as "the fee is paid to a third party for services rendered." But the Plaintiffs are claiming the Defendant charges in excess of any third-party services rendered and keeps a portion "for itself as profit instead of passing on the entire amount to the third-party county recorders." Taking the Plaintiffs' allegation as true, Judge Altonaga holds that such a practice would be a deceptive representation of the amount of a debt, in violation of 15 U.S.C. section 1692e; an unfair or unconscionable means of attempting to collect a debt, in violation of 15 U.S.C. section 1692f; and the assertion of a legal right Defendant knows is not legitimate, in violation of section 559.72(9), Florida Statutes. The Plaintiffs' FDCPA claims survive because the least sophisticated consumer would likely not know that the most the Recording Fee would actually cost is $10. And their FCCPA claims are sound because Defendant is asserting a legal right to receive payment it knows is in excess of what it will actually pass through to the county recording office. Further, because the Plaintiffs successfully plead violations of the FDCPA and FCCPA, their FDUTPA claim survives as well. In short, each of the Plaintiffs' claims related to the allegedly excessive Recording Fee survive. B. Bank Wire Fee The Defendant maintains there is nothing deceptive or unfair about the $25 fee it charges for using its bank-wire service. Judge Altonaga agrees. She holds that the Plaintiffs' claims related to the optional Bank Wire Fee are dismissed. She says, the Plaintiffs' claim that "a reasonable consumer or least sophisticated consumer would find" the bank-wire transfer not optional is wholly unsupported. The Payoff Statement even explains how to submit payment using the other options on the same page where it says bank-wire transfers are preferred. There also is no indication that the Defendant is asserting a nonexistent legal right in violation of the FCCPA. Finally, because there are no predicate statutory violations, and because there is nothing unfair or deceptive about the optional Bank Wire Fee, the Plaintiffs' FDUTPA claim fails. C. Recoverable Balance According to the Plaintiffs, "the non-itemized amorphous charge of 'Recoverable Balance' is misleading as it does not give consumers the ability to knowledgably assess the validity of the claimed debt." They further allege the Defendant was fully aware and had actual knowledge that the charging of the Recoverable Balance was in direct breach of three provisions of the Mortgages. Based on these assertions and a review of the Payoff Statements, Judge Altonaga holds that the Plaintiffs have plausibly alleged FDCPA and FCCPA claims arising from the Recoverable Balance. More importantly, she simply cannot determine whether any unauthorized or excessive fees were in fact included in the Recoverable Balance. If they were -- as alleged -- then the Defendant likely would have had actual knowledge that the debts were illegitimate. Consequently, the Plaintiffs' FCCPA claims move forward as well. To recap, Judge Altonaga concludes that each of the Plaintiffs' FDCPA and FCCPA claims arising from the non-itemized Recoverable Balance survive. III. Conclusion For the foregoing reasons, Judge Altonaga granted in part and denied in part the Defendant's Motion to Dismiss. The Plaintiffs' claims related to the Bank Wire Fee are dismissed. A full-text copy of the Court's Feb. 9, 2022 Order is available at https://tinyurl.com/2p9bv559 from Leagle.com. PHILLIPS ENTERTAINMENT: Weekes Files ADA Suit in S.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against Phillips Entertainment LLC. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Phillips Entertainment LLC, Case No. 1:22-cv-01279 (S.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Phillips family has deep roots in Texas Tourism dating back to 1964 with Gene Phillips and Aquarena Springs in San Marcos, Texas.[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 PORTFOLIO RECOVERY: Miller FDCPA Suit Removed to D. New Jersey -------------------------------------------------------------- The case captioned as Latonya Miller, Randa A. Husain, on behalf of themselves and those similarly situated v. Portfolio Recovery Associates, LLC, John Does 1 to 10, Case No. ESX-L-009897-21 was removed from the Essex County Superior Court, to the U.S. District Court for District of New Jersey on Feb. 4, 2022. The District Court Clerk assigned Case No. 2:22-cv-00586-ES-ESK to the proceeding. The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Portfolio Recovery Associates LLC -- https://www.portfoliorecovery.com/ -- a subsidiary of PRA Group, Inc., specializes in working with people in debt repayment.[BN] The Plaintiffs are represented by: Yongmoon Kim, Esq. KIM LAW FIRM, LLC 411 Hackensack Ave Ste 701 Hackensack, NJ 07601 Phone: (201) 273-7117 Fax: (201) 273-7117 Email: ykim@kimlf.com The Defendants are represented by: Philip Andrew Goldstein, Esq. MCGUIRE WOODS LLP 1251 Avenue of the Americas, 20th Floor New York, NY 10020 Phone: (212) 548-2167 Email: pagoldstein@mcguirewoods.com PROBUILD COMPANY: Gonzalez FCRA Suit Removed to C.D. California --------------------------------------------------------------- The case styled JAIME GONZALEZ, individually and on behalf of all others similarly situated v. PROBUILD COMPANY LLC, doing business as DIXIELINE LUMBER & HOME CENTERS; BUILDERS FIRSTSOURCE, INC.; and DOES 1-50, inclusive, Case No. CV-RI-2105278, was removed from the Superior Court of the State of California, County of Riverside, to the U.S. District Court for the Central District of California on February 17, 2022. The Clerk of Court for the Central District of California assigned Case No. 5:22-cv-00315-CJC-SHK to the proceeding. The case arises from the Defendants' alleged violations of the Fair Credit Reporting Act, the Investigative Consumer Reporting Agencies Act, the California Consumer Credit Reporting Agencies Act, and the California's Unfair Competition Law including failure to make proper disclosures, failure to obtain proper authorization, failure to pay minimum wages, failure to pay overtime owed, failure to provide lawful meal periods, failure to authorize and permit rest periods, failure to timely pay wages during employment, failure to timely pay wages owed upon separation, knowing and intentional failure to comply with itemized wage statement provisions, and unfair competition. ProBuild Company LLC, doing business as Dixieline Lumber & Home Centers, is a supplier of lumber and building materials, headquartered in Denver, Colorado. Builders FirstSource, Inc. is a manufacturer and supplier of building materials, headquartered in Dallas, Texas. [BN] The Defendants are represented by: Matthew B. Golper, Esq. Daniel J. Corbett, Esq. BALLARD ROSENBERG GOLPER & SAVITT, LLP 15760 Ventura Boulevard, Eighteenth Floor Encino, CA 91436 Telephone: (818) 508-3700 Facsimile: (818) 506-4827 E-mail: mgolper@brgslaw.com dcorbett@brgslaw.com PROFESSIONAL BUSINESS: Judge Recommends Dismissal of Class Action ----------------------------------------------------------------- Kathryn Cahoy, Esq., and Tomoaki Takaki, Esq., of Covington & Burling, in an article for Mondaq, report that a magistrate judge in the Western District of New York recently recommended dismissing the putative class action Tassmer et al v. Professional Business Systems, concluding that any risk of identity theft or other injury was too "speculative" to show standing. The recommendation is in line with numerous other federal circuit and district courts similarly requiring plaintiffs in data breach cases to show concrete harm, not merely a risk of future harm. This recommendation, if adopted, will be another helpful precedent for companies facing class action lawsuits as a result of a data breach or cyber hack. In December 2020, hackers accessed data held by Professional Business Systems (doing business as Practicefirst Medical Management Solutions and PBS Medcode Corporation), stealing information on approximately 1.2 million patients of medical providers who used Practicefirst's medical management services. The stolen data reportedly included sensitive personal information, such as Social Security numbers, bank account and credit/debit card information, and medical diagnoses. Practicefirst was then subjected to a ransomware attack, where computer system access was blocked until a fee to restore access was paid. The four plaintiffs brought a putative class action after being notified of the data breach in June and July 2021. They alleged injuries relating to diminution of value of their personal information, violation of privacy, and imminent injury from the increased risk of identity theft and fraud. They also alleged they had spent time and resources ensuring the security of their accounts. Magistrate Judge Michael Roemer concluded the plaintiffs lacked Article III standing to sue because they had not alleged any actual or imminent threat of future harm and a separate concrete harm. The judge first noted that several cases, including the U.S. Supreme Court's June 2021 decision in TransUnion LLC v. Ramirez, made clear that a plaintiff alleging a risk of future harm must also allege "a separate, concrete harm that was caused by exposure to the imminent risk and is proportional to the actual likelihood of the future harm occurring." The judge then analyzed plaintiffs' claims under the Second Circuit's three-factor test for standing in data breach cases from McMorris v. Carlos Lopez and Associates, LLC. The judge concluded that the primary purpose for the hack was not to steal data; rather, it was a "garden-variety ransomware attack." Thus, plaintiffs had not alleged a targeted attempt or clear intent to use the data for identity theft or fraud. Further, none of the plaintiffs had yet experienced any fraud or identity theft. The sensitive nature of the stolen information did not "by itself" demonstrate a "substantial risk of future identity theft" or fraud. Because there was no such substantial risk, plaintiffs' time and resources taken to protect their accounts was manufactured in anticipation of non-imminent harm. The judge also decided that plaintiffs lacked standing based on any diminution in value of their data, since they never specified how the information was devalued or that they sold their data for a decreased price. Finally, the judge rejected any theory of standing based on a common-law tort of violation of privacy rights. [GN] RAGAN & RAGAN: Lloyd Files FDCPA Suit in N.D. Georgia ----------------------------------------------------- A class action lawsuit has been filed against Ragan & Ragan, P.C., et al. The case is styled as Cynthia Lloyd, individually and on behalf of all others similarly situated v. Ragan & Ragan, P.C., Second Round Sub, LLC, Case No. 1:22-cv-00656-LMM-CMS (N.D. Ga., Feb. 16, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. The Ragan & Ragan, PC -- https://raganlaw.com/ -- law firm represents commercial, retail and medical creditors.[BN] The Plaintiff is represented by: Misty Oaks Paxton, Esq. THE OAKS FIRM 3895 Brookgreen Pt. Decatur, GA 30034 Phone: (404) 500-7861 Email: attyoaks@yahoo.com REMRISE INC: Scheduling Order Entered in Tavarez Class Suit ----------------------------------------------------------- In the class action lawsuit captioned VICTORIANO TAVAREZ, Individually, and On Behalf of All Others Similarly Situated v. REMRISE, INC., Case No. Case 1:21-cv-09941-JPO (S.D.N.Y.), the Hon. Judge Paul Oetken entered a civil case management plan and scheduling order as follows: -- All fact discovery shall be completed June 10, 2022 no later than: -- All expert discovery, including expert July 25, 2022 depositions, shall be completed no later than: -- Plaintiff's expert disclosures June 10, 2022 pursuant to Fed. R. Civ. P. 26(a)(2) shall be made on or before: -- The Defendant’s expert disclosures June 24, 2022 pursuant to Fed. R. Civ. P. 26(a)(2) shall be made on or before: -- The parties shall be ready for Sept. 8, 2022 trial on: Remrise is a health, wellness, and fitness company that specializes in manufacturing plant-powered sleep formulas and tools. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3gQF5gG at no extra charge.[CC] The Plaintiff is represented by: William Downes, Esq. MIZRAHI & KROUB LLP www.mizrahikroub.com 200 Vesey St., 24th Floor New York, NY 10281 Telephone: (212) 595-6200 Facsimile: (212) 595-9700 E-mail: william.downes@gmail.com. The Defendant is represented by: Stephen James Barrett, Esq. Jura Christine Zibas, Esq. WILSON ELSER New York, NY Telephone: (212) 915-5479 Facsimile: (212) 490-3038 E-mail: stephen.barrett@wilsonelser.com jura.zibas@wilsonelser.com RESURGENT CAPITAL: Bid for More Time to Complete Discovery OK'd --------------------------------------------------------------- In the class action lawsuit captioned as Fonteboa v. Resurgent Capital Services L.P., et al., Case No. 1:21-cv-02293 (E.D.N.Y.), the Hon. Judge Taryn A. Merkl entered an order on motion for extension of time to complete discovery. -- The deadline for the initiation April 30, 2022 of Rule 23 Class certification motion practice is: -- The parties are directed to file May 28, 2022 a proposed joint proposed pre-trial order by: The suit alleges violation of the Fair Debt Collection Practices Act. Resurgent Capital provides financial services. The Company manages debt portfolios for credit grantors and debt buyers.[CC] RETAILERX INC: Weekes Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Retailerx, Inc. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Retailerx, Inc., Case No. 1:22-cv-01285 (S.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. RetailerX, Inc. is incorporated in the state of Delaware.[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 REWIND COMPANY: Fischler Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against The Rewind Company. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated v. The Rewind Company doing business as: Rewind, Case No. 1:22-cv-00842 (E.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rewind -- https://rewind.com/ -- builds apps that protect critical SaaS and cloud data.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170-1830 Phone: (212) 764-7171 Email: chris@lipskylowe.com RITE AID: Lemus Files Suit in C.D. California --------------------------------------------- A class action lawsuit has been filed against Rite Aid Corporation. The case is styled as Christian Lemus, individually and on behalf of all others similarly situated v. Rite Aid Corporation, Case No. 8:22-cv-00253 (C.D. Cal., Feb. 16, 2022). The nature of suit is stated as Contract Product Liability. Rite Aid Corporation -- http://www.riteaid.com/-- is an American drugstore chain based in Camp Hill, Pennsylvania.[BN] The Plaintiff is represented by: Jonas Jacobson, Esq. DOVEL AND LUNER LLP 201 Santa Monica Boulevard Suite 600 Santa Monica, CA 90401 Phone: (310) 656-7066 Fax: (310) 656-7069 Email: jonas@dovel.com ROBBINS PROPERTY: Perez Suit Removed to S.D. Florida ---------------------------------------------------- The case captioned as Manuel Perez, individually and on behalfof all others similarly situated v. Robbins Property Associates LLC, Case No. 22-001844-CA-01 was removed from the 11th Judicial Circuit Court, to the U.S. District Court for Southern District of Florida on Feb. 15, 2022. The District Court Clerk assigned Case No. 1:22-cv-20467-KMW to the proceeding. The nature of suit is stated as Insurance. Robbins Property Associates (RPA) -- https://www.robbinspropertyllc.com/ -- is a private real estate company.[BN] The Plaintiff is represented by: Andrew John Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE P.A. 14 N.E. 1st Ave., Ste. 1205 Miami, FL 33132 Phone: (305) 479-2299 Fax: (786) 623-0915 Email: ashamis@sflinjuryattorneys.com gberg@shamisgentile.com - and - Scott Adam Edelsberg, Esq. EDELSBERG LAW PA 20900 NE 30th Ave., 417 Aventura, FL 33180 Phone: (305) 975-3320 Email: scott@edelsberglaw.com The Defendant is represented by: Alan Gary Kipnis, Esq. GOVERNMENT LAW GROUP, PLLC 200 S. Andrews Avenue, Suite 601 Fort Lauderdale, FL 33301 Phone: (954) 909-0592 Fax: (954) 909-0599 Email: akipnis@govlawgroup.com - and - Payton William Henry Poliakoff, Esq. COLE, SCOTT AND KISSANE P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, FL 33401 Phone: (561) 681-5540 Fax: (561) 683-8977 SEA MAR COMMUNITY HEALTH: Barnes Suit Removed to W.D. Washington ---------------------------------------------------------------- The case captioned as Maria Barnes, Derek Gannon, individually and on behalf of all others similarly situated v. Sea Mar Community Health Centers, Case No. 21-00002-1506399 SEA was removed from the King County Superior Court, to the U.S. District Court for Western District of Washington on Feb. 16, 2022. The District Court Clerk assigned Case No. 2:22-cv-00181 to the proceeding. The nature of suit is stated as Other P.I. Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a community-based organization dedicated to underserved communities & quality, integrated care.[BN] The Plaintiffs are represented by: Alexander F Strong, Esq. BENDICH STOBAUGH & STRONG 126 NW Canal Street, Ste. 100 Seattle, WA 98107 Phone: (206) 622-3536 Email: astrong@bs-s.com The Defendant is represented by: Aryn Seiler, Esq. Randy J. Aliment, Esq. Kathleen A. Nelson, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE) 1111 THIRD AVE STE 2700 SEATTLE, WA 98101 Phone: (206) 876-2953 Fax: (206) 436-2030 Email: aryn.seiler@lewisbrisbois.com randy.aliment@lewisbrisbois.com kathleen.nelson@lewisbrisbois.com SEA MAR COMMUNITY HEALTH: Hall Suit Removed to W.D. Washington -------------------------------------------------------------- The case captioned as Alan Hall, individually and on behalf of all others similarly situated v. Sea Mar Community Health Centers, Case No. 21-00002-15130-9 SEA was removed from the King County Superior Court, to the U.S. District Court for Western District of Washington on Feb. 16, 2022. The District Court Clerk assigned Case No. 2:22-cv-00184 to the proceeding. The nature of suit is stated as Other P.I. Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a community-based organization dedicated to underserved communities & quality, integrated care.[BN] The Plaintiff is represented by: Michael C. Subit, Esq. FRANK FREED SUBIT & THOMAS 705 2nd Ave., Ste. 1200 Seattle, WA 98104-1729 Phone: (206) 682-6711 Fax: (206) 682-0401 Email: msubit@frankfreed.com The Defendant is represented by: Aryn Seiler, Esq. Randy J. Aliment, Esq. Kathleen A. Nelson, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE) 1111 Third Ave., Ste. 2700 Seattle, WA 98101 Phone: (206) 876-2953 Fax: (206) 436-2030 Email: aryn.seiler@lewisbrisbois.com randy.aliment@lewisbrisbois.com kathleen.nelson@lewisbrisbois.com SEA MAR COMMUNITY HEALTH: Maynor Suit Removed to W.D. Washington ---------------------------------------------------------------- The case captioned as Daniel Maynor, Jr., Tracy Fox, on themselves own behalf and on behalf of those similarly situated v. Sea Mar Community Health Centers, Case No. 22-00002-01713-9 was removed from the King County Superior Court, to the U.S. District Court for Western District of Washington on Feb. 16, 2022. The District Court Clerk assigned Case No. 2:22-cv-00187 to the proceeding. The nature of suit is stated as Other P.I. Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a community-based organization dedicated to underserved communities & quality, integrated care.[BN] The Plaintiff is represented by: Brian C. Gudmundson, Esq. Jason P. Johnston, Esq. Michael J. Laird, Esq. Rachel Kristine Tack, Esq. ZIMMERMAN REED LLP (MN) 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 Phone: (612) 341-0400 Email: brian.gudmundson@zimmreed.com jason.johnston@zimmreed.com michael.laird@zimmreed.com rachel.tack@zimmreed.com - and - Caleb L. Marker, Esq. ZIMMERMAN REED LLP (CA) 6420 Wilshire Blvd., Ste. 1080 Los Angeles, CA 90048 Phone: (877) 500-8780 Email: caleb.marker@zimmreed.com - and - Christopher D. Jennings, Esq. JOHNSON FIRM 610 President Clinton Ave., Ste. 300 Little Rock, AR 72201 Phone: (501) 372-1300 Email: chris@yourattorney.com The Defendant is represented by: Aryn Seiler, Esq. Randy J. Aliment, Esq. Kathleen A. Nelson, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE) 1111 Third Ave., Ste. 2700 Seattle, WA 98101 Phone: (206) 876-2953 Fax: (206) 436-2030 Email: aryn.seiler@lewisbrisbois.com randy.aliment@lewisbrisbois.com kathleen.nelson@lewisbrisbois.com SEA MAR COMMUNITY HEALTH: Summers Suit Removed to W.D. Washington ----------------------------------------------------------------- The case captioned as Jeffrie Alan Summers, II, on behalf of himself and all others similarly situated v. Sea Mar Community Health Centers, Case No. 22-00002-00773-7 was removed from the King County Superior Court, to the U.S. District Court for Western District of Washington on Feb. 16, 2022. The District Court Clerk assigned Case No. 2:22-cv-00183 to the proceeding. The nature of suit is stated as Other P.I. Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a community-based organization dedicated to underserved communities & quality, integrated care.[BN] The Plaintiffs are represented by: John A. Yanchunis, Esq. Ryan D. Maxey, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP (FL) 201 N Franklin St 7th FL Tampa, FL 33602 Phone: (813) 223-5505 Email: jyanchunis@forthepeople.com rmaxey@forthepeople.com - and - Thomas E. Loeser, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1301 2nd Avenue, Ste. 2000 Seattle, WA 98101 Phone: (206) 623-7292 Fax: (206) 623-0594 Email: toml@hbsslaw.com The Defendant is represented by: Aryn Seiler, Esq. Randy J. Aliment, Esq. Kathleen A. Nelson, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE) 1111 Third Ave., Ste. 2700 Seattle, WA 98101 Phone: (206) 876-2953 Fax: (206) 436-2030 Email: aryn.seiler@lewisbrisbois.com randy.aliment@lewisbrisbois.com kathleen.nelson@lewisbrisbois.com SEA MAR COMMUNITY HEALTH: Waliany Suit Removed to W.D. Washington ----------------------------------------------------------------- The case captioned as Lynette Waliany, on behalf of herself and all others similarly situated v. Sea Mar Community Health Centers, Case No. 21-00002-16813-9 was removed from the King County Superior Court, to the U.S. District Court for Western District of Washington on Feb. 16, 2022. The District Court Clerk assigned Case No. 2:22-cv-00182 to the proceeding. The nature of suit is stated as Other P.I. Sea Mar Community Health Centers -- https://www.seamar.org/ -- is a community-based organization dedicated to underserved communities & quality, integrated care.[BN] The Plaintiffs are represented by: Samuel J Strauss, Esq. TURKE & STRAUSS LLP 613 Williamson St., Ste. 201 Madison, WI 53703 Phone: (608) 237-1775 Fax: (608) 509-4423 Email: sam@turkestrauss.com - and - Walter M Smith, Esq. SMITH & DIETRICH LAW OFFICES, PLLC 3905 Martin Way East, Ste F Olympia, WA 98506 Phone: (360) 915-6952 Email: walter@smithdietrich.com The Defendant is represented by: Aryn Seiler, Esq. Randy J. Aliment, Esq. Kathleen A. Nelson, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE) 1111 Third Ave., Ste. 2700 Seattle, WA 98101 Phone: (206) 876-2953 Fax: (206) 436-2030 Email: aryn.seiler@lewisbrisbois.com randy.aliment@lewisbrisbois.com kathleen.nelson@lewisbrisbois.com SEAWORLD PARKS: Jones Labor Suit Removed to S.D. California ----------------------------------------------------------- The case styled JANEEN JONES, MARIA GLANCY, GRACE YAMBRACH, and KRISTY PRATHER, individually and on behalf of all others similarly situated v. SEAWORLD PARKS & ENTERTAINMENT, INC.; SEA WORLD LLC; and DOES 1-50, inclusive, Case No. 37-02018-000570057055-CU-OE-CTL, was removed from the Superior Court of the State of California, County of San Diego, to the U.S. District Court for the Southern District of California on February 17, 2022. The Clerk of Court for the Southern District of California assigned Case No. 3:22-cv-00218-BAS-JLB to the proceeding. The case arises from the Defendants' alleged violations of the California Labor Code and the California's Unfair Competition Law including failure to recall laid-off employees, age discrimination, constructive discharge, failure to pay vested vacation wages upon termination, failure to pay minimum wages, failure to pay overtime wages, failure to provide lawful meal periods, failure to authorize and permit rest periods, failure to timely pay wages upon termination, failure to provide accurate itemized wage statements, and unfair competition. SeaWorld Parks & Entertainment, Inc. is an American theme park and entertainment company, headquartered in Orlando, Florida. Sea World LLC is an operator of amusement parks and kiddie parks, headquartered in Orlando, Florida. [BN] The Defendants are represented by: Aaron H. Cole, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Telephone: (213) 239-9800 Facsimile: (213) 239-9045 E-mail: aaron.cole@ogletree.com - and – Susan M. Wilson, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 3430 E. Sunrise Drive, Suite 220 Tucson, AZ 85718 Telephone: (520) 544-0300 Facsimile: (520) 544-9675 E-mail: susan.wilson@ogletree.com SEND A CAKE: Weekes Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Send A Cake LLC. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Send A Cake LLC, Case No. 1:22-cv-01277 (S.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Send A Cake -- https://sendacake.com/ -- is the ultimate birthday cake and gift delivery 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 SENIOR LIFE: Bid to Dismiss Miholich Action Tossed --------------------------------------------------- In the class action lawsuit captioned as KYLE MIHOLICH, Individually and on Behalf of All Others Similarly Situated, v. SENIOR LIFE INSURANCE COMPANY, Case No. 3:21-cv-01123-WQH-AGS (S.D. Cal.), the Hon. Judge William Q. Hayes entered an order denying as premature the Defendant's motion to dismiss and or strike. The Defendant contends that Plaintiff's class allegations should be stricken for the following reasons: (1) the class definition contained in the FAC is fail safe; (2) individualized inquiries into issues such as consent predominate over common questions; and (3) the proposed class is overbroad. Plaintiff contends that striking class allegations at 13 stage in the litigation is premature, that membership in the proposed class can be determined through objective criteria, that consent is not a criterion for class membership, that the class is not overbroad, and that the court is able to modify the class definition at later proceedings. Under Rule 12(f), the court may strike "any insufficient defense or any redundant, immaterial, impertinent or scandalous matter." Fed. R. Civ. P. 12(f). Striking class allegations prior to discovery and a motion for class certification is rare and generally disfavored. appropriate where "the requirements of commonality, typicality and adequacy cannot possibly be met." The decision of whether to grant a motion to 25 strike lies within the sound discretion of the district court. The class issues raised by Defendant in this case are appropriately considered at class certification proceedings. On June 16, 2021, the Plaintiff Miholich filed a Class Action Complaint against Senior Life, arising from Defendant's alleged violations of the Telephone Consumer Protection Act of 1991 ("TCPA"). On September 7, 2021, Plaintiff filed a First Amended Class Action Complaint. On September 21, 2021, Defendant filed a Motion to Dismiss and/or Strike the FAC pursuant to Rules 12(b)(1), 12(b)(6), 12(f), and 23 of the Federal Rules of Civil Procedure. On October 13, 2021, Plaintiff filed an Opposition to the Motion to Dismiss and/or Strike. On October 20, 2021, the Defendant filed a Reply. The Plaintiff is an individual who resides in San Diego, California. On or about October 27, 2006, Plaintiff's cellular telephone number ending in 5823 was added to the National Do-Not-Call Registry. The Defendant is a corporation headquartered in Georgia that conducts business in San Diego. "Defendant has sent multiple text messages to Plaintiff on his cellular telephone, between April 27, 2021 and May 12, 2021, from the telephone numbers (855) 383-4711 and (855) 354-7422." Senior Life operates as an insurance company. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3HXXOD7 at no extra charge.[CC] SERVICE KING: Moniz Bid for Class Cert Tossed w/o Prejudice ------------------------------------------------------------ In the class action lawsuit captioned as ERICA MONIZ, et al., v. SERVICE KING PAINT & BODY, LLC, Case No. 5:18-cv-07372-EJD (N.D. Cal.), the Hon. Judge Edward J. Davila entered an order denying without prejudice the motion for class certification. Should Plaintiffs file a renewed motion for class certification, the parties need not address the Rule 23(a)(2) factors the Court has already determined Plaintiffs to have satisfied. Future briefing from both parties should be organized in a manner that makes clear which Rule 23(a) or (b) factor is being addressed, with appropriate support and authority for their position rather than the piecemeal organization presented to the Court on the current motion, the Court says. The Plaintiffs Erica Moniz, Hagop Ajemyan, Hugo Gutierrez, and Philip Gabriel initiated this wage and hour putative class action against Defendant Service King. The Plaintiffs are former Service King employed as Body Technicians and Painters. During the relevant period, Service King paid Body Technicians and Painters an hourly wage, as well as incentive "Productivity Pay" based on "flag hours." Service King is an auto body collision and repair company that operates repair shops. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3HYb0I5 at no extra charge.[CC] SHATTUCK LABS: Bragar Eagel & Squire Reminds of April 1 Deadline ---------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of Shattuck Labs, Inc. (NASDAQ: STTK), Electric Last Mile Solutions (NASDAQ: ELMS), and New Oriental Education & Technology Group, Inc. (NYSE: EDU). Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided. Shattuck Labs, Inc. (NASDAQ: STTK) Class Period: October 9, 2020 IPO; October 9, 2020 - November 9, 2021 Lead Plaintiff Deadline: April 1, 2022 According to the lawsuit, the materials supporting the IPO and defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) the Collaboration Agreement with Takeda was not solid; (2) Takeda and Shattuck would "mutually agree" to terminate the Collaboration Agreement in essentially one year; (3) as a result, Shattuck would cease to receive any future milestone, royalty, or other payments from Takeda; and (4) as a result, defendants' statements about the Company's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. For more information on the Shattuck Labs class action go to: https://bespc.com/cases/STTK Electric Last Mile Solutions (NASDAQ: ELMS) Class Period: Mach 31, 2021 - February 1, 2022 Lead Plaintiff Deadline: April 4, 2022 According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose: (1) ELMS's previously issued financial statements were false and unreliable; (2) ELMS's earlier reported financial statements would need restatement; (3) certain ELMS executives and/or directors purchased equity in the Company at substantial discounts to market value without obtaining an independent valuation; (4) on November 25, 2021 (Thanksgiving), the Company's Board formed an independent Special Committee to conduct an inquiry into certain sales of equity securities made by and to individuals associated with the Company; and (5) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. For more information on the Electric Last Mile class action go to: https://bespc.com/cases/ELMS New Oriental Education & Technology Group, Inc. (NYSE: EDU) Class Period: April 24, 2018 - July 22, 2021 Lead Plaintiff Deadline: April 5, 2022 The Complaint alleges that the Defendants made materially false and misleading statements because they misrepresented and failed to disclose adverse facts about New Oriental's business, operations and prospects, which were known to defendants or recklessly disregarded by them, as follows: (a) that New Oriental's revenue and operational growth was the result of deceptive marketing tactics and abusive business practices that flouted Chinese regulations and policies and exposed the Company to an extreme risk that more draconian measures would be imposed on the Company; (b) that New Oriental had engaged in misleading and fraudulent advertising practices, including the provision of false and misleading discount information designed to obfuscate the true cost of the Company's programs to its customers; (c) that New Oriental had falsified teacher qualifications and experience in order to attract customers and increase student enrollments; (d) that New Oriental had defied prior government warnings against linking school enrollments with the provision of private tutoring services; (e) that, as a result of the foregoing, New Oriental was subject to an extreme undisclosed risk of adverse enforcement actions, regulatory fines and penalties, and the imposition of new rules and regulations adverse to the Company's business and interests; (f) that the new rules, regulations and policies to be implemented by the Chinese government following the Two Sessions parliamentary meetings were far more severe than represented to investors by defendants and in fact posed an existential threat to the Company and its business; and (g) that, as a result of the foregoing, defendants' positive statements about the Company's business, operations, and prospects were materially misleading and lacked a reasonable factual basis. Additionally, as defendants knew or recklessly disregarded, New Oriental's annual reports misleadingly failed to include information required by SEC rules and regulations. For more information on the New Oriental Education class action go to: https://bespc.com/cases/EDU 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. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B. Raymond, Esq. (212) 355-4648 investigations@bespc.comwww.bespc.com [GN] SIGNODE INDUSTRIAL: Ruling to Produce Docs in Stone Suit Affirmed ----------------------------------------------------------------- In the case, HAROLD STONE, et al., Plaintiffs, v. SIGNODE INDUSTRIAL GROUP LLC, et al., Defendants, Case No. 17-cv-05360 (N.D. Ill.), Judge John F. Kness of the U.S. District Court for the Northern District of Illinois, Eastern Division, affirmed Magistrate Judge Susan E. Cox's ruling granting in part and denying in part the Plaintiffs' motion to compel the Defendants to produce certain information and documents. I. Introduction The Plaintiffs bring the class action to enforce wrongfully denied healthcare benefits under a collective bargaining agreement. The Court, by the previously assigned judge, granted the Plaintiffs a permanent injunction that ordered the Defendants to reinstate the Plaintiffs' benefits; the Seventh Circuit upheld that ruling in a published opinion. Still remaining before the Court is a determination regarding damages. To assist in the resolution of this phase, the case has been referred to Judge Cox for supervision of discovery. On July 9, 2021, Judge Cox granted in part and denied in part the Plaintiffs' motion to compel the Defendants to produce information and documents related to their profits, "consequential gains," and "saved expenditures" regarding Defendants' failure to provide health benefits for the retirees, as well as information and documents related to the Defendants' compliance with the Court's injunction order. Now before the Court are the Plaintiffs' and the Defendants' objections to those portions of Judge Cox's ruling adverse to the respective parties. II. Background The Plaintiffs are a labor union and two former employees of the Defendants' predecessor. They brought the case on behalf of other similarly situated retirees of the former Acme Packaging Plant in Riverdale, Illinois, against the Defendants for terminating the Plaintiffs' healthcare benefits in 2016 in violation of both Section 301 of the Labor-Management Relations Act, 29 U.S.C. Section 185, and Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1132(a)(1)(B). In 2019, the Court granted summary judgment in favor of the Plaintiffs and entered a permanent injunction ordering the Defendants to reinstate the Plaintiffs' healthcare benefits. That decision was upheld on appeal. After the Court lifted the post-appeal stay as to the remaining open matters, it referred the case to Judge Cox to supervise pending discovery relating primarily to damages. As part of that discovery inquiry, the Plaintiffs served document requests and interrogatories on the Defendants. The parties reached an impasse on two issues, which led the Plaintiffs to move to compel the Defendants to produce information regarding: (1) profits, "saved expenditures" and "other consequential gains" realized after the Defendants ceased providing healthcare benefits to the Plaintiffs; and (2) "injunction compliance" regarding the restoration of healthcare benefits. Judge Cox granted the motion as to the first part and denied it as to the second. The Defendants challenged the Plaintiffs' motion on three primary grounds. First, the Defendants asserted that ERISA Section 502(a)(3) (providing for "other appropriate relief") does not permit the extracontractual equitable relief sought by the Plaintiffs. Second, the Defendants argued that, even if ERISA does permit recovery of extracontractual damages, a Section 502(a)(1)(B) claim for money damages would make the Plaintiffs whole and thus precludes a Section 502(a)(3) claim for equitable relief. Third, the Defendants contended that the Plaintiffs failed to show that the requested funds are in their possession and can be identified as required under Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 577 U.S. 136, 144 (2016). Judge Cox rejected each of the Defendants' arguments for being, although persuasive in a potential future dispositive motion, improperly raised in response to a discovery motion. As for the portion of the Plaintiffs' motion to compel seeking discovery on the Defendants' compliance with the Court's permanent injunction, Judge Cox refused to allow the Plaintiffs to "go on the proverbial fishing expedition to explore whether Defendants are reinstating health-care benefits" as prescribed by the Court's order. She advised the Plaintiffs that, to the extent they believe the Defendants have failed to comply with the injunction, they should file a motion to that effect before the district judge, rather than improperly raise the issue through discovery. Now before the Court are the parties' individually-filed Rule 72(a) Objections to the portion of Judge Cox's ruling adverse to each party. The Defendants object to the grant of the motion to compel them to produce information and documents related to extracontractual equitable relief; to that end, the Defendants request that the Court: (1) modifies the part of Judge Cox's Order granting the Plaintiffs' motion to compel discovery so that it instead entirely denies the Plaintiffs' motion to compel; and (2) in the alternative, grants leave to file a limited summary judgment motion on the equitable remedies as recommended by Judge Cox. In turn, the Plaintiffs object to the portion of Judge Cox's ruling denying their motion to compel discovery on injunction compliance. III. Discussion Parties may obtain discovery regarding "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Whether ERISA precludes what are, in effect, disgorgement and restitution remedies in the case remains an unsettled question of law. For this reason, it is improper to resolve the issue on a discovery motion. Accordingly, Judge Cox's decision to permit discovery on matters relevant and proportional to the Plaintiffs' damages claims -- which include a claim for equitable relief under ERISA -- does not rise to the level of clear error under Rule 72(a) of the Federal Rules of Civil Procedure. A. Defendants' Objection Judge Kness opines that the Defendants fail to present binding authority that disgorgement or restitution under ERISA Section 502(a)(3) are prohibited forms of relief. Respecting the unresolved nature of the law governing extracontractual damages under ERISA and its relevance to the Plaintiffs' claims, he finds that Judge Cox did not commit clear error in permitting discovery on extracontractual relief. Assuming ERISA permits disgorgement or restitution remedies, it remains unclear whether the Plaintiffs can ultimately recover under both Section 502(a)(1)(B) and Section 502(a)(3). Ultimately, Defendants may establish that the Plaintiffs' request for equitable relief cannot coexist with an available damages remedy. But it is premature to resolve that issue. In view of the present posture of the case, Judge Cox acted reasonably in deciding that the better approach is discovery now, motion practice later. That finding in turn requires Judge Kness to hold that Judge Cox's ruling was not clearly erroneous or contrary to law. Accordingly, the Defendants' objection is overruled. B. Plaintiffs' Objection Judge Kness holds that it is axiomatic that "the proper vehicle to enforce a court order is a motion in the original case," not a motion to compel discovery on the matter. Judge Cox's refusal to allow the Plaintiffs to go on a "proverbial fishing expedition" and explore whether the Defendants complied with the Court's injunction order leaves the Court far from a "definite and firm conviction that a mistake has been made." Just the opposite; Judge Cox correctly concluded that the Plaintiffs (like the Defendants) used the wrong procedural tool to gather information outside the bounds of Rule 26(b). If what the Plaintiffs allege is true -- if the Defendants are in fact violating the Court's order -- the Plaintiffs retain the discretion to seek relief by way of an appropriate motion. IV. Conclusion For the reasons he stated, Judge Kness denied the parties' objections to Judge Cox's ruling and affirmed her ruling. A full-text copy of the Court's Feb. 9, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/ydcvp5ht from Leagle.com. SMITH & WESSON: Stallworth Suit Removed to N.D. Illinois -------------------------------------------------------- The case captioned as Quintel Stallworth, individually and on behalf of similarly situated individuals v. Smith & Wesson Brands, Inc., Case No. 2022LA000038 was removed from the Circuit Court of DuPage County, to the U.S. District Court for Northern District of Illinois on Feb. 15, 2022. The District Court Clerk assigned Case No. 1:22-cv-00830 to the proceeding. The nature of suit is stated as Contract Product Liability. Smith & Wesson Brands, Inc. -- https://ir.smith-wesson.com/ -- is an American firearms manufacturer headquartered in Springfield, Massachusetts.[BN] The Plaintiff is represented by: Chandne Jawanda, Esq. Eugene Y. Turin, Esq. Steven Russell Beckham, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Dr. 9th Fl. Chicago, IL 60601 Phone: (312) 893-7002 Email: cjawanda@mcgpc.com eturin@mcgpc.com SBeckham@mcgpc.com The Defendant is represented by: Andrew Arthur Lothson, Esq. SWANSON, MARTIN & BELL 330 North Wabash, Suite 3300 Chicago, IL 60611 Email: alothson@smbtrials.com SOCLEAN INC: Borland Suit Transferred to W.D. Pennsylvania ---------------------------------------------------------- The case styled as James Borland, individually and on behalf of all others similarly situated v. SoClean, Inc., Case No. 8:21-cv-01794 was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Western District of Pennsylvania on Feb. 16, 2022. The District Court Clerk assigned Case No. 2:22-cv-00293-JFC to the proceeding. The nature of suit is stated as Other Contract for Contract Dispute. SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning devices. The Company produces automated continuous positive airway pressure (CPAP) cleaners and sanitizers which improves health outcomes and quality of life for those suffering from obstructive sleep apnea and other sleeping disorders.[BN] The Plaintiff is represented by: Clark Hansen Fielding, Esq. FIELDING LAW APC 18575 Jamboree Road Suite 600 Irvine, CA 92612 Phone: (949) 288-5484 Fax: (949) 386-1516 Email: clark@fieldinglawfirm.com - and - Andrew J. Nantz, Esq. Brett T. Votava, Esq. Todd M. Johnson, Esq. VOTAVA NANTZ & JOHNSON, LLC 9237 Ward Parkway, Suite 100 Kansas City, MO 64114 Phone: (816) 895-8800 Fax: (816) 895-8801 Email: andrew@vnjlaw.com kjennings@vnjlaw.com The Defendant is represented by: Colin G Cabral, Esq. Shawn Scott Ledingham, Jr., Esq. PROSKAUER ROSE LLP 2029 Century Park East 24th Floor Los Angeles, CA 90067-3010 Phone: (310) 557-2900 Fax: (310) 557-2193 Email: ccabral@proskauer.com sledingham@proskauer.com SOCLEAN INC: Seicol Suit Transferred to W.D. Pennsylvania --------------------------------------------------------- The case styled as David Seicol, individually and on behalf of all others similarly situated v. SoClean, Inc., Case No. 7:21-cv-08854 was transferred from the U.S. District Court for the Southern District of New York, to the U.S. District Court for the Western District of Pennsylvania on Feb. 15, 2022. The District Court Clerk assigned Case No. 2:22-cv-00291-JFC to the proceeding. The nature of suit is stated as Other Contract for Breach of Contract. SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning devices. The Company produces automated continuous positive airway pressure (CPAP) cleaners and sanitizers which improves health outcomes and quality of life for those suffering from obstructive sleep apnea and other sleeping disorders.[BN] The Plaintiff is represented by: John Joseph Bailly, Esq. BAILLY & MCMILLAN, LLP 707 Westchester Avenue, Suite 405 White Plains, NY 10604 Phone: (914) 684-9100 Email: jbailly@bandmlaw.com The Defendant is represented by: Jeffrey H. Warshafsky, Esq. PROSKAUER ROSE 11 Times Square New York, NY 10036 Phone: (212) 969-3241 Fax: (212) 969-2900 Email: jwarshafsky@proskauer.com SOLOMID CORP: Any Bid for Class Cert. Must be Filed by April 29 --------------------------------------------------------------- In the class action lawsuit captioned as ARTURO ESTEVEZ, individually, and on behalf of all others similarly situated, v. SOLOMID CORPORATION, Case No. 1:21-cv-08942-LJL (S.D.N.Y.), the Hon. Judge Lewis J. Liman entered an order: The parties appeared for an Initial Pretrial Conference in this matter on February 9, 2022. As discussed at that conference, it is ordered that, -- The parties shall submit a letter to March 1, 2022 the Court updating it as to any progress that has been made in reaching a settlement on this matter on or before: -- Any motion for class certification April 29, 2022 shall be made by: -- The parties shall appear for a Aug. 1, 2022 Post-Discovery Status Conference on: The Court said, "If the parties do not reach a settlement by that date, the Court plans to refer the parties to the Southern District of New York's Mediation Program. Third-party discovery will be stayed, without prejudice to either party making an application to open such discovery." SoloMid Corporation is the owner of TSM an esports gaming team. It also operates gaming websites, such as ProBuilds, and League of Legends. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3HaaA09 at no extra charge.[CC] STATE STREET: Sanction of Lieff in Arkansas Teacher Suit Upheld --------------------------------------------------------------- In the case, ARKANSAS TEACHER RETIREMENT SYSTEM, on behalf of itself and all others similarly situated; JAMES PEHOUSHEK-STANGELAND; ANDOVER COMPANIES EMPLOYEE SAVINGS AND PROFIT SHARING PLAN; ARNOLD HENRIQUEZ; MICHAEL T. COHN; WILLIAM R. TAYLOR; RICHARD A. SUTHERLAND, Plaintiffs v. STATE STREET CORPORATION; STATE STREET BANK AND TRUST COMPANY; STATE STREET GLOBAL MARKETS, LLC; DOES 1-20, Defendants. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, Interested Party, Appellant v. LABATON SUCHAROW LLP; THORNTON LAW FIRM LLP; KELLER ROHRBACK LLP; McTIGUE LAW LLP; ZUCKERMAN SPAEDER LLP, Interested Parties, Appellees, Case No. 21-1069 (1st Cir.), the U.S. Court of Appeals for the First Circuit affirmed the district court's Rule 11(b) sanction of Lieff Cabraser Heimann & Bernstein LLP. I. Background Lieff served as one of the principal law firms representing a class of investors in a very successful challenge to charges imposed by State Street Bank and Trust Company on foreign exchange products. In 2011, Lieff, along with Thornton Law Firm LLP and Labaton Sucharow LLP, filed a class action complaint in the District of Massachusetts on behalf of the Arkansas Teacher Retirement System and other similarly situated institutional investors, alleging that the investors' custodian bank overcharged them for foreign currency exchange products in violation of the bank's fiduciary, contractual, and statutory duties. The district court appointed Labaton the interim Lead Counsel for the plaintiff class, and deemed Thornton "liaison counsel" and Lieff "additional counsel." After five years of litigation and mediation, the parties reached a settlement-in-principle for $300 million. The appeal arises from the post-settlement process of apportioning a $300 million recovery between the class and its lawyers. The district court ultimately awarded a handsome $60 million fee to the lawyers representing the class. In so doing, though, it opined that the class counsel, including Lieff's lawyers, engaged in misconduct. Specifically, the district court faulted Lieff for using a template for its fee declaration that misleadingly indicated that it regularly charged paying clients the rates supporting its lodestar, for failing to exercise reasonable care in contributing to a suspect $4.1 million payment to a lawyer in Texas, and for materially misrepresenting a study regarding typical fees awarded in similar cases. For the third misstep, the district court formally sanctioned Lieff under Federal Rule of Civil Procedure 11(b), though without any monetary penalty. Lieff now appeals. Amicus challenges Lieff's appeal on two fronts. First, it claims the First Circuit does not have appellate jurisdiction over Lieff's claims to the extent that the district court merely criticized Lieff's performance without imposing any sanctions. Second, it contends that, on the merits, the district court's criticisms and Rule 11 sanction were appropriate. II. Discussion The First Circuit divides Lieff's challenges into two categories: The district court's finding that Lieff violated Rule 11, and the district court's statements -- unconnected to any express finding of a Rule 11 violation -- that criticized Lieff for the lack of accuracy in describing its lodestar amount and for not having adequately investigated the basis for the large payment to Chargois. The First Circuit explains that it plainly has appellate jurisdiction to review the formal finding of a Rule 11 violation. The question, though, is whether it also has jurisdiction to review the latter group of criticisms unconnected to any such finding. Lieff suggests that the district court relied in part on its criticisms of Lieff to calculate a fee award that was lower than it otherwise would have been. It asserts that if the First Circuit sets aside all of the district court's criticisms of Lieff's conduct, Lieff might be entitled to receive some money out of the funds awarded to the class if any such funds remain unclaimed by class members. The First Circuit finds no basis for deviating from its circuit's general rule that a district court's criticism of counsel unconnected to any challenge to a judgment or order on appeal is not itself reviewable on appeal. That being said, an "order determining that an attorney committed Rule 11 violations" is "appealable, being distinguishable from mere criticism." So it turns now to Lieff's appeal of the Rule 11 sanction. Lieff raises three challenges to the district court's finding that Lieff violated Rule 11 by misrepresenting the Fitzpatrick study in the class counsel's fee memorandum supporting its requested attorneys' fees. First, Lieff claims that the district court imposed the sanction without proper notice or an adequate opportunity to respond, in violation of Rule 11 and due process. Second, Lieff contends that it had no relevant Rule 11 obligation because only Labaton as Lead Counsel "signed" the filing. Finally, it defends its actions substantively, arguing that the memorandum was not misleading and did not violate Rule 11. First, the First Circuit finds that the district court met the important requirement that it give both notice of the basis for a possible sanction and a fair opportunity to show why there should be no sanction, even though the court did not invoke the rule's preferred terminology. Second, the absence of Lieff's penned signature provides no defense to the finding that Lieff presented the problematic assertion to the court. Finally, Lieff provided the Court with a record that supports the formality of a measured declaration of a Rule 11 violation without any monetary penalty. III. Conclusion For the foregoing reasons, the First Circuit dismissed as unappealable Lieff's claims regarding the district court's mere criticisms and affirmed the district court's Rule 11 sanction. As there was only one party on appeal, no costs are awarded. A full-text copy of the Court's Feb. 9, 2022 Order is available at https://tinyurl.com/yc2xfan6 from Leagle.com. Samuel Issacharoff -- samuel.issacharoff@nyu.edu -- for interested party, Appellant Lieff Cabraser Heimann & Bernstein, LLP. Theodore H. Frank -- ted.frank@hlli.org -- with whom M. Frank Bednarz -- frank.bednarz@hlli.org -- was on brief, for amicus curiae Hamilton Lincoln Law Institute. SYMANTEC CORP: Settlement in SEB Suit Gets Final Nod ---------------------------------------------------- In the class action lawsuit captioned as SEB INVESTMENT MANAGEMENT AB, individually and on behalf of all others similarly situated, v. SYMANTEC CORPORATION and GREGORY S. CLARK, Case No. 3:18-cv-02902-WHA (N.D. Cal.), the Hon. Judge William Alsup entered an order granting final approval of class action settlement and plan of allocation, and granting attorney's fees and litigation expense as follows: -- Final approval of the $70 million settlement is granted. -- The plan of allocation is approved. -- The motion for attorney's fees is granted. -- Class counsel Bernstein Litowitz Berger & Grossman LLP is awarded $13.3 Million for Attorney's Fees, with interest at the same rate as the settlement fund. Class counsel shall have half the fees immediately upon entry of this order, and the other half when class counsel certifies that all settlement funds have been properly distributed and the file can be completely closed. -- Class counsel's litigation expenses in the amount of $2,000,208.69, to be paid immediately, are granted. -- Counsel shall file a report promptly after the claims deadline detailing the results of the claims process. The Plaintiff filed its motion for class certification in January 2020. Following full briefing and a hearing, a May 2020 order certified the following class: "All persons or entities who purchased or otherwise acquired publicly-traded Symantec common stock during the period from May 11, 2017, to August 2, 2018, inclusive (the class period), and who were damaged thereby (the class)." The Defendant Symantec Corporation (now known as NortonLifeLock Inc.) sold cybersecurity products and services. In early and mid-2016, Symantec divested one software company and acquired another, all in an effort to shore up its ailing financials. After acquiring the new company, the newly-acquired company, Blue Coat, sent its management team to the helm. The Defendant Gregory Clark took over as Symantec's CEO, dismissed defendant Nicholas Noviello became Symantec’s CFO, while Symantec’s CAO before the Blue Coat acquisition, dismissed defendant Mark Garfield, continued on in his role. In November 2016, Symantec acquired a second cyber-security company, LifeLock, Inc. In the relevant financial disclosures, Symantec described the acquisitions of Blue Coat and LifeLock as transformative 11 which would lead to cost savings and growth. In this connection, Symantec increased its revenue and income targets for executive compensation. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/36lLoXH at no extra charge.[CC] T-MOBILE USA: Achermann Suit Removed to N.D. California ------------------------------------------------------- James Achermann, individually, and on behalf of a class of similarly situated persons v. T-MOBILE USA, INC., Case No. CGC-21-594632 was removed from the Superior Court of San Francisco County to the United States District Court for the Northern District of California on Feb. 4, 2022, and assigned Case No. 4:22-cv-00065-BCW. The Plaintiff alleges that he is a T-Mobile customer. According to Plaintiff, in mid-August 2021, a third-party criminal actor illegally accessed T-Mobile's systems containing personally identifiable information (PII) for many T-Mobile's customers, including the Plaintiff. The Plaintiff alleges two claims and seeks compensatory damages, statutory damages under the CCPA, an order "instructing Defendant to purchase or provide funds for adequate credit monitoring services for the Plaintiff and all class members," an award of "equitable and public injunctive relief," and attorneys' fees. The Plaintiff alleges those claims on his own behalf and on behalf of "all T-Mobile customers, prospective customers and past customers who reside in California and whose PII was accessed or otherwise compromised in the Data Breach, which, according to press releases issued by T-Mobile, occurred on or about August 13, 2021."[BN] The Defendant is represented by: Stuart Plunkett, Esq. Kathryn Christopherson, Esq. ALSTON & BIRD LLP 560 Mission Street, Suite 2100 San Francisco, CA 94105 Phone: (415) 243-1000 Facsimile: (415) 243-1001 Email: stuart.plunkett@alston.com kathryn.christopherson@alston.com TAL EDUCATION: Kessler Topaz Reminds of April 5 Deadline -------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP(www.ktmc.com) informs investors that a securities class action lawsuit has been filed against TAL Education Group ("TAL") (NYSE:TAL). The action charges TAL with violations of the federal securities laws, including omissions and fraudulent misrepresentations relating to the company's business, operations, and prospects. As a result of TAL's materially misleading statements to the public, TAL investors have suffered significant losses. Kessler Topaz is one of the world's foremost advocates in protecting the public against corporate fraud and other wrongdoing. Our securities fraud litigators are regularly recognized as leaders in the field individually and our firm is both feared and respected among the defense bar and the insurance bar. We are proud to have recovered billions of dollars for our clients and the classes of shareholders we represent. CLICK https://bit.ly/3HgtRN6 TO SUBMIT YOUR TAL LOSSES. YOU CAN ALSO CLICK ON THE FOLLOWING LINK OR COPY AND PASTE IN YOUR BROWSER: https://www.ktmc.com/tal-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=tal LEAD PLAINTIFF DEADLINE: April 5, 2022 CLASS PERIOD: April 26, 2018 through July 22, 2021 CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS: James Maro, Esq. (484) 270-1453 or Email at info@ktmc.com TAL'S ALLEGED MISCONDUCT TAL provides K-12 after-school tutoring services in the People's Republic of China. Specifically, the company offers tutoring services to K-12 students covering various academic subjects, including mathematics, physics, chemistry, biology, history, geography, political science, English, and Chinese. On April 25, 2021, media reports revealed that the city of Beijing had fined four online education agencies, including TAL, the maximum fine of 500,000 yuan (approximately $80,000) each for misleading customers with false advertising. Specifically, regulators found that TAL's VIE, Beijing Xueersi Education Technology Co., Ltd., had been misrepresenting the un-discounted costs of enrollment in its courses to consumers, thereby deceiving customers into paying full price for courses that they believed they were receiving at a discount. Following this news, the price of TAL American Depository Shares ("ADSs") dropped from $53.14 on May 11, 2021, to $46.25 on May 13, 2021, a 13% decline over the two-day period. Then, on June 1, 2021, Chinese regulators announced they had fined 15 off-campus training institutions, including TAL, for illegal activities such as false advertising and fraud. The offending companies, including TAL, were hit with maximum penalties for their illegal business practices, totaling a combined 36.5 million yuan ($5.73 million). Following this news, the price of TAL ADSs dropped from $40.51 on June 1, 2021, to $33.27 on June 3, 2021, nearly an 18% decline over the two-day period. Finally, on July 23, 2021, China unveiled a sweeping overhaul of its education sector, banning companies that teach the school curriculum from making profits, raising capital or going public. This drastic measure effectively ended any potential growth in the for-profit tutoring sector in China. Following this news, the price of TAL ADSs fell from $20.52 on July 22, 2021, to just $4.40 on July 26, 2021, a nearly 79% decline. WHAT CAN I DO? TAL investors may, no later than April 5, 2022 seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, LLPor other counsel, or may choose to do nothing and remain an absent class member. Kessler Topaz Meltzer & Check, LLP encourages TAL investors who have suffered significant losses to contact the firm directly to acquire more information. WHO CAN BE A LEAD PLAINTIFF? A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. The lead plaintiff is usually the investor or small group of investors who have the largest financial interest and who are also adequate and typical of the proposed class of investors. The lead plaintiff selects counsel to represent the lead plaintiff and the class and these attorneys, if approved by the court, are lead or class counsel. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP Kessler Topaz Meltzer & Check, LLP prosecutes class actions in state and federal courts throughout the country and around the world. The firm has developed a global reputation for excellence and has recovered billions of dollars for victims of fraud and other corporate misconduct. All of our work is driven by a common goal: to protect investors, consumers, employees and others from fraud, abuse, misconduct and negligence by businesses and fiduciaries. At the end of the day, we have succeeded if the bad guys pay up, and if you recover your assets. The complaint in this action was not filed by Kessler Topaz Meltzer & Check, LLP. For more information about Kessler Topaz Meltzer & Check, LLP please visit www.ktmc.com. CONTACT: Kessler Topaz Meltzer & Check, LLP James Maro, Jr., Esq. 280 King of Prussia Road Radnor, PA 19087 (484) 270-1453 info@ktmc.com [GN] TEP ROCKY: Class Certification Bid Due April 8 in Jolley Suit ------------------------------------------------------------- In the class action lawsuit captioned as Jolley Potter Ranches Energy Co, LLC v. TEP Rocky Mountain LLC, Case No. 1:19-cv-00495 (D. Colo.), the Hon. Judge Gordon P. Gallagher entered an order on motion to amend/correct/modify class certification dates: -- The class certification motion is due: April 8, 2022 -- Response is due: May 23, 2022 -- Reply is due: July 7, 2022 The request to enlarge the page limits is granted in part in that the class certification motion page limit is now 25 pages, the response is 25 pages, and the reply will be no more than 17 pages. The Court finds that the above page limits are sufficiently expansive to allow for full briefing of the issue, but that the limits requested in the motion are overly expansive, Judge Gallagher says. The nature of suit states diversity-breach of fiduciary duty. TEP Rocky Mountain is a private exploration and production company that operates the piceance basin assets acquired by Terra Energy Partners.[CC] TESLA INC: Faces DFEH Class Suit Over Alleged Race Discrimination ----------------------------------------------------------------- Joe Dworetzky, writing for PleasantonWeekly.com, reports that California's Department of Fair Employment and Housing (DFEH) brought suit against Tesla Inc., accusing the company of a far-reaching and pervasive pattern of racially discriminatory conduct against Black and African American workers at its Fremont plant. The civil rights suit is the culmination of a three-year investigation into conditions at the plant. DFEH allegedly considered hundreds of complaints from workers and "found evidence that defendants subjected its Black and/or African American workers to racial harassment and discriminated against them in the terms and conditions of employment, including assignment, discipline, promotion, termination, and constructive discharge." Tesla struck back even before the suit was filed, releasing a public statement that carried the provocative caption "The DFEH's Misguided Lawsuit." The statement challenged DFEH's credibility and claimed that the conduct investigated occurred in the period from 2015 and 2019 and ignored the company's recent efforts in diversity, equity and inclusion. The release points out that Tesla is the only California car manufacturer and "provides the best paying jobs in the automotive industry to over 30,000 Californians." The release goes on to say that Tesla is a world leader in innovation, sustainability and clean energy, and concludes that "attacking a company like Tesla that has done so much good for California should not be the overriding aim of a state agency with prosecutorial authority." DFEH counted with its own public statement on Feb. 10, stating that Tesla "has turned a blind eye to years of complaints from Black workers protesting the near-constant use of racial slurs and derogatory language in the workplace, and the presence of racist writing and graffiti in common areas of the workplace, including swastikas and other hate symbols." The Fremont plant was previously a General Motors facility. Tesla purchased it in 2010 and retooled it to produce electric vehicles. According to the DFEH complaint, the facility has 5.3 million square feet of space on 370 acres and employs more than 15,000 workers. According to the state agency's allegation allegations, Black and African American workers at the plant were subjected to daily racial slurs and graffiti -- including the "N-word," KKK signs, the Confederate flag and swastikas -- amidst ongoing discriminatory conduct. DFEH alleges that the plant was physically segregated, with Black workers assigned to work in separate areas and given work that was more physically challenging and dangerous than that assigned to white workers. Complaints by Black workers were, according to DFEH, "ignored, immediately dismissed, or perfunctorily investigated and then dismissed." The complaint reports that a common complaint of the workers DFEH interviewed was that Black and African American workers were "taunted by racial slurs and then baited into verbal and physical confrontations, where they, in turn, were the ones disciplined for being purportedly 'aggressive' or 'threatening.'" DFEH alleges that the company's human resources function was chronically understaffed and unable or unwilling to deal with the issues. The suit says that in recent years, Tesla has turned to outsourcing the hiring of workers to private staffing agencies. DFEH states that Tesla took this route because in the event of a complaint about a worker, the staffing agency would have to do the investigation. The DFEH brought the suit on behalf of the people of California and also on behalf of a "group" -- like the "class" in a class action -- of workers at the Fremont plant. The complaint lists separate claims for race discrimination by harassment, by job assignment, and in compensation, discipline, promotion, termination, discharge, retaliation, and pay. In many of the claims, DFEH alleges that the company's actions "were willful, malicious, fraudulent, and oppressive, and were committed with the wrongful intent to injure Black and/or African American workers in conscious disregard of their rights." DFEH seeks money damages as well as injunctive relief. Tesla has not filed a formal response to the suit, although in its press release it says that it "will be asking the court to pause the case and take other steps to ensure that facts and evidence will be heard." In its press release, Tesla alleged that "DFEH has been asked on almost 50 occasions by individuals who believe they were discriminated against or harassed to investigate Tesla. On every single occasion, when the DFEH closed an investigation, it did not find misconduct against Tesla." It dismisses the suit as "a narrative spun by the DFEH and a handful of plaintiff firms to generate publicity." In October 2021, Tesla was slapped with a $137 million jury award in a race discrimination case brought by a Black former employee who alleged racial abuse while working as an elevator operator at the company. Tesla's contentious interactions with the state of California and Gov. Gavin Newsom, as well as fights with Alameda County over COVID-19 restrictions on plant operations, led to Tesla's announcement in October 2021 that it would move company headquarters from California to Austin, Texas. The complaint suggests that the announcement was "another move to avoid accountability." DFEH comments that "Tesla's brand, purportedly highlighting a socially conscious future, masks the reality of a company that profits from an army of production workers, many of whom are people of color, working under egregious conditions." Tesla is one of the world's most valuable companies, with a market capitalization approaching $1 trillion. [GN] TOMORROW ENERGY: Shannon Sues Over Unpaid Minimum, Overtime Wages ----------------------------------------------------------------- Timothy Shannon, individually and on behalf of all others similarly situated v. Tomorrow Energy Corp., King Ashton Marketing Services, LLC, Kendra King, Nicholas Ashton, Paul Keene, and John Doe Corporations I-XX, Case No. 2:22-cv-00204-NBF (W.D. Pa., Feb, 3, 2022), is brought to recover the unpaid minimum wages and overtime; and for liquidated damages, attorneys' fees, costs, and interest under the Fair Labor Standards Act (FLSA); 43 Pennsylvania Statutes; and Ohio Revised Code Ann. The Defendants have operated pursuant to a policy and practice of intentionally misclassifying Plaintiff and all other similarly-situated employees as independent contractors not subject to the FLSA's overtime and minimum wage provisions. The Defendants have wilfully refused to pay a minimum wage and willfully refuse to pay overtime. In willfully refusing to pay a minimum wage and willfully refusing to pay overtime, Defendants have violated the minimum wage provisions of the FLSA, says the complaint. The Plaintiff was hired by Defendants and worked for Defendants as a sales agent from July 2018 through approximately March 2020. The Defendants own and operate an enterprise that sells energy contracts to their customers and potential customers.[BN] The Plaintiff is represented by: James L. Simon, Esq. THE LAW OFFICES OF SIMON & SIMON 5000 Rockside Road Liberty Plaza Building – Suite 520 Independence, OH 44131 Phone: (216) 525-8890 Email: james@bswages.com - and - Clifford P. Bendau, II, Esq. BENDAU & BENDAU PLLC P.O. Box 97066 Phoenix, Arizona 85060 Phone AZ: (480) 382-5176 Email: cliff@bswages.com TRANSWORLD SYSTEMS: Hoffman Class Cert Bid Renoted to April 15 -------------------------------------------------------------- In the class action lawsuit captioned as ESTHER HOFFMAN, et al., v. TRANSWORLD SYSTEMS INCORPORATED, et al., Case No. 2:18-cv-01132-TSZ (W.D. Wash.), the Hon. Judge Thomas S. Zilly entered an order: (1) The parties' stipulated motion to renote motions and related dates is granted. a. The motion for summary judgment filed by Defendant Transworld Systems Incorporated (TSI) is renoted to April 15, 2022. The Plaintiffs' amended response to TSI's motion for summary judgment must be filed on or before March 18, 2022. b. Plaintiffs' motion for class certification is renoted to April 15, 2022. Any response to Plaintiffs' motion for class certification must be filed on or before April 5, 2022. (2) The Clerk is directed to send a copy of this Minute Order to all counsel of record. TSI is a market-leading provider of accounts receivable management and student loan servicing solutions. A copy of the Court's minute order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3LDFIIL at no extra charge.[CC] TRIVING BRANDS: Wilson Suit Transferred to D. Connecticut --------------------------------------------------------- The case styled as Mosanthony Wilson, James Corsey, individually and on behalf of all others similarly situated v. Triving Brands, LLC, Henkel AG & Co. KGGA, Dial Corp. doing business as: Henkel North American Consumer Goods, Case No. 3:21-cv-01988 was transferred from the U.S. District Court for the Southern District of California, to the U.S. District Court for the District of Connecticut on Feb. 15, 2022. The District Court Clerk assigned Case No. 3:22-cv-00270-SRU to the proceeding. The nature of suit is stated as Other Fraud. The Thriving Brands Company -- https://thriving-brands.com/ -- is a firm in Cincinnati, OH that invests in consumer brands worldwide.[BN] TYSON FOODS: Court Narrows Claims in Price-Rigging Suit ------------------------------------------------------- Tyson Foods, Inc. disclosed in its Form 10-Q Report for the quarterly period ended January 1, 2022, filed with the Securities and Exchange Commission on February 7, 2022, that the Court granted the motion to dismiss with respect to certain state law claims in a putative class action file against the company. On April 23, 2019, a putative class action complaint was filed against the company and its beef and pork subsidiary, Tyson Fresh Meats, Inc., as well as other beef packer defendants, in the United States District Court for the Northern District of Illinois. The plaintiffs allege that the defendants engaged in a conspiracy from January 2015 to the present to reduce fed cattle prices in violation of federal antitrust laws, the Grain Inspection, Packers and Stockyards Act of 1921, and the Commodities Exchange Act by periodically reducing their slaughter volumes so as to reduce demand for fed cattle, curtailing their purchases and slaughters of cash-purchased cattle during those same periods, coordinating their procurement practices for fed cattle settled on a cash basis, importing foreign cattle at a loss so as to reduce domestic demand, and closing and idling plants. In addition, the plaintiffs also allege the defendants colluded to manipulate live cattle futures and options traded on the Chicago Mercantile Exchange. The plaintiffs seek, among other things, treble monetary damages, punitive damages, restitution, and pre- and post-judgment interest, as well as declaratory and injunctive relief. Other similar lawsuits were filed by cattle ranchers in other district courts which were then transferred to the United States District Court for the District of Minnesota and consolidated and styled as "In Re Cattle Antitrust Litigation." On February 18, 2021, the company moved to dismiss the amended complaints, and on September 23, 2021, the court granted the motion with respect to certain state law claims but denied the motion with respect to the plaintiffs' federal antitrust claims. Tyson Foods, Inc. is a food company based in Arkansas. TYSON FOODS: Faces Suits Over Antitrust Laws Violation ------------------------------------------------------ Tyson Foods, Inc. disclosed in its Form 10-Q Report for the quarterly period ended January 1, 2022, filed with the Securities and Exchange Commission on February 7, 2022, that class action lawsuits were filed against the company alleging that in the beginning of January 2008, the defendants conspired and combined to fix, raise, maintain, and stabilize the price of broiler chickens in violation of United States antitrust laws. Beginning in September 2016, a series of purported federal class action lawsuits styled "In re Broiler Chicken Antitrust Litigation" were filed in the United States District Court for the Northern District of Illinois against the company and certain of its poultry subsidiaries, as well as several other poultry processing companies. The operative complaints, which have been amended throughout the litigation, contain allegations that, among other things, assert that beginning in January 2008, the defendants conspired and combined to fix, raise, maintain, and stabilize the price of broiler chickens in violation of United States antitrust laws. The plaintiffs also allege that defendants "manipulated and artificially inflated a widely used Broiler price index, the Georgia Dock." The plaintiffs further allege that the defendants concealed this conduct from the plaintiffs and the members of the putative classes. The plaintiffs seek treble damages, injunctive relief, pre- and post-judgment interest, costs, and attorneys’ fees on behalf of the putative classes. In addition, the complaints on behalf of the putative classes of indirect purchasers include causes of action under various state unfair competition laws, consumer protection laws, and unjust enrichment common laws. Tyson Foods, Inc. is a food company based in Arkansas. TYSON FOODS: Settlement Deal in Chicken Grower Suit Gets Initial OK ------------------------------------------------------------------- Tyson Foods, Inc. disclosed in its Quarterly Report on Form 10-Q for the quarterly period ended January 1, 2022, filed with the Securities and Exchange Commission on February 7, 2022, that the Court granted preliminary approval of the settlement agreement of the class action lawsuits involving chicken growers. On January 27, 2017 and March 26, 2017, putative class action complaints were filed against the company and certain of its poultry subsidiaries, as well as several other vertically integrated poultry processing companies, in the United States District Court for the Eastern District of Oklahoma styled "In re Broiler Chicken Grower Litigation." The plaintiffs allege, among other things, that the defendants colluded not to compete for broiler raising services "with the purpose and effect of fixing, maintaining, and/or stabilizing grower compensation below competitive levels." The plaintiffs also allege that the defendants "agreed to share detailed data on [g]rower compensation with one another, with the purpose and effect of artificially depressing [g]rower compensation below competitive levels." The plaintiffs contend these alleged acts constitute violations of the Sherman Antitrust Act and Section 202 of the Grain Inspection, Packers and Stockyards Act of 1921. The plaintiffs are seeking treble damages, pre- and post-judgment interest, costs, and attorneys' fees on behalf of the putative class. Additional named plaintiffs filed similar class action complaints in federal district courts in North Carolina, Colorado, Kansas and California. All actions were subsequently consolidated in the Eastern District of Oklahoma. In June 2021, the company reached an agreement to settle with the putative class of broiler chicken farmers all claims raised in this consolidated action on terms not material to the Company for which the Company recorded an accrual in its Consolidated Financial Statements as of October 2, 2021. On August 23, 2021, the Court granted preliminary approval of the settlement, and a final fairness hearing is scheduled for February 18, 2022. Tyson Foods, Inc. is a food company based in Arkansas. VENUS OVER MANHATTAN: Miller Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Venus Over Manhattan Art LLC. The case is styled as Kimberly Miller, on behalf of herself and all other persons similarly situated v. Venus Over Manhattan Art LLC, Case No. 1:22-cv-01281 (S.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Venus Over Manhattan, known as Venus -- https://www.venusovermanhattan.com/ -- is an art gallery founded in 2012 by Adam Lindemann, with spaces in Manhattan and Los Angeles.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal VERIZON CONNECT: Must Provide Responses to Interrogatory in Hiram ----------------------------------------------------------------- In the class action lawsuit captioned as ANTONIO HIRAM SANTILLAN, on behalf of all others similarly situated aggrieved employees, v. VERIZON CONNECT, INC., a Delaware corporation, Case No. 3:21-cv-01257-H-KSC (S.D. Cal.), the Hon. Judge Karen S. Cawford entered an order granting the plaintiff's request for an order compelling defendant to provide supplemental responses to Interrogatory Nos. 7 through 10 and 12 through 15. The Court said, "Within 10 days of the date this Order is entered, the defendant must provide plaintiff with supplemental responses to these contention interrogatories that directly address the information requested. As required by Federal Rule of Civil Procedure 33(b)(3), defendant's responses must be "under oath."" A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3JBj7dS at no extra charge.[CC] VIRGINIA: Unemployment Insurance Reforms Advance Following Suit --------------------------------------------------------------- Ned Oliver, writing for Virginia Mercury, reports that two years after the COVID-19 pandemic swamped Virginia's unemployment insurance program, lawmakers are advancing reforms they hope will address breakdowns that left thousands waiting months for essential aid. "We saw unprecedented frustration and failure," said Sen. Jeremy McPike, D-Prince William, as he presented the legislation late last month. "I know this is something no one wants to repeat." The bills, which have now passed both the House and Senate, act on recommendations made last year by legislative auditors, who issued a scathing report that faulted management failures and poor oversight by former Gov. Ralph Northam's administration. Among other things, auditors found management and administration officials took no serious steps to increase staffing until more than a year into the pandemic. And the report says Northam's administration blocked some early steps explored by the agency. To avoid a repeat, lawmakers now plan to create a board to keep closer tabs on how the agency is handling unemployment claims and tack backlogs. Current General Assembly oversight has focused almost entirely on issues affecting businesses, namely the health of the trust fund used to pay benefits and the payroll taxes necessary to fund it. The legislation also directs the commission to develop a resiliency plan detailing how to quickly increase staffing the next time claims surge. And it requires officials to further reduce reliance on paper records and correspondence by requiring employers to provide information about claims electronically. A common complaint among employers has been that they've received letters asking them to verify claims after the deadline to reply. Finally, it creates an ombudsman to help people making their way through the employment process. McPike said he planned to pursue additional reforms through the budget process. The legislation is being carried in the House by Del. Kathy Byron, R-Bedford. The reforms represent the first significant movement toward addressing problems with the agency despite more than a year of complaints by people seeking help, a last-place federal ranking for resolving problems with claims and a class-action lawsuit that led a federal judge to briefly intervene in the state's handling of claims. Advocates applauded the steps even as they said more work remains. Pat Levy-Lavelle, an attorney at the Legal Aid Justice Center who works with clients seeking benefits, said he continues to hear from people struggling to access benefits. "It's encouraging that legislators in both parties recognize that there's a lot of work to do in making the Virginia Employment Commission an agency that's better able to respond to downturns and deliver essential benefits to Virginia families," he said. [GN] WAL-MART ASSOCIATES: Bid to Dismiss Nelson Suit Granted in Part --------------------------------------------------------------- In the case, CHRISTOPHER NELSON, Plaintiff, v. WAL-MART ASSOCIATES, INC., Defendant, Case No. 3:21-cv-00066-MMD-CLB (D. Nev.), Judge Miranda M. Du of the U.S. District Court for the District of Nevada granted in part and denied in part the Defendant's motion to dismiss. Before the Court is the Defendant's motion to dismiss ("Motion") the Amended Complaint ("FAC") under Federal Rule of Civil Procedure ("FRCP") 12(b)(6). I. Background Plaintiff Nelson, on behalf of himself and other similarly situated individuals, sued Defendant Wal-Mart for failing to pay employees for pre-shift activities and labor. Nelson is a non-exempt hourly employee of the Defendant's food distribution warehouse in Sparks, Nevada The warehouse is divided into a "Dry" Section and "Cold" Section. He was a former processor in the Cold Section, where all of the Defendant's frozen and refrigerated items are distributed, and currently works as a processor in the Dry Section. He works four shifts per week, for 10 paid hours per shift. Mr. Nelson alleges that the Defendant requires all Dry Section employees to be prepared at the start of their shift time but does not permit them to clock in until immediately before their shift. In preparation for their shift, employees must check out and bring back a mobile scanner and printer from the Defendant's system control window, which takes approximately 15 minutes. Nelson maintains that the scanner and printer are "integral and indispensable" to his job since Dry Section workers need the equipment to label and take inventory of Defendant's products. He alleges that he and other similarly situated workers are not compensated for this pre-shift activity, which amounts to around one hour per workweek or $33.53 of overtime pay for him. Mr. Nelson alleges that the Defendant similarly requires all Cold Section workers to be prepared at the start of their shift but does not permit them to clock in until immediately before their shift. In preparation for their shift, the Defendant requires Cold Section employees to put on personal protective equipment ("PPE") for safety reasons due to the cold working environment. Nelson estimates that the process of donning the PPE takes 15 minutes per shift and employees are not compensated for this pre-shift activity, which amounts to around one hour per workweek or $33.90 of overtime pay for Nelson. Mr. Nelson subsequently filed the collective and class action, asserting the following claims in the FAC: (1) failure to pay overtime wages in violation of the Fair Labor Standards Act ("FLSA"); (2) failure to pay minimum wages in violation of the Nevada Constitution; (3) failure to pay wages for all hours worked in violation of Nevada Revised Statute ("NRS") Section 608.140 and Section 608.016; (4) failure to pay overtime wages in violation of NRS Section 608.140 and Section 608.018; and (5) failure to timely pay all wages due and owing upon termination pursuant to NRS Section 608.140 and Sections 608.020-608.050. The Defendant then filed the Motion, requesting dismissal of the FAC under Rule 12(b)(6). II. Discussion Judge Du first addresses the Defendant's arguments that are premised on the Nevada Supreme Court's ruling in Neville v. Eighth Judicial District Court, 406 P.3d 499 (Nev. 2017). Defendant's Neville arguments concern dismissal of Nelson's state-law claims asserted under NRS Sections 608.140, 608.016, 608.018, and 608.020-608.050. Judge Du then examines the Defendant's non-Neville claims, which include Nelson's minimum wage claim under the Nevada Constitution, his claim for wages due upon termination under NRS Section 608.140 and Sections 608.020-608.050 because Nelson is a current employee, and his FLSA claim for unpaid pre-shift activities in the Cold Section. A. Neville Arguments for NRS Sections 608.140, 608.016, 608.018, and 608.020-608.050 Most of the Defendant's Motion is predicated on its belief that the Nevada Supreme Court erred in Neville. Accordingly, it argues that the Court should deviate from Neville's holding and find that Nelson does not have a private right of action under NRS Sections 608.140, 608.016, 608.018, 608.020-608.050. Nelson counters that the Court should follow the holding in Neville, which expressly found that Nevada employees have a private right of action to recover unpaid wages under those statutes. Judge Du agrees with Nelson. She declines to deviate from the Nevada Supreme Court on a Nevada state-law issue. Because Nevada's highest court, the "final arbiter," has already spoken on this state-law issue, the Court is bound to follow Neville. The Nevada Supreme Court also broadly held that "the Legislature intended to create a private cause of action for unpaid wages pursuant to NRS Section 608.140" and that "NRS Section 608.140 explicitly recognizes a private cause of action for unpaid wages." For these aforementioned reasons, Judge Du rejects the Defendant's arguments and denies the Motion as to Nelson's claims under NRS Sections 608.140, 608.016, 608.018, and 608.020-608.050. B. Minimum Wage Claim Under the Nevada Constitution The Defendant next argues that the Court should dismiss Nelson's claim under the Minimum Wage Amendment ("MWA") of the Nevada Constitution because his hourly rate does not fall below the state minimum. Nelson counters that he and similarly situated employees did not receive any compensation for their pre-shift activities, in violation of the MWA, and the Defendant's argument is incorrectly premised on Nevada's adoption of FLSA's "workweek requirement" for calculating the minimum wage. Judge Du agrees with Nelson. She is unpersuaded that Nevada law permits averaging unpaid overtime with compensated regularly scheduled work to provide cover for employers who do not pay minimum and overtime wages. She also finds that Nelson sufficiently pled his minimum wage claim under the Nevada Constitution. Nelson has pled enough facts in the FAC for the Court to draw a reasonable inference that Defendant violated the MWA. Accepting Nelson's allegations as true, and when viewed in conjunction with MWA's broad protections and the Court's rejection of the FLSA standard, Judge Du finds that Nelson has pled a facially plausible claim that the Defendant's non-payment of the pre-shift activities violates the Nevada Constitution. Nelson may therefore proceed with his MWA minimum wage claim, and Judge Du denies the Defendant's Motion as to this claim. In the Motion, the Defendant also argues that the Court should dismiss Nelson's claim under NRS Section 608.016 and NRS Section 608.140 because he "does not allege he is owed for unpaid, straight time worked -- i.e., for work performed before he reached 40 hours worked in a workweek." However, NRS Section 608.016 requires an employer to pay an employee "wages for each hour the employee works," and Nelson alleged that the Defendant failed to pay him and other similarly situated employees for pre-shift activities that exceeded their scheduled 40 hours per week. He also provided the Court with his work hours for a given pay period and included records of his paystubs as support of the non-compensation. Thus, Nelson has sufficiently pled his NRS Section 608.016 claim. C. Unpaid Wages Due Upon Termination Under NRS Sections 608.020-608.050 Nelson has not established that he or any of the three Opt-in Plaintiffs have current standing to bring a claim under NRS Sections 608.020-608.050. The Defendant argues, in part, that dismissal of Nelson's claim under NRS Sections 608.020-608.050 is appropriate because Nelson is still employed by the Defendant and is not an appropriate class representative. Nelson counters, in part, that the Court should not dismiss the claim in the interest of judicial economy since "former employees will become part of the case" once the Court "certifies the case as either a collective action under the FLSA or a class action under FRCP 23." Judge Du agrees with the Defendant. She explains that Sections 608.020 to 608.050 of the NRS address unpaid wages and compensation for employees who resign, quit, or are terminated from their jobs, and outline penalties for employers who fail to pay the former employees upon their termination or discharge. However, Nelson, the Party Plaintiff, and the three Opt-in Plaintiffs are all currently employed by the Defendant. They accordingly do not have standing to bring the claim on behalf of former employees and may not serve as class representatives. Since Nelson has failed to establish this "threshold issue" of standing, Judge Du grants the Defendant's Motion as to the Plaintiff's NRS Sections 608.020-608.050 claim and dismisses this claim without prejudice. However, the Plaintiffs may seek amendment if an appropriate class representative, who can properly represent the former employees, joins the lawsuit. D. Pre-Shift Cold Section Activities Under the FLSA The Defendant finally contends that the FAC lacks "factual allegations establishing that the donning of Cold Section PPE is compensable under the FLSA" and Nelson's allegations are "merely a recitation of the legal elements." Nelson counters that he sufficiently pled the claim because he alleged that donning the PPE is integral and indispensable to the job by "preventing workplace illness and injury" and is therefore compensable. Judge Du agrees with Nelson. Accepting Nelson's allegations as true, Nelson has stated a plausible FLSA claim for the Cold Section activities. In the FAC, Nelson sufficiently pled that donning the PPE prior to his shift was integral and indispensable to working in the freezer/refrigerator section of Defendant's warehouse because the PPE "prevent[s] workplace illness and injury due to the cold environment." Moreover, the RefrigiWear clothing that employees wear is specially and uniquely made for "helping cold storage employees stay warm and protected in the cooler and freezer while they work." However, according to Nelson, Cold Section employees are not compensated for the time it takes to don the PPE, which amounts to around 15 minutes per shift. In sum, Nelson has included sufficient factual allegations in the FAC to state a facially plausible claim that donning the PPE is compensable under the FLSA. Judge Du therefore permits Nelson's FLSA Cold Section claim to proceed and denies the Defendant's Motion as to this claim. III. Conclusion Judge Du notes that the parties made several arguments and cited to several cases not discussed. She has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court. Judge Du, therefore, granted in part and denied in part the Defendant's Motion to Dismiss the Amended Complaint. She denied as moot the Defendant's Motion to Dismiss the Original Complaint. A full-text copy of the Court's Feb. 9, 2022 Order is available at https://tinyurl.com/msy3dpb2 from Leagle.com. WASTE CONNECTIONS: Scheduling Order & Pretrial Dates Amended ------------------------------------------------------------ In the class action lawsuit captioned as SUNSHINE CHILDREN'S LEARNING CENTER, LLC, on behalf of itself and all others similarly situated, v. WASTE CONNECTIONS OF FLORIDA, INC., Case No. 0:21-cv-62123-BB (S.D. Fla.), the Hon. Judge Beth Bloom entered an order: 1. granting in part and denying in part the Joint Motion for Extension of Time to Exchange Expert Reports Regarding Class Certification filed on February 10, 2022; and 2. amending the scheduling order as follows: -- Parties exchange expert witness April 14, 2022 summaries or reports on issues of class certification: -- Parties exchange rebuttal expert May 16, 2022 witness summaries or reports on issues of class certification: -- Deadline for completing class June 22, 2022 certification discovery: -- Plaintiffs file motion for class July 6, 2022 certification: -- Parties disclose experts and Sept. 6, 2022 exchange expert witness summaries or reports: -- Parties exchange rebuttal expert Sept. 20, 2022 witness summaries or reports: -- All discovery, including expert Oct. 4, 2022 discovery, is completed: -- Parties must have completed Oct. 18, 2022 mediation and filed a mediation report: -- All pre-trial motions, motions Oct. 26, 2022 in limine, and Daubert motions (which include motions to strike experts) are filed. This deadline includes all dispositive motions: -- Parties submit joint pre-trial Jan. 17, 2023 stipulation in accordance with Local Rule 16.1(e), proposed jury instructions and verdict form, or proposed findings of fact and conclusions of law, as applicable: Waste Connections is located in Okahumpka, Florida and is part of the waste treatment and disposal industry. A copy of the Court's order dated Feb. 10, 2021 is available from PacerMonitor.com at https://bit.ly/3HXrqAz at no extra charge.[CC] WATERFIELD DESIGNS: Weekes Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Waterfield Designs, Inc. The case is styled as Robert Weekes, individually, and on behalf of all others similarly situated v. Waterfield Designs, Inc., Case No. 1:22-cv-01284 (S.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. WaterField Designs -- http://www.sfbags.com/-- is an innovative SF designer & manufacturer of bags & cases for the tech-savvy.[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 WENTZVILLE R-IV: Weekes Files Suit in E.D. Missouri --------------------------------------------------- A class action lawsuit has been filed against Wentzville R-IV School District. The case is styled as C.K.-W., a minor by and through her parent T.K.; D.L., by and through his parent Z.L.; individually and on behalf of those similarly situated v. Wentzville R-IV School District, Case No. 4:22-cv-00191 (E.D. Mo., Feb. 15, 2022). The nature of suit is stated as Other Civil Rights for the Civil Rights Act. Wentzville R-IV School District -- https://www.wentzville.k12.mo.us/ --- is a school district in Wentzville, Missouri, United States.[BN] The Plaintiffs are represented by: Anthony E. Rothert, Esq. AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 906 Olive St.. Suite 1130 St. Louis, MO 63101-1448 Phone: (314) 669-3420 Fax: (314) 652-3112 Email: trothert@aclu-mo.org WILSON LOGISTICS: Ruff Wage-and-Hour Suit Goes to N.D. California ----------------------------------------------------------------- The case styled BRIAN THOMAS RUFF, individually and on behalf of all others similarly situated v. WILSON LOGISTICS, INC.; and DOES 1 through 10, inclusive, Case No. 21CV004428, was removed from the Superior Court of the State of California, County of Alameda, to the U.S. District Court for the Northern District of California on February 17, 2022. The Clerk of Court for the Northern District of California assigned Case No. 3:22-cv-00988-SK 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 pay minimum wages, failure to pay overtime wages, failure to provide meal periods, failure to provide rest breaks, failure to pay all wages upon termination, failure to furnish accurate and itemized wage statements, failure to reimburse all business expenses, and unlawful deduction of wages. Wilson Logistics, Inc. is a family-owned trucking company, with its principal place of business located in Springfield, Missouri. [BN] The Defendant is represented by: Kathleen C. Jeffries, Esq. SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, LLP 2 North Lake Avenue, Suite 560 Pasadena, CA 91101-5671 Telephone: (626) 795-4700 Facsimile: (626) 795-4790 E-mail: kjeffries@scopelitis.com - and – Christopher J. Eckhart, Esq. SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, P.C. 10 West Market Street, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 637-1777 Facsimile: (317) 687-2414 E-mail: ceckhart@scopelitis.com WORK WARM: Paguada Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Work Warm, LLC. The case is styled as Josue Paguada, on behalf of himself and all others similarly situated v. Work Warm, LLC, Case No. 1:22-cv-01289 (S.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Work Warm, LLC (trade name Aeris) is in the Family Clothing Stores business.[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 WRIGHT STUFF: Hanyzkiewicz Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against The Wright Stuff, Inc. The case is styled as Marta Hanyzkiewicz, on behalf of herself and all others similarly situated v. The Wright Stuff, Inc., Case No. 1:22-cv-00843 (E.D.N.Y., Feb. 15, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Wright Stuff -- https://www.thewrightstuff.com/ -- provides adapted utensils, assistive devices, gifts for the elderly, seniors, disability aids, products for the handicapped, and lots of adaptive daily living aids that help make life easier.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com [*] Class Action Lead Plaintiff Warns About Online Fraudsters ------------------------------------------------------------- Matthew Lapierre, writing for Regina Leader-Post, reports that the lead plaintiff in a class-action lawsuit that successfully persuaded an Ottawa judge to ban the sound of air horns in downtown Ottawa for 10 days is being targeted by fraudsters online, one of her lawyers said on Twitter. In a tweet on Feb. 12, Emilie Taman, one of the lawyers who represents the lead plaintiff, Zexi Li, shared a screenshot of a Twitter account purportedly belonging to Li. "This is the second fake Twitter account in the name of our client, Zexi Li, that I have reported to Twitter in as many days," Tamman wrote. "Please do not interact with or amplify these accounts. Zexi is not on Twitter." The account was still active on Feb. 12 and, while it did not seem to be used for the purpose of asking people for money, Taman also warned anyone who wanted to support Li and the class action lawsuit to avoid online fundraisers on the crowdfunding site GoFundMe. If people did want to support the class action lawsuit, they could do so by donating on ottawafund.ca. "We are *not* associated with any GoFundMe fundraisers," Taman wrote. The money donated via the ottawafund site will go towards paying for legal fees associated with the class action suit and other expenses. The funds will be held by an "arm's length party to ensure there are checks and balances in place for the disbursement of the money," Tamman wrote. "Please also know that we are reading all of your messages," Tamman continued. "Many of you have sent your own difficult stories of how you've been impacted. Know that we are listening and contemplating ways in which we might expand the claim. Please stay tuned. "Thank you also to those who are sending evidence in the form of videos, screenshots and personal testimonials. We are grateful for all of the ways in which the community is coming together to seek accountability for the harm that has been caused to residents. Hang in there, Ottawa." Li is a 21-year-old downtown resident. The noise in her apartment caused by the truck horns blaring downtown was measured at more than 80 decibels, according to evidence presented in court. While Li is the only one named in the class-action lawsuit, the $9.8-million case is open to as many as 6,000 downtown residents who live in or close to the demonstration's "red zone." [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. 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