/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220405.mbx C L A S S A C T I O N R E P O R T E R Tuesday, April 5, 2022, Vol. 24, No. 62 Headlines 3M COMPANY: AFFF Products Can Cause Cancer, Wikes Suit Alleges 99 CENTS: Faces Aquino Suit Over Mismanagement of Retirement Plan ABBOTT LABORATORIES: Infant Milk Contains Cronobacter, Suit Says AGA SERVICE: Filing of Class Certification Bid Due August 5 ALASKA COMMUNICATIONS: Class Settlement in Peterson Wins Final Nod ALL WAYS AUTO: Faces Class Action Over Lease Agreement Violations ALLSTATE INDEM: Free Must File Class Cert. Bid by April 14 AMAZON.COM INC: Caudel Suit Moved From E.D. Cal. to W.D. Wash. AMERICAN HONDA: Court Granted in Part Bid to Dismiss Browning Suit APPLE INC: Orshan, et al., Seek to Certify Preinstall Subclass AUTO-OWNERS INSURANCE: Seeks OK to File Two Exhibits Under Seal AXIOM HEALTHCARE: Gordon Sues Over Healthcare Staff's Unpaid Wages BAMIA 2: Johnson Wage-and-Hour Suit Removed to E.D. California BANK OF AMERICA: Second Sched Order Entered in Philadelphia Suit BAYER AG: Investors Balk With Roundup & Monsanto Class Action BEASLEY LAW: Faces Class Action Over Alleged Ponzi Scheme BECTON DICKINSON: 7th Cir. Affirms Dismissal of Marion Class Suit BELL FLAVORS: Guzman BIPA Suit Removed to N.D. Illinois BOOHOO.COM USA: Stipulation on Deposition Scheduling OK'd in Khan CELSIUS HOLDINGS: Robbins Geller Reminds of May 16 Deadline CG CONSULTING: Ousley Seeks to Certify Class Action CHARLEYS PHILLY: Machuca Wage-and-Hour Suit Goes to E.D. California CIG LOGISTICS: Mobley Seeks Proper Wages for Well Site Operators CITIZENS BANK: Scheduling Order Entered in Chirchir Class Suit COLLECTION BUREAU: Court Administratively Closes Rivera Case COOK COUNTY, IL: Bid to Certify Class in Evans v. CCDOC Denied CRITICAL TELEPHONE: CMP & Scheduling Order Entered in Tavarez DELAWARE COUNTY, PA: Wins Summary Judgment v. Burford DOCUSIGN INC: Faces Weston Securities Suit in California Court DOORDASH INC: Yuquilema Wage-and-Hour Suit Removed to S.D.N.Y. ENCLARITY INC: Fulton Seeks to File Opposition Reply Under Seal ENOVIX CORP: Faces Prak Suit in California FIRST TRANSIT: Fulton Wage-and-Hour Suit Goes to C.D. California FLYWHEEL ENERGY: Seeks Extension to File Class Cert Bid Reply FROM THE HEART: Fails to Pay Overtime Pay, Crooks Suit Alleges FUNKO INC: Time for Class Cert Briefing Extended in Ferreira Suit GENERAL MILLS: Faces Suit Over Mislabeled Frozen Cheese Pizza Rolls GENERAL MOTORS: Class Certification Sought in Takata Airbag Suit GILEAD SCIENCES: Bid to Dismiss Staley Class Action Tossed GOVERNMENT EMPLOYEES: Court Certifies Claimants Class in Lewis Suit GRAB HOLDINGS: Bernstein Liebhard Discloses Class Action Lawsuit GREENE PASTURES: Faces Suit Over Violation of Real Property Tax Law HNTB CORPORATION: Morel Labor Suit Removed to S.D. California HOME CITY ICE: Court Certifies Class in Pansiera Suit HOME DEPOT: Deadline to File Class Cert Bids Reset to July 21 HOMOLOGY MEDICINES: Pomerantz Law Discloses Class Action I.C. SYSTEM: $11.8K in Attys.' Fees & Costs Awarded in Hancock Suit INGRID & ISABEL: CMP & Sched Order Entered in Cruz Class Suit INMAR INC: Court Denies Bid for Summary Judgment in Mr. Dee's Suit JP MORGAN: Court Refuses to Certify Rule 23 Class in Nypl Suit JUUL LABS: Bassett Unified Sues Over Deceptive E-Cigarette Ads JUUL LABS: Causes Youth E-Cigarette Crisis, Solana Beach Claims JUUL LABS: Causes Youth E-Cigarette Crisis, Teton School Suit Says JUUL LABS: E-Cigarette Ads Target Youth, Alameda Unified Suit Says JUUL LABS: E-Cigarette Ads Target Youth, Marlington Local Suit Says JUUL LABS: Easton School Sues Over Deceptive E-Cigarette Ads JUUL LABS: Faces Bliss School Suit Over Youth's E-Cigarette Ads JUUL LABS: Faces Clayton Suit Over Youth E-Cigarette Epidemic JUUL LABS: Faces South Summit Suit Over Youth E-Cigarette Epidemic JUUL LABS: Manton Consolidated Sues Over Youth's E-Cigarette Crisis JUUL LABS: Markets E-Cigarette to Youth, Juab School Suit Claims JUUL LABS: Markets E-Cigarette to Youth, Manchester Community Says JUUL LABS: Menominee Area Sues Over Youth's E-Cigarette Addiction JUUL LABS: Minidoka School Sues Over Youth E-Cigarette Campaign JUUL LABS: Ogdensburg City Sues Over E-Cigarette Crisis in N.Y. JUUL LABS: Promotes E-Cigarette Use Among Youth, Weber School Says JUUL LABS: River Valley Sues Over E-Cigarette's Risks to Youth JUUL LABS: Silver Consolidated Sues Over E-Cigarette Crisis in N.M. KELLER WILLIAMS: St. John Seeks Leave to File Confidential Info KIRKLAND'S INC: Faces Miles Class Suit in California Court KIRKLAND'S INC: Gennock Receipt Dispute Ongoing in Pennsylvania LEXUS OF MANHATTAN: Watson Seeks to Certify TCPA Classes LIDDLE & LIDDLE: Final OK of Class Settlement in Perchlak Sought LINDSAY ENTERTAINMENT: Loses Bid to Decertify Class in Tassy Suit LOUISIANA: $100-Million Settlement in Flooding Class Suit Reached MAPLEBEAR INC: Court Grants Arbitration Bid in Levine Class Suit MATTERPORT INC: Stemmelin Loses Bid for Class Certification MAXUM INDEMNITY: Consolidation of Henry and Gaudet Suits Denied MAYFIELD CONSUMER: Johnson Class Suit Removed to W.D. Kentucky MCDONALD'S CORP: Food Contains Unsafe Chemicals, Clark Suit Says MEDLINE INDUSTRIES: Ponce Labor Suit Removed to C.D. California METROPOLITAN TOWER: Hearing on Class Cert Bid Reset to June 15 NATIONWIDE MUTUAL: Court Denies Bid to Dismiss Sweeney ERISA Suit NEW HAMPSHIRE: Ct. Approves Discovery Plan in G.K. Suit NEW YORK: Bid to Decertify Class Tossed in Betances Suit NEXTGEN LEADS: Faces Weiss Suit Over Telephone Marketing Practices NIELSEN HOLDINGS: Court Junks as Moot Gordon Bid to Certify Class NIKE INC: Seeks to File Under Seal Portions of Class Cert. Bid NORMANDY, MO: Davis Seeks Certification of Class Action NOVARTIS: Direct Purchasers Seek to Certify Class NUVE MIGUEL: Must File Opposition to Class Cert Bid by May 2 NYC HARLEM: Initial Approval of Settlement in Medina Sought OAK PARK: Ricker Seeks Unpaid OT, Regular Wages Under FLSA, WWPCL OBI SEAFOODS: Bid to Extend Deadlines Tossed without Prejudice OBI SEAFOODS: Deadline to File Class Status Bid Extended to May 24 OMEGA HEALTHCARE: Setzer, Holtzman Seek to Certify Class OPHTHOTECH CORP: Settlement in Micholle Suit Gets Initial Nod PERKIOMEN VALLEY: Must File Bid to Dismiss Suit by April 12 RENT-A-DAUGHTER: Anderson Seeks Conditional Status of Collective RIVIAN AUTOMOTIVE: Bernstein Liebhard Reminds of May 6 Deadline ROBINHOOD MARKETS: Briefing Sched Entered in "Order Flow" Suit ROSARIO LLC: Roman Seeks OT Wages for Restaurant Staff Under FLSA RUSSELECTRIC INC: Sued Over Mismanagement of Retirement Fund SAN FRANCISCO, CA: Class Cert Briefing Schedule Proposed in Pierce SAN FRANCISCO: Johnson Labor Code Suit Removed to N.D. California SC REALTY: Fails to Pay Proper Wages Under FLSA, AMWA, Pratt Says SCRATCH SERVICES: Dicks FCRA Suit Removed to E.D. New York SICHUAN GOURMET: Court Denies Bid to Dismiss SG II From Xiao Suit SMILEDIRECTCLUB INC: Class Certification in Securities Suit Upheld SNAP INC: Arbitrator to Decide Over Minor Suit's Contract Signing ST. LOUIS, MO: Jones Suit Seeks to Certify Class & Subclass ST. LOUIS, MO: Jones, et al., Seek Leave to File Instanter STATE FARM: Faces Class-Action For Undervaluing Wrecked Cars STATE FARM: Seeks Extension to Respond to Martino Class Cert Bid STICKER MULE: Faces Valiente Suit Over Telephonic Sales Calls SUEZ WATER: Nicholls MPWL Suit Removed to D. Massachusetts TARGET CORP: New York Court Tosses Gordon's Amended Class Complaint TELEFONAKTIEBOLAGET LM: CEO, CFO Sued Over Alleged Corruption TIRAMISU RESTAURANT: Fails to Provide Overtime Wages, Mauricio Says TOTALENERGIES SE: Court Junks Gas Trading Suit TRANSWORLD SYSTEMS: Bid for Class Certification Stricken TRI-W GLOBAL: Powell Suit Seeks OT Pay for Employees Under FLSA TUPELO, MS: Court Tosses Edwards Bid for Reconsideration UHS OF TUCSON: FAA Applies in Adams Class Suit, Ariz. App. Holds UNITED STATES: HBA Seeks Deadline Extension to File Class Cert Bid UNITED SURGICAL: Texas Court Grants Bid to Dismiss Perkins Suit UNIVERSITY OF KENTUCKY: Niblock Bid for Class Status Partly Granted UPFIELD US INC: Ledezma Sues Over Mislabeled Vegetable Oil Spread VARIABLE ANNUITY: D.L. Markham ERISA Suit Transferred to S.D. Tex. VERTIV HOLDINGS: Gainey McKenna Reminds of May 23 Deadline VERTIV HOLDINGS: Robbins Geller Reminds of May 23 Deadline VIACOMCBS INC: Court Resets Case Schedule in DeRosa Class Suit VIVINT INC: Extension to File Class Cert Reply Sought VIVINT INC: Seeks Denial of Cunningham Class Certification Bid VIVINT SOLAR: Court Grants Dekker's Bid for Class Certification VIVINT SOLAR: Summary Judgment Bid in Dekker Suit Granted in Part VOLKSWAGEN GROUP: Faces Adamson Suit Over Antitrust Violation VOYAGER 888: King, et al., File Bid for for Class Certification WAL-MART ASSOCIATES: Seeks Extension to Oppose Class Cert Bid WELCOME SKATEBOARDS: CMP & Scheduling Order Entered in Sanchez Suit WOODS GOODS: CMP & Scheduling Order Entered in Cruz Suit ZARBEE'S INC: Faces Class Action Over Deceptive Gripe Water [*] Judge Rejects Class Counsel's Payout in Lithium Battery Suit ********* 3M COMPANY: AFFF Products Can Cause Cancer, Wikes Suit Alleges -------------------------------------------------------------- WILLIE WIKES, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-00981-RMG (D.S.C., March 25, 2022) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and firefighter trainees who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. He relied on the Defendants' instructions as to the proper handling of the products, says the suit. As a result of exposure to the Defendants' AFFF products, the Plaintiff was diagnosed with prostate cancer and kidney cancer. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 - and – Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Telephone: (631) 600-0000 Facsimile: (631) 543-5450 99 CENTS: Faces Aquino Suit Over Mismanagement of Retirement Plan ----------------------------------------------------------------- SALVADOR AQUINO; SUSAN FORD; MONICALAYLE GARCIA; BARBARA KRAUS; MARTHA LOPEZ; FRANCISCO MARTINEZ; and MEGAN SARGENT, individually and on behalf of all others similarly situated, Plaintiffs v. 99 CENTS ONLY STORES LLC; and THE RETIREMENT COMMITTEE OF THE 99 CENTS ONLY 401(K) PLAN, Defendants, Case No. 2:22-cv-01966 (C.D. Cal., Mar. 25, 2022) alleges violation of the Employee Retirement Income Security Act of 1974. The Plaintiff alleges in the complaint that the Defendants chose to accept the benefits of federal and state tax deferrals for their employees via a 401(k) plan, and the owners and executives of the Defendants organizations have benefitted financially for years from the same tax benefits. However, the Defendants have not followed ERISA's standard of care. The Plaintiffs were injured by the Defendants' lack of loyalty, lack of skill, flawed processes and imprudent decisions in breach of their fiduciary duties: (1) the Defendants offered the Plaintiffs, and the Plaintiffs invested in, higher cost fund shares when otherwise identical lower cost shares were available which caused participants diminished investment returns in their 401(k) accounts; (2) the Defendants permitted the Plaintiffs and other Plan participants to be charged excessive service fees, which reduced participants' Plan account balances and caused them diminished investment returns; and (3) the Defendants chose and continually offered the Plaintiffs, conflicted, expensive, proprietary target date funds, which also served as the default investment as opposed to a myriad of other lower cost, unconflicted, prudent options the Defendant's choices harmed participants or beneficiaries by reducing their Plan account balances through high fees and diminished investment returns, says the suit. 99 CENTS ONLY STORES LLC retails consumable and general merchandise. The Company offers groceries, pet care, gifts, health and beauty, clothing, eyewear, household, hardware, automotive accessories, catering supplies, office, garden, cleaning, and other related products. 99 Cents Only Stores serves customers in the United States. The Plaintiff is represented by: Christina A. Humphrey, Esq. CHRISTINA HUMPHREY LAW, P.C. 591 Telegraph Canyon Rd, #376 Chula Vista, CA 91910 Telephone: (805) 618-2924 Facsimile: (805) 618-2939 Email: christina@chumphreylaw.com -and- James A. Clark, Esq. Renee P. Ortega, Esq. TOWER LEGAL GROUP, P.C. 11335 Gold Express Drive, Ste. 105 Gold River, CA 95670 Telephone: (916) 361-6009 Facsimile: (916) 361-6019 Email: james.clark@towerlegalgroup.com renee.parras@towerlegalgroup.com ABBOTT LABORATORIES: Infant Milk Contains Cronobacter, Suit Says ---------------------------------------------------------------- ARTURO ANDALUZ, individually and on behalf of all others similarly situated, Plaintiff v. ABBOTT LABORATORIES, INC. d/b/a ABBOTT NUTRITION, Defendant, Case No. 2:22-cv-02001 (C.D., Cal., Mar. 25, 2022) is a class action lawsuit by the Plaintiff alleging that Similac, Alimentum, and EleCare Infant formula manufactured, sold and distributed by the Defendant ("Products") contains Cronobacter sakazakii. The Plaintiff asserts in the complaint that the presence of Cronobacter sakazakii in Defendant's Similac, Alimentum, and EleCare products was not disclosed in the products' label, in violation of state and federal law. The Plaintiff was unaware that the Defendant's Similac, Alimentum, and EleCare products may be adulterated with cronobacter sakazakii. The Plaintiff purchased the Defendant's products on the assumption that the labeling of the Defendant's products were accurate and that the products were unadulterated, safe and effective. The Plaintiff would not have purchased the Defendant's Similac, Alimentum, and EleCare products had he known there was a risk the products may contain Cronobacter sakazakii. As a result, the Plaintiff allegedly suffered injury in fact when he spent money to purchase products, he would not otherwise have purchased absent the Defendant's misconduct, as alleged herein. ABBOTT LABORATORIES INTERNATIONAL CO. was founded in 1946. The company's line of business includes the wholesale distribution of surgical and other medical instruments, apparatus, and equipment. [BN] The Plaintiff is represented by: Marcus J. Bradley, Esq. Kiley L. Grombacher, Esq. Lirit A. King, Esq. BRADLEY/GROMBACHER, LLP 31365 Oak Crest Dr., Suite 240 Westlake Village, CA 91361 Telephone: (805) 270-7100 Facsimile: (805) 270-7589 Email: mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com lking@bradleygrombacher.com - and - Sin-Ting Mary Liu, Esq. E. Samuel Geisler, Esq. Caitlyn Prichard Miller, Esq. AYLSTOCK WITKIN KREIS & OVERHOLTZ, PLLC 17 East Main Street, Suite 200 Pensacola, FL 32502 Telephone: (850) 202-1010 Facsimile: (850) 916-7449 Email: mliu@awkolaw.com sgeisler@awkolaw.com cmiller@awkolaw.com AGA SERVICE: Filing of Class Certification Bid Due August 5 ----------------------------------------------------------- In the class action lawsuit captioned as ADAM ELGINDY and JULIANNE CHUANROONG, on behalf of themselves, the general public, and those similarly situated, v. AGA SERVICE COMPANY (d/b/a ALLIANZ GLOBAL ASSISTANCE), JEFFERSON INSURANCE COMPANY, and BCS INSURANCE COMPANY, Case No. 4:20-cv-06304-JST (N.D. Cal.), the Hon. Judge Jon S. Tigar entered an order regarding schedule for class certification motion as follows: Current Date New Date Further case management March 30, 2022 May 11, 2022 statement due Further CMC April 1, 2022 May 13, 2022 Class certification May 6, 2022 Aug. 5, 2022 motion due: Class certification July 15, 2022 Oct. 14, 2022 opposition due: A copy of the Court's order dated March 16, 2022 is available from PacerMonitor.com at https://bit.ly/3DzRZdH at no extra charge.[CC] The Plaintiffs are represented by: Seth A. Safier, Esq. Stephen M. Raab, Esq. GUTRIDE SAFIER LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 336-6545 Facsimile: (415) 449-6469 E-mail: stephen@gutridesafier.com The Defendants are represented by: Gayle I. Jenkins, Esq. Elizabeth J. Ireland, Esq. Janelle A. Li-A-Ping, Esq. WINSTON & STRAWN LLP 333 S. Grand Avenue Los Angeles, CA 90071-1543 Telephone: (213) 615-1700 Facsimile: (213) 615-1750 E-mail: gjenkins@winston.com eireland@winston.com jliaping@winston.com ALASKA COMMUNICATIONS: Class Settlement in Peterson Wins Final Nod ------------------------------------------------------------------ In the class action lawsuit captioned as LAURA LEE PETERSON, Individually and on Behalf of All Others Similarly Situated, v. ALASKA COMMUNICATIONS SYSTEMS GROUP, INC. AND ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., d/b/a ALASKA COMMUNICATIONS, Case No. 3:12-cv-00090-TMB-MMS (D. Ala.), the Hon. Judge Timothy M. Burgess entered an order: 1. granting in their entirety the Plaintiffs' Motion for Final Approval of the Class Settlement and Plaintiffs' Motion for Attorneys' Fees and Costs; and 2. approving the Settlement Agreement as fair, reasonable, and adequate pursuant to Federal Rule of Civil Procedure 23(e) and as meeting the applicable standards for settlement under the Fair Labor Standards Act (FLSA). Upon the Effective Date of the Settlement, the Settlement Class Members will fully release and discharge the Released Parties from the Released Claims, as defined below: "Released Claims" means the following: Any and all claims that were or could have been pled in the Complaint under state or federal wage and hour laws (including without limitation, the Alaska Wage and Hour Act and the FLSA), arising out of the same transactions, series of connected transactions, occurrences, or nucleus of operative facts that form the basis of the claims that were alleged in the Complaint, including without limitation, any claims that Settlement Class Members were not paid overtime when working greater than eight hours in a day or 40 hours in a week for ACS, as well as all derivative claims for pre-judgment and post-judgment interest, penalties, liquidated damages, and attorneys' fees and costs. However, "Released Claims" does not include or cover claims relating to any actions or omissions occurring after the Preliminary Approval Date. The Court enters final judgment on the Class Claims in accordance with the terms of the Settlement and this Order, and the entire Lawsuit is dismissed with prejudice and without costs to any Party. 103 By virtue of this Order, all Settlement Class Members, including Class Representatives Peterson and Shephard, are bound by the Settlement Agreement and permanently barred from prosecuting Released Claims against any of the Released Parties, as those terms are defined in the Settlement and this Order. A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3tT4f5D at no extra charge.[CC] ALL WAYS AUTO: Faces Class Action Over Lease Agreement Violations ----------------------------------------------------------------- Christina Heath at madisonrecord.com reports that a truck driver claims his employer made deductions from his paycheck without providing any reasoning for the withdrawals. Herbert Bryant III filed a federal class action lawsuit in the Northern District Court of Illinois before it was transferred to the U.S. District Court for the Southern District of Illinois. The lawsuit was filed against All Ways Auto Transport LLC, doing business as AW Transport, and Does 1-100, alleging violation of the Truth in Leasing Act and Truth in Leasing Regulation, breach of contract and breach of contract of good faith and fair dealing. According to the lawsuit, Bryant applied for a truck driving position with the defendant. He claims an advertisement promised truck drivers a $2,000 down payment on a truck lease followed by driving assignments that would pay 85percent of the gross load receipts for each trip. Upon being hired, Bryant picked up a 2013 Volvo truck from Bush Truck Leasing, Inc. The lease for the truck required an initial payment of $2,500, plus weekly payments of $704.30. Bryant claims the truck had repeated mechanical failures and was submitted to various repair locations for maintenance. According to the agreement with the defendant, bills would be sent directly to the defendant and the amounts would be deducted from Bryant's account. Bryant claims he made numerous requests for itemized invoices of repairs in payments, but the defendant allegedly failed to provide such information. In October 2018, Bryant entered into a second lease agreement for a 2015 International Conventional Sleeper to drive for work due to continuing mechanical failures of the Volvo. Bryant claims the defendant would regularly deduct approximately $388.05 from his payment without providing any reasoning for the deductions. Bryant claims the defendant took the deductions from all class members' accounts and therefore violated the Truth in Leasing Act and Truth in Leasing Regulation Acts. Bryant seeks compensatory damages and restitution of all monies due including the value of unlawfully covered trips and disgorged profits from unfair and unlawful business practices. He also seeks preliminary and permanent injunction of the defendant for alleged violations, actual and statutory damages, pre-judgment interest, declaratory relief, court costs and reasonable attorneys fees. Bryant is represented by Katrina Carroll of Lynch Carpenter LLP in Chicago. U.S. District Court for the Southern District case number 3:22-cv-00279-SMY [GN] ALLSTATE INDEM: Free Must File Class Cert. Bid by April 14 ---------------------------------------------------------- In the class action lawsuit captioned as DAPHNE NOBLE FREE, v. ALLSTATE INDEM. CO., Case No. 9:20-cv-00190-MJT (E.D. Tex.), the Hon. Judge Michael J. Truncale entered a third amended scheduling order as follows: -- The Plaintiff shall file her April 14, 2022 motion for class certification, supporting brief and all evidence in support of class certification by: -- The Defendant shall file its May 13, 2022 OPPOSITION to class certification and all evidence in opposition to class certification by: -- The Plaintiff shall file a Reply May 27, 2022 brief in support of class certification by: -- Any Daubert motions should be April 11, 2022 filed by this date: -- Responses to any Daubert May 16, 2022 motions should be filed by: -- Replies to any Daubert motions May 30, 2022 should be filed by: -- Pre-class certification June 17, 2022 conference: -- Lists of witnesses and exhibits June 30, 2022 to be used at the Class Certification: -- Hearing on class certification: July 14, 2022 A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3LrXwWe at no extra charge.[CC] AMAZON.COM INC: Caudel Suit Moved From E.D. Cal. to W.D. Wash. -------------------------------------------------------------- The case styled AMANDA CAUDEL, individually and on behalf of all others similarly situated v. AMAZON.COM, INC., Case No. 2:20-cv-00848-KJM-KJN, was transferred from the U.S. District Court for the Eastern District of California to the U.S. District Court for the Western District of Washington on March 28, 2022. The Clerk of Court for the Western District of Washington assigned Case No. 2:22-cv-00401-RSM to the proceeding. The case arises from the Defendant's alleged violations of the California's Consumers Legal Remedies Act, the California's False Advertising Law, and the California's Unfair Competition Law by engaging in false, deceptive and misleading advertising and marketing of its video content services. Amazon.com, Inc. is an American online retailer, with its principal place of business in Seattle, Washington. [BN] The Plaintiff is represented by: Michael R. Reese, Esq. Carlos F. Ramirez, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 643-0500 E-mail: mreese@reesellp.com cramirez@reesellp.com - and – George V. Granade, Esq. REESE LLP 8484 Wilshire Boulevard, Suite 515 Los Angeles, CA 90211 Telephone: (310) 393-0070 E-mail: ggranade@reesellp.com - and – Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 505 Northern Blvd., Ste. 311 Great Neck, NY 11021-5101 Telephone: (516) 303-0552 E-mail: spencer@spencersheehan.com AMERICAN HONDA: Court Granted in Part Bid to Dismiss Browning Suit ------------------------------------------------------------------ In the case, RONDA ANN BROWNING, et al., Plaintiffs v. AMERICAN HONDA MOTOR CO., INC., et al., Defendants, Case No. 20-cv-05417-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted in part with leave to amend and denied in part Defendant Honda's motion to dismiss the Second Amended Complaint. I. Introduction In the putative class action, the Plaintiffs allege two defects in their 2018-2019 Honda Odyssey vehicles, which are equipped with a 9-speed automatic transmission called the ZF 9HP Automatic Transmission. The Plaintiffs allege that the Transmission (1) has two modules in its software that fail to communicate properly and (2) torn sealing gaskets that occur during assembly. These defects, Plaintiffs claim, cause "rough and delayed shifting, loud noises during shifting, harsh engagement of gears, sudden and harsh accelerations and decelerations, and sudden loss of power." Eight named Plaintiffs seek to represent a nationwide class and seven subclasses, each of which asserts implied warranty, express warranty, and state consumer protection claims. Before the Court is Defendant American Honda's motion to dismiss the Second Amended Complaint ("SAC") on multiple grounds. The Plaintiffs oppose the motion, and the Court held oral argument on Feb. 3, 2022. II. Background As alleged in the SAC, and accepted as true for the purposes of this motion, Honda designs, manufacturers, markets, distributes, sells, and services the Honda Odyssey vehicle. The Plaintiffs allege that in 2014, Honda began equipping certain of its vehicles with a 9-speed automatic transmission called the ZF 9HP Automatic Transmission. The Transmission uses a unique 9.8 ratio spread and computer-controlled shifting that were marketed as a significant technological advancement from previous transmissions. The different ratio spread ideally allows for shorter shifts between gears, keeping the engine in a narrow, optimal band of RPMs for as long as possible, and borrows some characteristics of manual transmissions, such as "dog clutches," enabling greater fuel efficiency. The Plaintiffs allege, however, that the Transmission suffers from two defects. First, they allege that "the transmission end cover sealing gasket was damaged during the manufacturing, assembly, and/or installing process" in the Odyssey vehicles (the "Sealing Gasket Defect"). Because of the damaged sealing gasket, the Transmission is not properly sealed and thus leaks fluid. The leak results in insufficient transmission fluid, which causes the Transmission to fail to maintain necessary hydraulic pressure or properly lubricated parts. This results in gear slippage, difficulty switching gears, lurching, excess noise from the Transmission, a burning smell, and even transmission failure. Second, the Plaintiffs allege that "there is improper design and/or calibration of the software in control of the Transmission, including the Transmission Control Module and the Powertrain Control Module" in the Odyssey vehicles (the "Software Calibration Defect"). The Transmission Control Module and the Powertrain Control Module control the function of the transmission and its interaction with the engine. While the Transmission may be delivered by a component manufacture with software already programmed, Honda must ensure that the software is properly calibrated to function in its own vehicles. The Plaintiffs allege that Honda has failed to do this properly, resulting in mistimed gear shifting. Id. This causes a rough, delayed, or sudden failure to shift; grinding or other loud noises during shifting; harsh engagement of gears; sudden or harsh accelerations or decelerations; and sudden loss of power Plaintiffs Ronda Ann Browning, Divina Pappas, Brian Pappas, Kali Wescott, Eric Wescott, Tony Boatwright, Chuen Yong, and Daniel Pina each purchased a Honda Odyssey vehicle in the model years 2018 or 2019. Based on their allegations, the Plaintiffs have filed suit against Honda asserting claims for breach of implied warranty (Florida, Ohio, South Carolina, Texas, California), breach of express warranty (South Carolina, Texas, California), violation of state consumer protection statutes (Florida, Ohio, Texas, California), and fraud by omission/fraudulent concealment (no state law specified). Each claim is brought by the Plaintiff or the Plaintiffs in that respective state. The Plaintiffs further seek to represent a nationwide class of individuals who purchased 2018-2019 Honda Odyssey vehicles equipped with the Transmission. Each Plaintiff (or couple of Plaintiffs) seeks to represent a subclass in their individual state, with Pina seeking to represent both a California subclass and a Consumer Legal Remedies Act ("CLRA") subclass. III. Discussion Honda's motion raises a panoply of issues with the Plaintiffs' pleading, some of which apply generally to all claims and others that apply only to specific Plaintiffs or states' laws. A. Adequacy of Defect Allegations Honda first argues that the Plaintiffs do not adequately plead facts to allege defects in their vehicles. Judge Freeman will not penalize the Plaintiffs for asserting similar allegations in multiple cases against the same manufacturer. Of course, it will be up to the Plaintiffs to actually prove those defects exist in their vehicles. She finds that there are no allegations that any Plaintiff actually has a vehicle that experienced the Sealing Gasket Defect. This means that no Plaintiff has suffered an "injury in fact" as to the Sealing Gasket Defect. Without such an alleged injury, these Plaintiffs cannot go forward on the claims as to this defect. At the hearing, Judge Freeman discussed with the parties whether she should give leave to amend on this issue. Because she is granting the Plaintiffs leave to amend on some of their statutory fraud claims, Judge Freeman will grant the Plaintiffs leave to amend on the Sealing Gasket Defect. Accordingly, Honda's motion to dismiss based on the Plaintiffs' inadequate pleading of the Sealing Gasket Defect is granted with leave to amend. Leave to amend is limited to adding allegations that the vehicle of one or more of the Plaintiffs experienced the Sealing Gasket Defect. If the Plaintiffs cannot so allege, they must remove allegations regarding this defect from their amended complaint. B. Implied Warranty Claims Honda next challenges the Plaintiffs' breach of implied warranty claims. It makes one argument that applies to all of the implied warranty claims and three arguments that apply only to the Florida, Ohio, and Texas claims. Judge Freeman considers the general argument first before examining the Florida, Ohio, and Texas claims. i. Merchantability Allegations Judge Freeman finds that the Court has already found that the Plaintiffs have adequately alleged a defect, and she sees no reason to depart from its previous conclusion. The Plaintiffs' allegations regarding the results of the alleged defects prevent the conclusion, as a matter of law, that the vehicles were "safe, reliable transportation." Because she cannot conclude as a matter of law that the Plaintiffs' vehicles were merchantable if their allegations are true, Judge Freeman denies the motion to dismiss the breach of implied warranty claims on this ground. ii. Florida - Claim 2 The second claim in the SAC -- asserted by Plaintiff Browning -- is for breach of implied warranty under Florida law. As Honda argues, the Court previously dismissed this claim without leave to amend due to the lack of privity between her and Honda. This claim cannot be reasserted, so Honda's motion to dismiss the claim is granted without leave to amend. iii. Ohio - Claim 4 The Pappases assert the fourth claim in the SAC for breach of the implied warranty of merchantability under Ohio law. Honda argues that, as the Court agreed in the previous motion to dismiss, the Court should dismiss this claim for lack of privity between Honda and the Plaintiffs, who purchased their vehicles from authorized dealers. Honda argues that the additional allegations the Plaintiffs have added regarding the existence of the express warranty and agency or third-party beneficiary relationships do not change the previous decision the Court reached. The Plaintiffs argue that those two sets of allegations and their reliance on Honda's advertisements negate the need to show privity. Judge Freeman holds that the Plaintiffs have not sufficiently alleged privity between the Pappases and Honda under Ohio law. Because she identified this deficiency in the order on the prior motion to dismiss, Judge Freeman granted without leave to amend the instant motion to dismiss the Ohio claim for breach of implied warranty. iv. Texas - Claim 9 Yong asserts the ninth claim in the SAC for breach of implied warranty under Texas law. The Court previously dismissed the claim with leave to amend for failure to allege pre-suit notice. Honda argues that Yong has still failed to plead that he made proper pre-suit notice. The Plaintiffs argue that Yong satisfied pre-suit notice when he (1) brought his vehicle to the dealership and complained of the defects, and (2) sent a pre-suit notice letter under Texas law on Dec. 12, 2020, eight months before filing the SAC. Judge Freeman finds that Yong's allegations do not satisfy the pre-suit notice requirement under Texas law. The allegations that Yong points to as satisfying the pre-suit notice requirement -- his visit to the dealership and his pre-suit notice letter sent three days before he joined this case as a plaintiff -- are the same ones as were in the First Amended Complaint, which the Court found insufficient to satisfy the requirement. Judge Freeman concludes that Yong has thus failed to adequately allege pre-suit notice as required under Texas law. Because this defect was also identified in the prior order, the motion to dismiss the claim for breach of implied warranty under Texas law will be granted without leave to amend. C. Express Warranty Claims Honda next challenges the adequacy of the Plaintiffs' pleading for their claims for breach of express warranty. Judge Freeman considers Honda's three arguments in turn: Dirst, that the claim for breach of express warranty under Texas law fails to lack of pre-suit notice; second, that the Software Calibration Defect is actually a design defect that is not covered by the express warranty at issue; and third, that the Plaintiffs have not pled facts demonstrating a refusal to repair. i. Texas - Claim 9 The ninth claim in the SAC is for breach of express warranty under Texas law. This claim also required Yong to provide Honda with pre-suit notice. he Court has already found Yong's allegations of pre-suit notice insufficient for his breach of implied warranty claim. That analysis applies equally here. Because Yong has not adequately alleged pre-suit notice, as the Court's prior order required, the motion to dismiss the Texas claim for breach of express warranty is graned without leave to amend. ii. Software Calibration Defect Honda argues that the Software Calibration Defect, which Plaintiffs assert is a manufacturing defect, is actually a design defect. Judge Freeman finds that the Plaintiffs have plausibly pled that the Software Calibration Defect is a manufacturing defect, and thus denies Honda's motion to dismiss on this ground. The Plaintiffs are on notice that if discovery reveals that this defect exists due to the Odyssey's specifications, it will be a design defect for which they cannot sustain a breach of express warranty claim. iii. Refusal to Repair Allegations Honda's next argument against the Plaintiffs' breach of express warranty claim is that they have not adequately pled a refusal to repair. This argument is of two parts. First, Honda says that Boatwright has not adequately alleged a refusal to repair because he only brought his vehicle into the dealer one time. Second, Honda says that Boatwright, Yong, and Pina have not pled a refusal to repair because they do not plead that the dealers identified a problem and refused to repair it. The Plaintiffs counter by defending the sufficiency of their allegations. Judge Freeman agrees with Honda, and has already held, that more than one presentation to the dealer is required to plead a refusal to repair. She however, disagrees with Honda's argument that a dealership does not "refuse" to repair a vehicle when it does not identify a problem. It would be too easy to avoid warranty claims if a dealer could merely deny that it identified a problem even if there were symptoms of it. Accordingly, Honda's motion to dismiss Boatwright's breach of express warranty claim is granted without leave to amend. Honda's motion to dismiss Yong and Pina's breach of express warranty claims is denied. D. Consumer Protection Claims The Plaintiffs assert four claims under the consumer protection statutes in Florida, Ohio, Texas, and California. Honda moves to dismiss these claims on several grounds. One of those arguments is specific to the Ohio claim and the others apply to all of the consumer protection claims. i. Ohio - Claim 3 Judge Freeman first addresses Honda's argument that is specific to the Ohio consumer protection claim. Honda argues that the Ohio claim is untimely because the Ohio statute has a strict two-year statute of limitations. Because the Pappases bought their Odyssey more than two years before filing suit, the claim is time-barred, Honda says. The Plaintiffs respond that the Ohio statute is triggered by the occurrence of a violation, not the date of a "consumer transaction" as defined under the statute. Judge Freeman agrees with Honda. She holds that the Plaintiffs provide no Ohio case authority for the proposition that a repair visit over one year after the transaction at issue -- the Pappases purchase of their Odyssey -- is fairly characterized as "in connection" with that transaction. She declines to stretch the Ohio statute and the "absolute" statute of limitations without such authority. The claim is thus barred by the statute of limitations, and Honda's motion to dismiss the claim is granted without leave to amend. ii. Rule 9(b) Honda's other arguments against the consumer protection claims come under the umbrella of Rule 9(b). Claims of fraud must be accompanied by the "who, what, when, where, and how" of the misconduct alleged. The parties agree that all of the consumer protection claims are subject to Rule 9(b). With that legal standard in mind, Judge Freeman proceeds to analyze Honda's arguments. He holds that (i) the Plaintiffs have alleged sufficient facts about each Defendant for purposes of Rule 9(b); and (ii) the Plaintiffs have satisfied Rule 9(b) with respect to specificity of their omissions allegations; (iii) the Plaintiffs' allegations about TSBs that purportedly relate to the Software Calibration Defect are not adequately pled at present; and (iv) the Plaintiffs have not provided factual allegations to support their conclusory statements that Honda "actively concealed and failed to disclose the Defects." In sum, Judge Freeman concludes that while the Plaintiffs have not provided plausible allegations establishing Honda's pre-sale knowledge or Honda's active concealment, she finds that leave to amend is warranted. The Plaintiffs may be able to address some of these defects with amendment, and so the Court cannot say that leave to amend would be futile. Given that this is the Court's first detailed analysis of the various bases the Plaintiffs assert for Honda's duty to disclose, the Plaintiffs will be given leave to amend. Honda's motion to dismiss the Plaintiffs' consumer protection claims is granted with leave to amend, with the exception of the motion to dismiss the claim under Ohio's consumer protection statute, which is granted without leave to amend. E. Fraud Claim and the Ohio and Michigan Plaintiffs and Subclasses Finally, Judge Freeman addresses two other arguments Honda makes as to specific claims and the Plaintiffs. First, the Plaintiffs for the first time in their Second Amended Complaint assert a common law claim for "fraud by omission and/or fraudulent concealment." Honda argues that this claim must be dismissed because the Court's previous order restricted amendments to "the existing claims of the current parties." The Plaintiffs do not respond to this argument. While Honda also makes substantive arguments against the fraud claim, Judge Freeman need not reach them because it agrees that adding the fraud claim exceeded the scope of permissible amendment as specified in the previous order. Accordingly, the common law fraud claim is dismissed as improperly added to the Second Amended Complaint. Second, Honda argues that because Michigan plaintiffs Kali and Eric Wescott no longer assert claims, they should be dismissed from the case and the Michigan subclass stricken. The Plaintiffs also do not respond to this argument. Judge Freeman agrees with Honda that both Wescotts should be dismissed and the Michigan subclass stricken because the operative complaint does not assert any claims on their behalf. With no claims left, the Wescotts are dismissed, and without Michigan residents left to represent the Michigan subclass, that subclass is stricken. Because the Order also dismisses the only two claims asserted by Divina and Brian Pappas, they are also dismissed from the case, and the Ohio subclass they sought to represent is stricken. IV. Order For the foregoing reasons, Honda's motion to dismiss is: a. denied, as to Honda's argument that the Software Calibration Defect is not adequately pled; b. granted with leave to amend, as to Honda's argument that the Sealing Gasket Defect is not adequately pled, with leave to amend limited to alleging that the vehicles of one or more Plaintiffs exhibited the Sealing Gasket Defect; c. granted without leave to amend, as to the second claim for breach of implied warranty under Florida law; d. granted without leave to amend, as to the fourth claim for breach of implied warranty under Ohio law; e. denied, as to the sixth claim for breach of implied warranty under South Carolina law; f. granted without leave to amend, as to the ninth claim for breach of implied warranty under Texas law; g. denied, as to the eleventh cause of action for breach of implied warranty under the Song-Beverly Consumer Warranty Act; h. granted without leave to amend, as to the fifth claim for breach of express warranty under South Carolina law; i. denied, as to the eighth claim for breach of express warranty under Texas law; j. denied, as to the twelfth claim for breach of express warranty under California law; k. granted with leave to amend, as to the first claim for violation of the Florida Deceptive and Unfair Trade Practices Act; l. granted without leave to amend, as to the third claim for violation of Ohio Consumer Sales Practices Act; m. granted without leave to amend, as to seventh claim for violation of the Texas Deceptive Trade Practices-Consumer Protection Act; n. granted without leave to amend, as to the tenth claim for violation of the California Consumer Legal Remedies Act; and o. granted without leave to amend, as to the thirteenth claim for fraud by omission and/or fraudulent concealment. Additionally, because she has dismissed all of their claims, Judge Freeman dismissed Plaintiffs Divina Pappas, Brian Pappas, Kali Wescott, and Eric Wescott from the case. The Michigan and Ohio subclasses they purported to represent are struck. The Plaintiffs will file an amended complaint within 45 days of the Order. Failure to meet the deadline to file an amended complaint or failure to cure the deficiencies identified on the record or in the Order will result in a dismissal of the deficient claims with prejudice. The Plaintiffs' amendments will not exceed the scope allowed by the Court in the Order. In the event that a further motion to dismiss is filed, it will be limited to the claims amended pursuant to this order and briefing will not exceed 15-15-7 pages. A full-text copy of the Court's March 18, 2022 Order is available at https://tinyurl.com/mvtwshzx from Leagle.com. APPLE INC: Orshan, et al., Seek to Certify Preinstall Subclass -------------------------------------------------------------- In the class action lawsuit captioned as PAUL ORSHAN, CHRISTOPHER ENDARA, DAVID HENDERSON, and STEVEN NEOCLEOUS, individually, and on behalf of all others similarly situated, v. APPLE INC, Case No. 5:14-cv-05659-EJD (N.D. Cal.), the Plaintiffs ask the Court to enter an order, pursuant to Rules 23(a) and 6 (b)(3), and in the alternative, Rule 23(c)(4) of the Federal Rules of Civil Procedure: 1. certifying: (1) a "Preinstall Subclass" consisting of all persons who purchased new Devices 8 (16GB iPhones and iPads from Apple, Inc.) in the United States during the Class Period with iOS 8 preinstalled, and (b) an "Upgrade Subclass" consisting of all persons who purchased new Devices in the United States during the Class Period with a predecessor operating system (iOS) and subsequently installed iOS 8. Excluded from the Class are Defendant Apple Inc. ("Apple"), its parents, subsidiaries, affiliates, officers and directors; any entity in which Apple has a controlling interest; governmental entities; and all judges assigned to hear any aspect of this litigation, as well as their staff and immediate family members;" and 2. appointing them as Class Representatives and appointing the law firms of Handley Farah & Anderson PLLC, Audet & Partners, LLP, Baron & Herskowitz, Cuneo Gilbert & Laduca, LLP, Lockridge Grindal Nauen PLLP, and Halunen & Associates as Class Counsel. Apple is an American multinational technology company that specializes in consumer electronics, software and online services. The Plaintiffs allege that Apple uniformly marketed and advertised the smart phone devices as having "16GB" of storage capacity -- per Apple, 16 gigabytes or 16 bilion bytes – availabl for consumers' own personal use with no disclosure that consumers were actually barred from using a significant portion of the storage. A copy of the Plaintiffs' motion dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3LxpYGl at no extra charge.[CC] The Plaintiffs are represented by: Michael McShane, Esq. Ling Y. Kkuang, Esq. Kurt D. Kessler, Esq. AUDET & PARTNERS, LLP 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Telephone: (415) 568-2555 Facsimile: (415) 568-1776 E-mail: mmcshane@audetlaw.com lkuang@audetlaw.com kkessler@audetlaw.com - and - William H. Anderson HANDLEY FARAH & ANDERSON PLLC 4730 Table Mesa Drive Suite G-200 Boulder, CO 80305 Telephone: (303) 800-9109 E-mail: wanderson@hajustice.com - and - Robert K. Shelquist, Esq. Rebecca A. Peterson, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone 612-339-6900 E-mail: rkshelquist@locklaw.com rapeterson@locklaw.com - and - Jon M. Herskowitz BARON & HERSKOWITZ 9100 S. Dadeland Blvd., Suite 1704 Miami, Fl. 33156 Telephone: (305) 670-0101 Facsimile: (305) 670-2393 E-mail: jon@bhfloridalaw.com - and - Charles J. Laduca, Esq. CUNEO GILBERT & LADUCA, LLP 4725 Wisconsin Avenue, NW Washington, DC 20016 Telephone: (202) 789-3960 Facsimile: (202) 789-1813 E-mail: charlesl@cuneolaw.com - and - Clayton D. Halunen, Esq. HALUNEN LAW 1650 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 605−4098 Facsimile: (612) 605−4099 E-mail: halunene@halunenlaw.com AUTO-OWNERS INSURANCE: Seeks OK to File Two Exhibits Under Seal --------------------------------------------------------------- In the class action lawsuit captioned as MSP RECOVERY CLAIMS, SERIES LLC, MSP RECOVERY CLAIMS SERIES 44, LLC v. AUTO-OWNERS INSURANCE COMPANY, OWNERS INSURANCE COMPANY, and SOUTHERN-OWNERS INSURANCE COMPANY, Case No. (S.D. Fla.), the Defendants ask the Court to permit the filing under seal of two of the four exhibits to their Memorandum Of Law In Opposition to Plaintiffs' motion For class certification. The exhibits are documents produced by the parties which have been designated as confidential under the December 4, 2021 Stipulated Protective Order. Under that Order, the exhibits must be filed under seal in accordance with Local Rule 5.4(b). Sealing the exhibits will not impair court function, and there is no less-restrictive alternative to sealing the exhibits. Defendants request that the exhibits to the motion for class certification remain sealed for the duration of the litigation or until further order of the Court, the Defendants say. MSP is an industry pioneer in obtaining reimbursements for Medicare, Medicaid, commercial insurance, and other healthcare entities. Auto-Owners is a mutual insurance company that provides life, home, car and business insurance. A copy of the Defendants' motion dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3iRvdEq at no extra charge.[CC] The Defendants are represented by: Spencer H. Silverglate, Esq. CLARK SILVERGLATE, P.A. E-mail: ssilverglate@cspalaw.com 799 Brickell Plaza, Suite 900 Miami, FL 33131 Telephone: (305) 377-0700 Facsimile: (305) 377-3001 - and - Lori McAllister, Esq. DYKEMA Capitol View 201 Townsend Street, Suite 900 Lansing, MI 48933 Telephone: (517) 374-9150 Facsimile: (855) 258-3519 E-mail: LMcAllister@dykema.com AXIOM HEALTHCARE: Gordon Sues Over Healthcare Staff's Unpaid Wages ------------------------------------------------------------------ LASHAUNA GORDON, HYDIA GRIFFIN and QUINTASHIA HARDYWAY, on behalf of themselves and all others similarly situated, Plaintiffs v. AXIOM HEALTHCARE SERVICES, LLC, and REED'S COVE HEALTH AND REHABILITATION, LLC, Defendants, Case No. 6:22-cv-01078 (D. Kan., March 25, 2022) is a class action against the Defendants for their failure to compensate the Plaintiffs and similarly situated workers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act and the Kansas Wage Payment Act. Plaintiff Hardyway was employed as a certified nurse assistant while Plaintiffs Gordon and Griffin were employed as certified medication aides. Axiom Healthcare Services, LLC is a healthcare services provider based in Wichita, Kansas. Reed's Cove Health and Rehabilitation, LLC is a skilled nursing and rehabilitation services provider based in Wichita, Kansas. [BN] The Plaintiffs are represented by: Donald N. Peterson, II, Esq. Sean M. McGivern, Esq. GRAYBILL & HAZLEWOOD, LLC 218 N Mosley St. Wichita, KS 67202 Telephone: (316) 266-4058 Facsimile: (316) 462-5566 E-mail: don@graybillhazlewood.com sean@graybillhazlewood.com BAMIA 2: Johnson Wage-and-Hour Suit Removed to E.D. California -------------------------------------------------------------- The case styled PARIS JOHNSON, individually and on behalf of all others similarly situated v. BAMIA 2 LLC; REEF GLOBAL INC.; REEF TECHNOLOGIES, INC.; and DOES 1 through 50, inclusive, Case No. 34-2022-0315184, was removed from the Superior Court of the State of California for the County of Sacramento to the U.S. District Court for the Eastern District of California on March 25, 2022. The Clerk of Court for the Eastern District of California assigned Case No. 2:22-cv-00548-KJM-AC to the proceeding. The case arises from the Defendants' alleged violations of the California Labor Code and the California's Business and Professions Code including failure to pay all minimum wages, failure to pay all overtime wages, meal period violations, rest period violations, wage statement violations, waiting time penalties, failure to reimburse necessary business expenses, and unfair competition. Bamia 2 LLC is a limited liability company with its principal place of business located in Miami, Florida. Reef Global Inc. is a provider of parking lot facility management services based in Miami, Florida. Reef Technologies, Inc. is a parking lot facility management services company based in Miami, Florida. [BN] The Defendant is represented by: Mia Farber, Esq. Michael R. Minguet, Esq. 725 South Figueroa Street, Suite 2500 Los Angeles, CA 90017-5408 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 E-mail: Mia.Farber@Jacksonlewis.com Michael.Minguet@Jacksonlewis.com BANK OF AMERICA: Second Sched Order Entered in Philadelphia Suit ---------------------------------------------------------------- In the class action lawsuit captioned as The City of Philadelphia v. Bank of America Corporation, et al., Case No. 1:19-cv-01608-JMF (S.D.N.Y.), the Hon. Judge Jesse M. Furman entered a second civil case management plan and scheduling order as follows: -- Any motion to amend or to join Aug. 23, 2021 additional parties shall be filed no later than: -- All fact discovery shall be June 30, 2022 completed no later than: Bank of America Corporation is a global leader in wealth management, corporate and investment banking and trading, serving various clients worldwide. A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3uzKdfG at no extra charge.[CC] BAYER AG: Investors Balk With Roundup & Monsanto Class Action ------------------------------------------------------------- lawyersandsettlements.com reports that a group of investors has balked at Bayer with a class action lawsuit claiming they were deceived about the link between Roundup and cancer and the Monsanto purchase that includes over 125,000 Roundup lawsuits. Investors Balk at Bayer with Roundup and Monsanto Class Action Lawsuit Investors are demanding about $2.5 billion from Bayer, reported Reuters in January. That amount covered lawsuits from about 320 investors, both institutional and retail, and an increase from approximately 250 investors who initially demanded over $1 billion. According to the German law firm that filed with the district court in Cologne, those institutional investors and a large number of private investors believe Bayer misled them about the economic risks of the $63 billion acquisition and are demanding damages. Bayer said any complaints were unfounded, that it has "complied with the law and with its disclosure requirements . . . . We will therefore defend ourselves." According to Reuters, Bayer said that, "In addition we are convinced that we have carried out adequate due diligence regarding the acquisition of Monsanto." This isn't the first time that investors have balked at Bayer's Monsanto purchase. Investor Rebecca Haussmann in early 2020 accused Bayer executives of going forward with the purchase of Monsanto in the summer of 2018, despite obvious warning signs of looming legal problems and the gigantic Roundup liability exposure it would carry. Haussmann's lawsuit said the purchase was "disastrous" and cost the company more in legal woes than it was worth given the liability costs associated with Roundup lawsuits (over 50,000 according to Bayer's count in February 2020) that were filed by former users of the toxic weedkiller who developed non-Hodgkins lymphoma, as well as other claims. Bayer now faces over 125,000 Roundup lawsuits alleging Monsanto failed to warn of the risks associated with exposure to the glyphosate-based weedkiller, which was identified as a probable human carcinogen in 2015. Bayer had agreed to settle 98,000 of those complaints but it stalled all settlement negotiations while pursuing an appeal to the U.S. Supreme Court. Meanwhile, the company has asked -for the second time this year -- the U.S. Supreme Court to review another case claiming that Roundup causes cancer. This time it is appealing a California decision that awarded almost $87 million (a jury initially awarded over $2 billion) to Alberta and Alva Pilliod who were diagnosed with non-Hodgkins lymphoma after spraying the weedkiller for more than three decades. Bayer still argues that Roundup is safe and the lawsuits should be dismissed because federal regulators also consider the weedkiller safe. However, it plans to replace glyphosate with other active ingredients in weedkillers for U.S. residential use. Farmers will still be sold the original recipe because they "rely on it heavily and have a negligible role in the litigation," according to Bayer. While Bayer maintains that the investor lawsuits are unfounded, it has also faced other lawsuits over its Monsanto acquisition. [GN] BEASLEY LAW: Faces Class Action Over Alleged Ponzi Scheme --------------------------------------------------------- Corrado Rizzi reports that a proposed class action aims to recover investments poured into a reported $300 million Ponzi scheme allegedly orchestrated in part by the Nevada-based Beasley Law Group PC and its namesake, who reportedly admitted to the scheme during a four-hour armed standoff with the FBI earlier this month. According to the 26-page lawsuit, defendant Michael W. Beasley's trust account with Wells Fargo, who's also named as a defendant, served as the entry point to the scam, which the case says was orchestrated by the Beasley firm, Jeffrey Judd and his entities, J&J Consulting Services Inc. and J&J Consulting LLC. The suit says that the entities marketed and sold interests in purported personal injury settlements while promising investors 10- to 20-percent returns to be paid every couple of months. Instead of investing the funds as represented, the conspirators "used the money in a classic Ponzi-like fashion, while drawing significant profits," the complaint states. "Once the funds entered the firm's trust account, the J&J Conspirators misused, diverted, and misappropriated the funds, as the purported settlements appear to have been entirely fabricated," the case reads. The Wall Street Journal reported on March 23 that three FBI agents rang the doorbell of Beasley's Las Vegas home on March 3 to question him about a "high-return, zero-risk investment plan" his law firm helped run. According to the WSJ, Beasley came to the door standing sideways, and when he turned to face the agents, he was holding a gun to his head. He then swung toward the agents and was shot twice before retreating into his house, a federal prosecutor relayed during a court hearing in early March, per the WSJ. Beasley was eventually brought out of his house alive by the FBI. From the WSJ report: "Bleeding from gunshot wounds in his chest and shoulder, he confessed: The investments were a Ponzi scheme, according to the prosecutor. Check his bank records, Mr. Beasley said, and it will all be clear." The lawsuit argues that Wells Fargo, as a regulated bank, had "heightened duties" as far as knowing its customers, in particular law firms in possession of trust accounts for the benefit of others. The suit alleges Wells Fargo "undoubtedly noticed and flagged" the massive amounts of money in incoming investments and then the diversion of those funds into the accounts of "conspirators, brokers, and investors," most of whom, the case says, had Wells Fargo accounts for this specific purpose. "Wells Fargo therefore knew that these investments into and out of a solo practitioner's trust account amounted to fraud and breaches of the conspirators' duties to the investors," the lawsuit alleges. "Despite this knowledge, Wells Fargo did nothing except continue to facilitate the circular transfers and diversions of funds." The lawsuit looks to represent all persons who invested in J&J Purchasing or J&J Consulting's insurance settlement agreements through the Beasley Law Group IOLTA account and suffered damages. [GN] BECTON DICKINSON: 7th Cir. Affirms Dismissal of Marion Class Suit ----------------------------------------------------------------- In the case, MARION DIAGNOSTIC CENTER, LLC and MARION HEALTHCARE, LLC, Plaintiffs-Appellants v. BECTON DICKINSON & CO., CARDINAL HEALTH, INC., and McKESSON MEDICAL-SURGICAL, INC., Defendants-Appellees, Case No. 21-1513 (7th Cir.), the U.S. Court of Appeals for the Seventh Circuit affirmed the district court's order dismissing the Second Amended Complaint for failure to state a claim. I. Introduction A putative class of medical providers brought the suit alleging a conspiracy to drive up the prices of conventional syringes, safety syringes, and safety IV catheters. The Providers' First Amended Complaint ("FAC") alleged a hub-and-spokes conspiracy between manufacturer Becton, Dickinson & Co. ("BD"), group purchasing organizations, and four distributors of the Products in violation of the Sherman Act, 15 U.S.C. Section 1. The district court dismissed the FAC for failure to state a claim. When the Seventh Circuit first considered the case on appeal, it agreed: The Providers' failure to allege that the distributors coordinated with each other in furtherance of the conspiracy doomed their claims on the merits, citing Marion Healthcare, LLC v. Becton Dickinson & Co. (Marion I), 952 F.3d 832, 842-43 (7th Cir. 2020). Nonetheless, it vacated and remanded so the Providers could amend their complaint one more time. In their SAC, the Providers abandoned their horizontal conspiracy allegations and now allege two vertical conspiracies: (1) between BD and McKesson Medical-Surgical, Inc., and (2) between BD and Cardinal Health, Inc. The district court once again dismissed the SAC for failure to state a claim. It also concluded that because the named Plaintiffs do not purchase the Products directly from Cardinal, they lack "antitrust standing" to sue Cardinal under Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). II. Background Marion Diagnostic Center, LLC and Marion Healthcare, LLC are small healthcare providers in Marion, Illinois. Like many such providers, they join group purchasing organizations ("GPOs"), which negotiate contracts on behalf of their members for medical products. These GPO-manufacturer contracts are known as "Net Dealer Contracts." BD is the leading national manufacturer of the three products at issue: BD controls 60% of the market for conventional syringes, 60% of the market for safety syringes, and 55% of the market for safety IV catheters. BD charges significantly higher prices than its competitors: 11% more for conventional syringes, 36% more for safety syringes, and 37% more for safety IV catheters. Cardinal and McKesson are two of the largest distributors of the Products. The distribution market entails warehousing, processing orders, marketing, and tech support. Notably, the Providers have not alleged that either Cardinal or McKesson has market power in the distribution market, which includes at least four major players. The Providers also concede that they do not purchase BD products from Cardinal. They allege only that they have purchased the Products from McKesson. Complicating matters further, the Distributors make "Dealer Notification Agreements" with BD, in which the Distributors agree to distribute BD's Products in accordance with the Net Dealer Contracts. The Plaintiffs allege that BD is engaged in two vertical conspiracies to restrain trade in the relevant product markets. Specifically, they allege that BD has a quid pro quo with Cardinal and McKesson. The Providers allege that BD has engaged in other anticompetitive acts in furtherance of the conspiracies. Namely, BD has made false claims about its own products while disparaging the products of its rival, Retractable, and BD has been found liable for infringing Retractable's patents. Additionally, BD has entered exclusionary contracts with large healthcare providers (outside the GPO system) that bundle the three products at issue with other BD products. These allegations appeared in the FAC, which the Seventh Circuit previously held failed to state a claim. According to the Providers, all of this conduct amounts to antitrust injury by allowing BD to inflate the prices of the Products above competitive levels. The SAC further alleges that the conspiracies harm innovation in the relevant product markets by deterring potential entrants, thereby reducing product quality and safety. The district court concluded that the following allegations were insufficient to show conscious commitment: BD's dominant market share facilitates collusion and there are high barriers to entry; the Distributors' actions are "contrary to their self-interest" because they should naturally prefer upstream competition; the Distributors' contracts with BD include agreements to exclude BD's rivals; the Distributors have the motive to conspire because of BD's dominance in the market; and the Distributors frequently communicate with BD "beyond what is necessary to merely buy and sell products." Because the district court concluded that the SAC failed to state a claim, it did not address the Defendants' related argument that the Providers failed to allege Cardinal or McKesson had market power in the distribution market. The Providers timely appealed. III. Discussion A. Standing All agree that the Providers have standing to sue McKesson and BD. The Providers contend that they also have standing to sue Cardinal, even though they did not purchase the Products from Cardinal. The Seventh Circuit holds that the Article III and Illinois Brick inquiries lead to the same outcome in the case: The Providers are not the proper parties to bring suit against Cardinal. But the inquiries remain distinct and serve different purposes. The Providers cannot sue Cardinal under Article III because their injury is not fairly traceable to Cardinal's conduct. They also cannot sue Cardinal under Illinois Brick, as interpreted by this court in Paper Systems, because they do not purchase the Products from either member of the BD-Cardinal conspiracy. B. Failure to State a Claim Because the Providers lack standing to sue Cardinal, the Seventh Circuit's analysis of the merits focuses on the remaining alleged vertical conspiracy between BD and McKesson. It holds that the district court properly dismissed the SAC for failure to state a claim. The Seventh Circuit finds that (i) the Providers' allegations regarding the Distributors' frequent communications with BD are not necessarily indicative of collusion; (ii) the Providers have not included any allegations showing that McKesson is unique in its attempts to encourage sales of BD products, or that the benefits McKesson receives from selling BD products differ from the benefits any other distributor would receive; and (iii) the Providers have not convincingly explained why they cannot choose distributors who are not alleged to be conspiring with BD. Because the Providers have not plausibly alleged a vertical conspiracy between BD and McKesson, the Seventh Circuit affirms the district court's decision on that basis. The district court declined to reach the Distributors' alternative basis for dismissal -- that the Providers failed to allege Cardinal or McKesson has market power in the distribution market. In light of its conclusion that the SAC fails to state a claim, the Seventh Circuit declines to address this argument in the first instance. IV. Conclusion For the foregoing reasons, the district court's grant of the motion to dismiss is affirmed. A full-text copy of the Court's March 18, 2022 Order is available at https://tinyurl.com/mr48bm9t from Leagle.com. BELL FLAVORS: Guzman BIPA Suit Removed to N.D. Illinois ------------------------------------------------------- The case styled JEROHAM GUZMAN, individually and on behalf of all others similarly situated v. BELL FLAVORS AND FRAGRANCES, INC., Case No. 2021-CH-06316, was removed from Circuit Court of Cook County, Illinois, County Department, Chancery Division, to the U.S. District Court for the Northern District of Illinois on March 25, 2022. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:22-cv-01590 to the proceeding. The case arises from the Defendant's alleged violation of the Biometric Information Privacy Act by causing the biometric data from its employees' fingerprints to be recorded, collected, and stored. Bell Flavors and Fragrances, Inc. is an American multinational manufacturer of flavors, fragrances, botanicals and ingredients, headquartered in Northbrook, Illinois. [BN] The Defendant is represented by: Charles E. Reis, IV, Esq. LITTLER MENDELSON, P.C. 600 Washington Ave., Ste. 900 St. Louis, MO 63101 Telephone: (314) 659-2000 E-mail: creis@littler.com BOOHOO.COM USA: Stipulation on Deposition Scheduling OK'd in Khan ----------------------------------------------------------------- In the class action lawsuit captioned as FARID KHAN, an individual, on behalf of himself and all others similarly situated, v. BOOHOO.COM USA, INC., a Delaware corporation, BOOHOO.COM UK LIMITED, a United Kingdom private limited company, BOOHOO GROUP PLC, a Jersey public limited company, and DOES 1-10, inclusive, Case No. 2:20-cv-03332-GW-JEM (C.D. Cal.), the Court entered an order granting stipulation regarding deposition scheduling as follows: 1. The deadline for filing a motion April 11, 2022 for preliminary approval of class settlement shall be set for: 2. In the event the Parties are unable April 11, 2022 to agree on a final settlement agreement, the Parties shall meet and confer and file by: 3. The Court sets a status conference April 18, 2022 for: 4. The parties shall file a joint April 14, 2022 status report by: A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3qOACRg at no extra charge.[CC] CELSIUS HOLDINGS: Robbins Geller Reminds of May 16 Deadline ----------------------------------------------------------- The law firm of Robbins Geller Rudman & Dowd LLP announces that purchasers or acquirers of Celsius Holdings, Inc. (NASDAQ: CELH) securities between August 12, 2021 and March 1, 2022, both dates inclusive (the "Class Period") have until May 16, 2022 to seek appointment as lead plaintiff in McCallion v. Celsius Holdings, Inc., No. 22-cv-80418 (S.D. Fla.). Commenced on March 16, 2022, the Celsius class action lawsuit charges Celsius and certain of its top executive officers with violations of the Securities Exchange Act of 1934. If you suffered significant losses and wish to serve as lead plaintiff of the Celsius class action lawsuit, please provide your information by clicking here. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the Celsius class action lawsuit must be filed with the court no later than May 16, 2022. CASE ALLEGATIONS: Celsius develops, markets, and sells functional drinks and liquid supplements. Celsius' core offerings include pre- and post-workout functional energy drinks and protein bars. The Celsius class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) Celsius had improperly recorded expenses for non-cash share-based compensation for the second and third quarters of 2021; (ii) as a result, Celsius' financial statements for those periods would be restated, including to report a net loss for the third quarter of 2021; (iii) there was a material weakness in Celsius' internal controls over financial reporting; and (iv) consequently, defendants' positive statements about Celsius' business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On March 1, 2022, Celsius disclosed that it could not timely file its 2021 annual report due to "staffing limitations, unanticipated delays and identified material errors in previous filings." Specifically, Celsius "determined that the calculation and expense of non-cash share-based compensation, related to grants of stock options and restricted stock units awarded to certain former employees and retired directors were materially understated for the three and six month periods ended June 30, 2021 and three and nine month periods ended September 30, 2021." As a result, management concluded that there was a material weakness in Celsius' internal controls over financial reporting. On this news, Celsius' stock price fell more than 8%, damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Celsius securities during the Class Period to seek appointment as lead plaintiff in the Celsius class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class action lawsuit. An investor's ability to share in any potential future recovery of the class action lawsuit is not dependent upon serving as lead plaintiff. ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: Robbins Geller Rudman & Dowd LLP is one of the world's leading complex class action firms representing plaintiffs in securities fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class Action Services Top 50 Report for recovering nearly $2 billion for investors last year alone - more than triple the amount recovered by any other plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller's attorneys have obtained many of the largest securities class action recoveries in history, including the largest securities class action recovery ever - $7.2 billion - in In re Enron Corp. Sec. Litig. Please visit http://www.rgrdlaw.comfor more information. [GN] CG CONSULTING: Ousley Seeks to Certify Class Action --------------------------------------------------- In the class action lawsuit captioned as Alicia Ousley, Michael Starkey, and Josh Votaw, On behalf of themselves and those similarly situated, v. CG Consulting, LLC d/b/a Scores Columbus, et al., Case No. 2:19-cv-01744-SDM-KAJ (S.D. Ohio), the Plaintiffs ask the Court to enter an order: 1. certifying the action as a class action and designating the Named Plaintiffs as the representatives of the following class: "All non-owner, non-employer current and former hourly, employees to whom a tip credit was applied and who worked for the CG Defendants in Ohio during any workweek from May 2, 2016 to the present;" and 2. appointing Daniel I. Bryant of Bryant Legal, LLC and Laren E. Knoll of The Knoll Law Firm, LLC as Class Counsel pursuant to Rule 23(g); and 3. permitting them to send notice of the lawsuit to putative class members pursuant to Rule 23(c)(2). CG Consulting provides programme support for clients operating across all sectors. A copy of the Plaintiffs' motion to certify class dated March 16, 2022 is available from PacerMonitor.com at https://bit.ly/38rRBCr at no extra charge.[CC] The Plaintiffs are represented by: Laren E. Knoll, Esq. THE KNOLL LAW FIRM, LLC 7240 Muirfield Drive, Suite 120 Dublin, OH 43017 Telephone: (614) 372-8890 Facsimile: (614) 452-4850 E-mail: lknoll@knolllaw.com - and - Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Telephone: (614) 704-0546 Facsimile: (614) 573-9826 E-mail: dbryant@bryantlegalllc.com CHARLEYS PHILLY: Machuca Wage-and-Hour Suit Goes to E.D. California ------------------------------------------------------------------- The case styled ANAHY MACHUCA, individually and on behalf of all others similarly situated v. CHARLEYS PHILLY STEAKS; MODESTO VENTURES, LLC; SAMMY RAMIREZ; and DOES 1 through 100, inclusive, Case No. FCS057713, was removed from the Superior Court of the State of California for the County of Solano to the U.S. District Court for the Eastern District of California on March 25, 2022. The Clerk of Court for the Eastern District of California assigned Case No. 1:22-at-00204 to the proceeding. The case arises from the Defendants' alleged violations of the California Labor Code and the California's Business and Professions Code including failure to pay overtime wages, failure to pay minimum wages, failure to provide meal periods, failure to provide rest periods, failure to pay all wages due upon termination, failure to provide accurate wage statements, failure to timely pay wages during employment, unreimbursed business expenses, and unfair competition. Charleys Philly Steaks is an American restaurant chain of Philly cheesesteak stores headquartered in Columbus, Ohio. Modesto Ventures, LLC is a limited liability company with its corporate headquarters in Columbus, Ohio. [BN] The Defendants are represented by: Rachael Lavi, Esq. Jennifer A. Goldberg, Esq. LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067-3107 Telephone: (310) 553-0308 Facsimile: (310) 553-5583 E-mail: rlavi@littler.com jagoldberg@littler.com CIG LOGISTICS: Mobley Seeks Proper Wages for Well Site Operators ---------------------------------------------------------------- RONALD MOBLEY, individually and on behalf of similarly situated individuals v. CIG Logistics LLC, and Continental Intermodal Group Trucking LLC, Case No. 1:22-cv-00226 (D.N.M., March 28, 2022), seeks unpaid wages, including overtime wages, and all other available relief under the New Mexico Minimum Wage Act. According to the complaint, WSO spent most of the day before and after their shifts driving hundreds of miles to and from the job sites. This travel cut across WSO's normal working hours during both regular working days and non-working days. The identity of all WSO is unknown at this time but is known to Defendant and is contained in the Defendant's records. The Defendant did not count time spent traveling as hours worked for purposes of determining overtime eligibility. Consequently, Defendant failed to pay proper wages, including overtime wages to Plaintiff and other similarly situated individuals. The Defendant willfully deprived WSO of proper wages, including overtime wages, the lawsuit says. The Defendants employed Plaintiff as an hourly non-exempt Well Site Operator (WSO). The Plaintiff and other similarly situated employees regularly worked more than 40 hours per workweek. WSO performed the manual tasks associated with Defendants' onsite sand services. CIG provided fracking sand and onsite sand service to fracking companies in multiple states. Defendants employed Plaintiff and other WSO to work for them in the States of Texas, New Mexico, and North Dakota.[BN] The Plaintiff is represented by: Trang Q. Tran, Esq. TRAN LAW FIRM 2537 South Gessner Road, Suite 104 Houston, TX 77063 Telephone: (713) 223-8855 E-mail: trang@tranlf.com service@tranlf.com CITIZENS BANK: Scheduling Order Entered in Chirchir Class Suit -------------------------------------------------------------- In the class action lawsuit captioned as DR. HABIBA CHIRCHIR, on behalf of herself and a similarly situated class of persons, v. CITIZENS BANK, N.A. d/b/a Citizens One Home Loans, Case No. 3:20-cv-00416 (S.D.w.Va.), the Hon. Judge Robert C. Chambers entered a scheduling order as follows: 1. The parties shall be allowed until May 11, 2022, to join additional parties and to amend the pleadings exclusive of parties who are identified through discovery or otherwise become necessary. 2. The parties shall complete all discovery requests by October 12, 2022, and all depositions by November 25, 2022. 3. The party bearing the burden of proof on an issue shall make the disclosures of information required by Fed. R. Civ. P. 26(a)(2)(A) and (B) for that issue to all other parties or their counsel no later than August 5, 2022. 4. The last day for Plaintiff to file a motion for class certification shall be December 23, 2022. Any response shall be filed within 28 days of the filing of the motion, with replies due within 14 days of the filing of the response. 5. No later than December 23 2022, counsel and any unrepresented parties shall meet to conduct settlement negotiations. Citizens Bank provides commercial banking services. A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/36Ck48b at no extra charge.[CC] COLLECTION BUREAU: Court Administratively Closes Rivera Case ------------------------------------------------------------ In the class action lawsuit captioned as STEVEN RIVERA, v. COLLECTION BUREAU HUDSON VALLEY, INC., Case No. 9:21-cv-80711-AMC (S.D. Fla.), the Hon. Judge Aileen M. Cannon entered an order that: 1. The above-styled action is administratively closed without prejudice to the parties to file a stipulation for dismissal on or before April 14, 2022. 2. If the parties fail to complete the expected settlement, either party may request the Court to reopen the case. 3. The Clerk shall close this case for administrative purposes only. Any scheduled hearings are canceled, any pending motions are denied as moot, and all deadlines are terminated. Collection Bureau of the Hudson Valley Inc. is a collection agency located in Newburgh, New York. A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3DwxE8N at no extra charge.[CC] COOK COUNTY, IL: Bid to Certify Class in Evans v. CCDOC Denied -------------------------------------------------------------- In the case, DAVID EVANS III, RASHID MUHAMMAD, MONTA SERVANT, FELISHA PARNELL, DWIGHT ANDERSON, JOSEPH TINOCO, and FRANK DONIS, Plaintiffs v. THOMAS J. DART, Sheriff of Cook County, COOK COUNTY OF COOK, a unit of local government as joint employer for FLSA purposes and as indemnitor, Defendants, Case No. 20 C 2453 (N.D. Ill.), Judge Rebecca R. Pallmeyer of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied without prejudice the Plaintiffs' motion for conditional class certification and court-authorized notice under the Fair Labor Standards Act. I. Background Plaintiffs David Evans III, Rashid Muhammad, Monta Servant, Felisha Parnell, Dwight Anderson, Joseph Tinoco, and Frank Donis worked as Correctional Officers for Defendants Cook County, Illinois, and Thomas J. Dart, the Sheriff of Cook County. The Plaintiffs allege that Defendants violated the FLSA, 29 U.S.C. Section 201, et seq., by failing to pay them and other similarly situated employees for overtime work. The Cook County Department of Corrections ("CCDOC") has been at the epicenter of the nation's fight against the spread of COVID-19. In April 2020, the jail was "the nation's largest-known source of coronavirus infections." The CCDOC took swift action, and by July 2020, the Centers for Disease Control ("CDC") found that the jail's aggressive intervention strategies had mitigated transmission and caused a decline in cases. The case concerns allegations that those intervention strategies required officers at the CCDOC to perform unpaid labor in violation of the FLSA. The Plaintiffs filed the putative collective action on April 21, 2020. In Counts 1 and 2 of their Second Amended Complaint, the Plaintiffs allege that the Defendants failed to adequately compensate them, and other employees similarly situated, in violation of the FLSA. They contend that when the COVID-19 pandemic began, Sheriff Dart required them to "engage in decontamination/sanitation activities after the end of their shifts within the CCDOC, including washing and sanitizing their uniforms, sanitizing their persons, sanitizing and maintaining personal protective equipment ("PPE"), and showering." They allege these activities took "approximately 20 to 30 minutes at the beginning and/or end of each shift" and that "at no time have the Defendants paid the Plaintiffs or similarly situated officers for the aforementioned activities." The Plaintiffs also allege these activities were undertaken in addition to full workdays, often "up to 16 hours straight inside the CCDOC." The Plaintiffs propose the following class definition: All persons who worked, for any portion of time, as a Cook County Correctional Officer (CO1) or Investigator II (CS2) at the Cook County Department of Corrections between Jan. 27, 2020 and June 11, 2021 and who engaged in washing, sanitizing, or decontaminating activities as to their person, uniform, duty belt, personal protective equipment, or vehicles used in commuting to and from work, and who were not paid for time spent contiguously before or contiguously after their shifts engaging in such activities." The Plaintiffs allege the class may include up to 3000 employees, as that is roughly the number of Correctional Officers and Investigator II's employed by CCDOC during the relevant time period. In support of their motion for conditional certification and court-authorized notice, Plaintiffs have submitted declarations from named Plaintiffs Anderson, Donis, Evans, Parnell, Servant, and Tinoco, each of whom worked as a Correctional Officer at the CCDOC during the time period in the class definition. All the named Plaintiffs and declarants worked as Correctional Officers; none worked as an "Investigator II," the other job title included in the proposed class definition. The Plaintiffs' motion for conditional certification states that "Investigators work in the Electronic Monitoring Unit at the CCDOC and are subject to the same overarching General Orders and policies of the Sheriff as the Correctional Officers." The Plaintiffs allege further that "for purposes of this suit Correctional Officers and Investigator II's are similarly-situated." Declarants Servant and Tinoco aver that they "personally observed" Investigator II's working in the presence of detainees, and they also declare that Investigator II's are subject to the same decontamination protocols and expectations as Correctional Officers. In response to this motion, the Defendants have submitted three declarations relevant to class certification, as well as numerous exhibits. The first such declaration is from Brad Curry, who was, during the relevant period, Chief of Staff for the Cook County Sherriff's Office ("CCSO"). In that capacity, Curry oversaw "all CCSO efforts to address, combat and limit the spread" of COVID-19 within CCDOC. The Defendants' second declaration is from Hugh Walsh, the CCSO First Assistant Executive Director, who manages and supervises the operations of CCDOC. Walsh asserts that "none of these directives require that Correctional Officers engage in sanitization activities while off duty." The Defendants' third declaration is from Matthew Burke, the Executive Director of Human Resources. Burke declares that his responsibilities include, among other things, "keeping abreast of continuously developing guidance issued by public health agencies." II. Discussion The Plaintiffs argue that they have made the necessary modest factual showing that they and other potential plaintiffs are similarly situated, because they all hold one of two job titles, they all are subject to the same general orders, they all work on or around the CCDOC compound, and they "all were subjected to the work requirement of engaging in heightened COVID-19 decontamination activities alleged in the complaint." The Defendants counter that the court should deny Plaintiffs' motion because (1) the Plaintiffs have not identified a common policy that violates the FLSA, (2) the case will involve individualized, fact-specific inquiries, and (3) the Plaintiffs have not established that Investigator II's are similarly situated to Correctional Officers. First, as the Plaintiffs have not shown that they are "victims of a common policy or plan that violated the law," Judge Pallmeyer will not certify the class as currently proposed. The Plaintiffs' motion is therefore denied. Next, she holds that the Plaintiffs have made a modest factual showing that they are similarly situated to other potential plaintiffs. If they could show they were subject to an unlawful overtime work policy, their claims may be less fact-intensive than the inquiry into the severity and pervasiveness of a particular employee's experience of sexual harassment. Lastly, Judge Pallmeyer cannot conclude that Investigator II's are similarly situated to the named plaintiffs. The Plaintiffs may be correct that they need not necessarily submit a declaration from an Investigator II. But if they can otherwise make a case for conditional certification, the Court assumes it will be a relatively simple matter for the Plaintiffs to provide a declaration from at least one employee holding the position of Investigator II. III. Conclusion For the foregoing reasons, Judge Pallmeyer denied without prejudice the Plaintiffs' motion for conditional class certification and court-authorized notice. A full-text copy of the Court's March 18, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/3exyavwn from Leagle.com. CRITICAL TELEPHONE: CMP & Scheduling Order Entered in Tavarez ------------------------------------------------------------- In the class action lawsuit captioned as VICTORIANO TAVAREZ, Individually, and On Behalf of All Others Similarly Situated, v. CRITICAL TELEPHONE APPLICATIONS, INC., Case No. 1:21-cv-09805-AT (S.D.N.Y.), the Hon. Judge Analisa Torres entered a civil case management plan and scheduling order as follows: -- All fact discovery shall be July 8, 2022 completed no later than: -- Initial requests for production March 8, 2022 of documents to be served by: -- Depositions to be completed by: July 8, 2022 -- All expert discovery shall be Aug. 22, 2022 completed no later than: A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3IOkhBX at no extra charge.[CC] DELAWARE COUNTY, PA: Wins Summary Judgment v. Burford ------------------------------------------------------ In the class action lawsuit captioned as TONY BURFORD v. DELAWARE COUNTY, PENNSYLVANIA, ET AL., Case No. 2:19-cv-00577-JMY (E.D. Pa.), the Hon. Judge John Milton Younge entered an order granting the Defendants' motion for summary judgment as to the Plaintiff's federal law claims and declines jurisdiction over the Plaintiff's state law conversion claim. The Plaintiff Tony Burford was arrested on January 15, 2016. An information was filed against him in the Delaware County Court of Common Pleas charging Plaintiff with one or more felonies. Bail was initially set at $100,000 and then subsequently reduced to $60,000 for which Plaintiff posted 10% at $6,000. By March 1, 2017 all charges against Plaintiff were either withdrawn, dismissed or he was found not guilty. Despite not being convicted of any crime, the Plaintiff was assessed $3,533.05 in costs which consisted of $2,400 for a "Bail Handling Percent (Delaware)" along with various charges in the amount of $1,133.05. Thus, of the $6,000 Plaintiff posted bail for, he was offered less than 50% back despite not being convicted of any offense. A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3tXBIfb at no extra charge.[CC] DOCUSIGN INC: Faces Weston Securities Suit in California Court --------------------------------------------------------------- DocuSign disclosed in its Form 10-K Report for the fiscal year ended January 31, 2022, filed with the Securities and Exchange Commission on March 25, 2022, that a class action was filed against the company and its officers alleging claims under the Securities Exchange Act. On February 8, 2022, a putative securities class action was filed in the U.S. District Court for the Northern District of California, captioned "Weston v. DocuSign, Inc., et al.," Case No. 3:22-cv-00824, naming DocuSign and certain of its current and former officers as defendants. The complaint purports to allege claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, based on allegedly false and misleading statements about the company's business and prospects during the course of the COVID-19 pandemic. The suit is purportedly brought on behalf of purchasers of the company's securities between June 4, 2020 and December 2, 2021. DocuSign provides electronic signature products based in San Francisco, California. DOORDASH INC: Yuquilema Wage-and-Hour Suit Removed to S.D.N.Y. -------------------------------------------------------------- The case styled JOSE REINALDO YUQUILEMA MULLO and SILVERIO FLORES, individually and on behalf of all others similarly situated v. DOORDASH, INC., ERIN ANDEREGG, and TONY XU, Case No. 650686/2022, was removed from the Supreme Court of the State of New York, New York County, to the U.S. District Court for the Southern District of New York on March 25, 2022. The Clerk of Court for the Southern District of New York assigned Case No. 1:22-cv-02430 to the proceeding. The case arises from the Defendants' alleged violations of the Fair Labor Standards Act including unpaid minimum and overtime wages, unpaid spread of hours premium, unpaid uniform maintenance pay, and unreimbursed out-of-pocket expenses. DoorDash, Inc. is an online food ordering and food delivery company, with its principal place of business located at 303 2nd St., Suite 800 San Francisco, California. [BN] The Defendants are represented by: Zack G. Sharpe, IV, Esq. LITTLER MENDELSON, P.C. 900 Third Avenue New York, NY 10022 Telephone: (212) 583-9600 E-mail: zsharpe@littler.com ENCLARITY INC: Fulton Seeks to File Opposition Reply Under Seal ---------------------------------------------------------------- In the class action lawsuit captioned as MATTHEW N. FULTON, DDS, P.C., individually and on behalf of all others similarly situated, v. ENCLARITY, INC., LEXISNEXIS RISK SOLUTIONS INC., LEXISNEXIS RISK SOLUTIONS GA INC., LEXISNEXIS RISK SOLUTIONS FL INC., and JOHN DOES 1-12, Case No. 2:16-cv-13777-DPH-RSW (E.D. Mich.), the Plaintiff moves the Court to enter an order permitting him to file under seal unredacted copies of his Reply in Support of class certification and response in opposition to the Defendants. Exclude Certain Opinions of Plaintiff's Expert Witness Lee Howard and certain Exhibits thereto. The case asserts claims under the Telephone Consumer Protection Act (TCPA) relating to faxes sent by Defendants. Discovery in the case has included inquiry into millions of faxes Defendants sent to healthcare providers, identification of those providers, and Defendants' business practices. Pursuant to the Stipulated Protective Order entered in this action, the Defendants have designated a substantial number of documents they produced, as well as testimony of their current or former employees, as "Confidential" and/or "Confidential – Attorneys' Eyes Only." Pursuant to the Stipulated Protective Order entered in this action. The Plaintiff has also designated some information as "Confidential" and/or "Attorneys' Eyes Only" pursuant to the Stipulated Protective Order. However, Defendants are the only party asserting confidentiality over the information submitted for filing under seal in connection with the present motion. Enclarity provides healthcare information solutions. A copy of the Plaintiff's motion dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3726KJV at no extra charge.[CC] The Plaintiff is represented by: Phillip A. Bock, Esq. Robert M. Hatch, Esq. Jonathan B. Piper, Esq. Molly E. Stemper, Esq. BOCK HATCH & OPPENHEIM, LLC 203 N. La Salle St. Suite 2100 Chicago, IL 60601 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: service@classlawyers.com ENOVIX CORP: Faces Prak Suit in California ------------------------------------------ Enovix Corporation disclosed in its Form 10-K Report for the fiscal year ended December 31, 2021, filed with the Securities and Exchange Commission on March 25, 2022, that in January 21, 2022, two former machine operator employees filed a putative wage and hour class action lawsuit against Enovix and co-defendant Legendary Staffing, Inc. in the Superior Court of California, County of Alameda. The case is captioned "Sopheak Prak and Ricardo Pimentel v. Enovix Corporation and Legendary Staffing, Inc.," Case No. 22CV005846. The Prak complaint alleges, among other things, on a putative class-wide basis, that the defendants failed to pay all overtime wages and committed meal period, rest period and wage statement violations under the California Labor Code and applicable Wage Orders. The plaintiffs are seeking unpaid wages, statutory penalties and interest, and reasonable costs and attorney fees. Enovix designs, develops and samples advanced lithium-ion batteries. FIRST TRANSIT: Fulton Wage-and-Hour Suit Goes to C.D. California ---------------------------------------------------------------- The case styled JAMIE FULTON, individually and on behalf of all others similarly situated v. FIRST TRANSIT SERVICES, INC.; FIRST TRANSIT, INC.; FIRSTGROUP AMERICA, INC.; and DOES 1 through 100, inclusive, Case No. CIVSB2135122, was removed from the Superior Court of the State of California, County of San Bernardino, to the U.S. District Court for the Central District of California on March 28, 2022. The Clerk of Court for the Central District of California assigned Case No. 5:22-cv-00537 to the proceeding. The case arises from the Defendants' alleged violations of the California Labor Code and the California's Business and Professions Code including unpaid overtime, unpaid meal period premiums, unpaid rest period premiums, unpaid minimum wages, final wages not timely paid, wages not timely paid during employment, non-complaint wage statements, failure to keep requisite payroll records, unreimbursed business expenses, and unfair competition. First Transit Services, Inc. is a transportation services company, with its corporate headquarters located in Cincinnati, Ohio. First Transit, Inc. is a transportation services company, with its corporate headquarters located in Cincinnati, Ohio. FirstGroup America, Inc. is a provider of transportation services, with its corporate headquarters located in Cincinnati, Ohio. [BN] The Defendants are represented by: David J. Dow, Esq. Carrie A. Stringham, Esq. Kara Adelle Ritter Cole, Esq. LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101-3577 Telephone: (619) 232-0441 Facsimile: (619) 232-4302 E-mail: ddow@littler.com cstringham@littler.com kcole@littler.com FLYWHEEL ENERGY: Seeks Extension to File Class Cert Bid Reply ------------------------------------------------------------- In the class action lawsuit captioned as DARRELL OLIGER AND CAROL OLIGER, CO-TRUSTEES OF THE DARRELL AND CAROL OLIGER REVOCABLE TRUST DATED 19, 2007, Individually and on behalf of all others similarly situated, v. FLYWHEEL ENERGY PRODUCTION, LLC, Case No. 4:20-cv-01146-LPR (E.D. Ark.), the Defendant asks the Court to enter an order extending the time for it to respond to Plaintiffs' Motion for Class Certification, Appointment of Class Representatives, and Appointment of Class Counsel, or in the alternative, to strike the motion or hold in abeyance, and grant it all other just and proper relief to which it may be entitled. On November 17, 2020, the Plaintiffs filed their Third Amended Complaint. On May 6, 2021, the Defendant filed a Motion for Consolidation. On July 30, 2021, the Court entered an Order granting in part and denying in part Defendant's Motion for Consolidation. In its July 30, 2021 Order, the Court stated it "will issue revised scheduling orders in all cases after the 23(g)(3) conference it holds in the Bryant and Oliger cases." On August 5, 2021, and August 13, 2021, the Plaintiffs' Counsel for Darrell Oliger and Carol Oliger, co-Trustees of the Darrell and Carol Oliger Revocable Trust Dated June 19, 2007, Puloma Properties, LLC and LGTD Investments, and Plaintiff's Counsel for Glendon Bryant filed competing Motions for Appointment of Interim Lead Counsel. On August 25, 2021, a Rule 23(g) Conference was held, and the Court "took the matter under advisement." A copy of the Defendant's motion dated March 16, 2022 is available from PacerMonitor.com at https://bit.ly/3K9d9S6 at no extra charge.[CC] The Defendant is represented by: G. Alan Perkins, Esq. M. Christine Dillard, Esq. Samuel S. McLelland, Esq. PPGMR Law, PLLC P.O. Box 3446 Little Rock, AR 72203 Telephone: (501) 603-9000 Facsimile: (501) 603-0556 E-mail: alan@ppgmrlaw.com christine@ppgmrlaw.com sam@ppgmrlaw.com FROM THE HEART: Fails to Pay Overtime Pay, Crooks Suit Alleges -------------------------------------------------------------- ASIA CROOKS, individually and on behalf of all others similarly situated Plaintiff v. FROM THE HEART HOME HEALTH CARE, LLC, Defendant, Case 2:22-cv-10655-PDB-DRG (E.D. Mich., March 28, 2022) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Plaintiff Crooks was employed by the Defendant as a home health aide. FROM THE HEART HOME HEALTH CARE, LLC is a home healthcare and homecare agency. [BN] The Plaintiff is represented by: Jennifer Lossia McManus, Esq. FAGAN MCMANUS, P.C. 25892 Woodward Avenue Royal Oak, MI 48067-0910 Telephone: (248) 542-6300 Facsimile: (248) 542-6301 Email: jmcmanus@faganlawpc.com -and- Alanna Klein Fischer, Esq. Anthony J. Lazzaro, Esq. Lori M. Griffin, Esq. Matthew S. Grimsley, Esq. THE LAZZARO LAW FIRM, LLC The Heritage Bldg., Suite 250 34555 Chagrin Boulevard Moreland Hills, OH 44022-1059 Telephone: (216) 696-5000 Facsimile: (216) 696-7005 Email: alanna@lazzarolawfirm.com anthony@lazzarolawfirm.com lori@lazzarolawfirm.com matthew@lazzarolawfirm.com FUNKO INC: Time for Class Cert Briefing Extended in Ferreira Suit ----------------------------------------------------------------- In the class action lawsuit captioned as GILBERTO FERREIRA, Individually and On Behalf of All Others Similarly Situated, v. FUNKO, INC., et al., Case No. 2:20-cv-02319-VAP-MAA (C.D. Cal.), the Hon. Judge Virginia A. Phillips entered an order extending time for class certification briefing: A. The current class certification briefing schedule set in the Court's Order dated February 1, 2022 is vacated. B. The Plaintiffs shall file a motion for class certification on or before June 13, 2022. C. The Defendants shall file any opposition to Plaintiffs' motion for class certification on or before July 13, 2022. D. The Plaintiffs shall file any reply in support of their motion for class certification on or before August 2, 2022. E. The hearing on Plaintiffs' motion for class certification is set for September 12, 2022. A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3uNkhx4 at no extra charge.[CC] The Attorneys for the Funko Defendants are: Kevin M. McDonough, Esq. Thomas J. Giblin, Esq. Meryn C. N. Grant, Esq. LATHAM & WATKINS LLP 1271 Avenue of the Americas New York, NY 10020 Telephone: (212) 906-1200 Facsimile: (212) 751-4864 E-mail: kevin.mcdonough@lw.com thomas.giblin@lw.com meryn.grant@lw.com GENERAL MILLS: Faces Suit Over Mislabeled Frozen Cheese Pizza Rolls ------------------------------------------------------------------- Totino's frozen cheese pizza rolls are not made with real cheese, a new class action lawsuit alleges. Plaintiff Lakita Smith filed the complaint against General Mills Sales, Inc. Mar. 23 in an Illinois federal court, alleging violations of state and federal consumer laws. She said the company makes and sells frozen cheese pizza rolls under the Totino's brand. The pizza rolls are marketed with words like "Cheese," "Pizza In A Golden Crust" and pictures of the pizza rolls with the visible contents of what appears to be red tomato sauce and white cheese, Smith says. However, she alleges the representations are "false, deceptive and misleading" because the cheese used is almost entirely imitation cheese instead of traditional cheese. "The representations cause consumers to expect the Product contains a non-de minimis amount of ingredients associated with pizza, such as cheese," Smith says. In her lawsuit, Smith turns to multiple dictionary definitions of pizza to make her case. In the Collins Dictionary, for instance, pizza is defined as "dough covered with tomatoes, cheese and other toppings and then baked in an oven." As a result, when customers are marketed "cheese" and "pizza," they expect real cheese, Smith argues. She says the pizza rolls use imitation cheese, which is made by combining vegetable oils, corn starch and casein, instead of milk solids. Smith is looking to represent a class of Illinois residents who bought the product, plus a multi-state Class from Arkansas, Iowa, Utah, Idaho, Alaska and Montana. She's suing for violations of state consumer fraud acts, as well as breach of warranty, fraud and negligent misrepresentation. Smith is seeking certification of the class action, damages, fees, costs and a jury trial. Last year, Kraft was hit with a class action lawsuit alleging its Bagel Bites Mini Bagels With Mozzarella Cheese and Tomato Sauce do not in fact contain mozzarella cheese or tomato despite a third-party verification sticker. he plaintiff is represented by Spencer Sheehan of Sheehan & Associates. The General Mills Pizza Rolls Class Action Lawsuit is Lakita Smith v. General Mills Sales, Case No. 1:22-cv-01529, in the U.S. District Court Northern District of Illinois Eastern Division [GN] GENERAL MOTORS: Class Certification Sought in Takata Airbag Suit ---------------------------------------------------------------- In the class action lawsuit captioned as IN RE: Takata Airbag Products Liability Litigation, Case No. 1:15-md-02599-FAM (S.D. Fla.), the Plaintiffs ask the Court to enter an order certifying the following class for a bellwether trial against Defendant General Motors, LLC (GM): "All persons who, prior to the date on which the Class Vehicle was recalled and after July 10, 2009, bought a Class Vehicle in the state of Florida and (i) still own the Class Vehicle, or (ii) sold the Class Vehicle after the date on which the Class Vehicle was recalled, or (iii) following an accident, whose Class Vehicle was declared a total loss after the date on which the Class Vehicle was recalled;" Excluded from the Class are GM; its parents, subsidiaries, affiliates, officers and directors; any entity in which GM has a controlling interest; all persons who make a timely election to be excluded; and all judges assigned to this litigation and their immediate family members. In the alternative, if the Court chooses not to utilize a bellwether process, theg Plaintiffs request that the Court also certify the following additional classes for the states of Alabama, California, Georgia, Michigan, Missouri, New Jersey, New York, Pennsylvania, and Texas: "All persons who, prior to the date on which the Class Vehicle was recalled and after July 10, 2009, bought a Class Vehicle in the state of (e.g., Alabama) and (i) still own the Class Vehicle, or (ii) sold the Class Vehicle after the date on which the Class Vehicle was recalled, or (iii) following an accident, whose Class Vehicle was declared a total loss after the date on which the Class Vehicle was recalled;" Excluded from the Class are GM; its parents, subsidiaries, affiliates, officers and directors; any entity in which GM has a controlling interest; all persons who make a timely election to be excluded; and all judges assigned to this litigation and their immediate family members. In addition, the Plaintiffs move to be appointed representatives of the Classes, and to appoint the following attorneys and firms as Class Counsel under Fed. R. Civ. P. 23(g): Peter Prieto of Podhurst Orseck, P.A.; Curtis Miner of Colson Hicks Eidson; Todd A. Smith of Smith LaCien LLP; David Boies of Boies, Schiller & Flexner LLP; Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein LLP; James E. Cecchi of Carella Byrne Cecchi Olstein Brody & Agnello, PC; and Roland Tellis of Baron & Budd, PC. The motions relate to economic loss track cases against GM. Each GM Class Vehicle came equipped with a defective, dangerous airbag. Because of a uniform design flaw -- the use of the propellant ammonium nitrate in the airbag’s inflator -- the defective airbag in each Class Vehicle exposed vehicle occupants to an unreasonable safety risk. Far from enhancing safety, the airbags have an unacceptably dangerous propensity to deploy aggressively or rupture, spraying metal shrapnel toward vehicle occupants. GM knew about this jarring defect before the Class Vehicles were sold. But switching to a safer, defect-free airbag, especially mid-production cycle, would have been costly and delayed the production and sale of its vehicles. So, GM stuck with the defective airbags. But it never disclosed the defect to purchasers during the Class period. Rather, it uniformly marketed the Class Vehicles as safe, even promoting the defective airbags as safety features. GM is an American multinational automotive manufacturing corporation headquartered in Detroit, Michigan, United States. A copy of the Plaintiffs' motion to certify class dated March 16, 2022 is available from PacerMonitor.com at https://bit.ly/3j03AZN at no extra charge.[CC] The Plaintiffs are represented by: Peter Prieto, Esq. Aaron S. Podhurst, Esq. Stephen F. Rosenthal, Esq. John Gravante, Esq. Matthew P. Weinshall, Esq. Alissa Del Riego, Esq. PODHURST O RSECK, P.A. SunTrust International Center One S.E. Third Ave., Suite 2300 Miami, FL 33131 Telephone: (305) 358-2800 Facsimile: (305) 358-2382 E-mail: pprieto@podhurst.com apodhurst@podhurst.com srosenthal@podhurst.com jgravante@podhurst.com mweinshall@podhurst.com adelriego@podhurst.com GILEAD SCIENCES: Bid to Dismiss Staley Class Action Tossed ---------------------------------------------------------- In the class action lawsuit captioned as Staley et al v. Gilead Sciences, Inc., et al., Case No. 3:19-cv-02573-EMC (N.D. Cal.), the Hon. Judge Edward M. Chen entered an order denying the Moving Defendants' motion to dismiss for lack of standing. The End-Payor Plaintiffs ("EPPs") have filed an antitrust class action against, Gilead and Janssen. The EPPs' operative complaint is located at consolidated class action complaint or ("FAC"). Addendum B of the FAC reflects that one of the named EPPs is Blue Cross Blue Shield Association ("BCBSA"). Per the addendum, BCBSA is "a national association of 35 [now 34] independent and locally operated Blue Cross Blue Shield companies" (also known as the "Local Blues"). However, BCBSA asserts claims in this litigation on its own behalf "as the carrier of the Service Benefit Plan, one of the Federal Employee Health Benefit Plans." According to BCBSA, it "purchased and/or provided reimbursement for some or all of the purchase price" for the drugs at issue "at supracompetitive prices during the Class Period" in a number of different states. Currently pending before the Court is a motion to dismiss filed by Gilead and Janssen ("Moving Defendants"). According to Moving Defendants, BCBSA lacks standing to bring claims because it is not a "true" purchaser -- i.e., it did not use its own funds to buy any drugs and/or, even if it did, it was ultimately reimbursed for those purchases by the federal government. Moving Defendants characterize BCBSA as simply a financial intermediary, comparable to, e.g., pharmacy benefits manager. Having considered the parties’ briefs and accompanying submissions, as well as the oral argument of counsel, the Court denies the motion to dismiss. he Court also denies BCBSA's motion to strike which is related to the motion to dismiss. Gilead Sciences is an American biopharmaceutical company headquartered in Foster City, California, that focuses on researching and developing antiviral drugs used in the treatment of HIV/AIDS, hepatitis B, hepatitis C, and influenza, including ledipasvir/sofosbuvir and sofosbuvir. A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at vhttps://bit.ly/3wNxysg at no extra charge.[CC] GOVERNMENT EMPLOYEES: Court Certifies Claimants Class in Lewis Suit ------------------------------------------------------------------- In the case, SHERRY LEWIS and DAVID V. LEWIS, individually and on behalf of all others similarly situated, Plaintiffs v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant, Civil No. 18-5111 (RBK/MJS) (D.N.J.), Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey issued an Opinion: 1. denying the Defendant's Motion to Strike the Testimony and Report of Lance Kaufman; 2. granting Defendant's Motion to Strike the Testimony and Report of David Schwickerath; and 3. granting the Plaintiffs' Motion to Certify Class. I. Introduction The matter is a purported class action on behalf of GEICO automobile insurance claimants. The Plaintiffs allege that Government Employees Insurance Co. ("GEICO") underpays claimants by not including applicable sales tax, license fees, and title fees and by imposing arbitrary "condition adjustments" in violation of New Jersey contract law and state statutes. The Plaintiffs bring the action on behalf of all those insured under automobile insurance policies issued in New Jersey by GEICO whose claim valuations omitted taxes and fees and whose claim valuations were based upon the values of comparable vehicles that were reduced by "condition adjustments." They bring the action under the Class Action Fairness Act of 2005, 28 U.S.C. Section 1332(d) against Defendant GEICO. II. Background The named Plaintiffs are New Jersey residents, who leased a vehicle. GEICO insured the vehicle pursuant to a New Jersey Family Automobile Insurance Policy. The policy period was Jan. 6, 2018 to July 6, 2018. The policy required payment on first-party total loss physical damage claims of "Actual Cash Value" ("ACV"), which the policy defines as "the replacement cost of the auto or property less depreciation or betterment." Relating to physical damage collision coverage, the Policy provides as follows: "Actual cash value of property will be determined at the time of the loss and will include an adjustment for depreciation and/or betterment and for the physical condition of the property." (emphasis in original). GEICO's website states that if a policy covers total loss, GEICO will "pay the actual cash value of the vehicle (plus applicable state fees and taxes) less any deductible." To replace a vehicle, the policyholder will have to pay sales tax, title fees, and/or license plate transfer fees. Under New Jersey law, ACV includes sales tax and specifically requires that, whether the insurer elects to replace a totaled vehicle or make a cash settlement for a totaled vehicle, it must include applicable sales tax in its offer. N.J.A.C.11:30-10.4(a). Contrary to New Jersey law, its own policy terms, and statements on its website, GEICO does not include applicable state fees and taxes as part of its claims payments to total loss insureds in New Jersey. In 2009, the New Jersey Department of Banking and Insurance found that GEICO violated New Jersey law for failing to include the full ACV Sales Tax in its settlement offers to insureds. Further, GEICO systematically underpays settlement offers by applying arbitrary "condition adjustments." When GEICO determines the value of comparable vehicles, it relies on a valuation report from a third-party company, CCC Information Services, Inc. The reports purport to contain values for comparable used vehicles recently sold or for sale in the geographic area of the insured. The valuation reports reduce the estimated values of comparable vehicles based on "condition adjustments." On Jan. 10, 2018, the Plaintiffs' daughter, an additional insured on the Policy, was involved in a collision resulting in a total loss of their covered vehicle. GEICO, through its adjuster, issued an estimate of record that the vehicle was a total loss. Estimated cost of repair was $17,613.05 (including 6.625% sales tax on a $16,518.69 estimated repair cost subtotal). GEICO obtained a valuation report from CCC with an "Adjusted Vehicle Value" for the vehicle. The CCC report contained a chart comparing the loss vehicle to three comparable vehicles, listing the equipment configuration for each. The list price for each comparable vehicle was $17,325, $18,879, and $17,770. Beneath each list price, the CCC report lists "adjustments" to the value of each comparable based on mileage and condition. The CCC report applies a flat $1,006 reduction to the value of each comparable vehicle, without an explanation for that number. GEICO made a cash settlement offer to the Plaintiffs for $18,258, minus the $1,000 deductible, for a total of $17,258. The Plaintiffs contacted the adjuster who confirmed that the cash settlement offer does not include sales tax as part of ACV for total loss claims on leased vehicles in New Jersey. This is despite policy language treating "leased" vehicles as "owned auto" for the purpose of physical damage coverage. Upon learning that the offer did not include sales tax, the Plaintiffs requested that the cash settlement include sales tax. GEICO refused. A Jan. 29, 2018 letter from the adjuster to the Plaintiffs stated that "The Net Settlement Amount is the Base Value of your vehicles, plus any applicable fees and adjustments." GEICO paid $17,258 ($18,258 minus the deductible) to the lienholder VW Credit Inc. This payment did not include ACV Sales Tax, license fees, or title fees. The Plaintiffs bring the action on behalf of themselves and the following classes: "All individuals insured in New Jersey by GEICO under a GEICO private passenger vehicle policy who, from the earliest allowable time to the present: (1) Received a first party total loss settlement or settlement offer that did not include applicable sales tax, title fees, or license plate fees; or (2) Received a first party total loss settlement or settlement offer based in whole or in part on the price of comparable vehicles reduced by a condition adjustment. The Plaintiffs bring counts for (I) breach of contract, (II) breach of the implied covenant of good faith and fair dealing, (III) declaratory judgment and injunctive relief, and (IV) New Jersey Consumer Fraud Act. The Plaintiffs seek (A) an order certifying the Class, (B) restitution, (C) injunctive relief to prevent continuation of illegal practices by GEICO and for other injunctive relief as proven appropriate, (D) actual, statutory, and punitive damages according to proof, (E) a declaration that GEICO is required under policies issued pursuant to Policy Form A-30NJ to pay ACV, including sales tax, title fees, and license plate transfer fees, that GEICO may not base its valuation and payment of the Plaintiffs' and each Class Member's claim on values of comparable vehicles that have been artificially reduced by an arbitrary and unjustified "condition adjustment," and that GEICO must itemize and explain "condition adjustments" applied to comparable vehicles, (F) attorneys' fees, (G) costs of suit, (H) pre- and post-judgment interest on any amounts awarded, and (I) other and further relief as the Court may deem proper. III. Discussion A. Daubert Motions GEICO moves to strike the testimony and report of two of Plaintiffs' experts, Lance Kaufman and David Schwickerath, because they are unqualified to provide expert testimony relevant to the class certification inquiry and because their reports are unreliable and irrelevant. 1. Testimony and Report of Lance Kaufman Dr. Lance Kaufman, an economist, proposes a damages calculation methodology by modifying the CCC to remove the condition adjustment to the comparable vehicles while leaving in any positive condition adjustment to the total loss vehicle. Damages in Kaufman's analysis equal the base vehicle value calculated by CCC less the condition adjustments on the comparable vehicles, with some other minor adjustments for taxes, fees, and settlement. In other words, the "economic harm" is the amount of the condition applied to any comparable vehicle used in the CCC MVR, plus, potentially, amounts for taxes and fees. Judge Kugler is satisfied that Kaufman is qualified and that his opinion is reliable and relevant. GEICO raises no challenges to Kaufman's statistical methods. GEICO's first challenge is that Kaufman's methodology assumes that the condition adjustments are unlawful. Judge Kugler holds that it is not a valid basis to exclude an expert's opinion. GEICO's next challenge is that Kaufman's methodology does not reliably estimate harm. But,, Juduge Kugler agrees with the Plaintiffs that Kaufman has demonstrated a reliable methodology to calculate damages whether the condition adjustment is present and disclosed or not. This is because the condition deduction is always the same for all dealer vehicles in each valuation report, making the condition deduction ascertainable. GEICO's next challenge is that Kaufman assumes that the condition adjustment to comparable vehicles injured all class members in the full amount of the condition adjustment, without accounting for any reduction in the value of comparable vehicles caused by those adjustments that could be offset partially or completely by other steps in the process, such as through condition adjustment to the loss vehicle. Judge Kugler opines that it is not a basis to exclude. Kaufman is not obligated to incorporate GEICO's theories of how harm may have been mitigated or offset by other steps in the vehicle valuation process. Rather, Kaufman's analysis is directed to the Plaintiffs' theory that the condition adjustments were unsupported and unexplained. GEICO next argues that Kaufman's methodology does not consider any purported improper conditioning of loss vehicles, only focusing on the conditioning of comparable vehicles. Same as discussed, a perceived failure to incorporate GEICO's anticipated defenses into an analysis is not a basis to exclude, Judge Kugler finds. GEICO further argues that Kaufman is not qualified because his experience with CCC systems is limited and because he overly relies on Plaintiffs' counsel to form his opinions. But Kaufman is not offering opinions on CCC's valuation process. His reliance on representations by Plaintiffs' counsel is appropriate. He must make certain assumptions about liability, at the direction of counsel, to provide a damages methodology in the event that the factfinder finds liability. On relevance, GEICO argues that Kaufman's opinions are not relevant because they do not amount to a methodology for calculating vehicle actual cash value or determining whether actual cash value was underpaid on any claim. This is not a problem because the Plaintiffs do not seek to ascertain or recover actual cash values of vehicles. Rather, they seek to recover improper adjustments. GEICO further argues that Kaufman's opinions are not relevant because he has not yet calculated damages. At this stage in the litigation, he is not obligated to do so. Judge Kugler denies the motion. 2. Testimony and Report of David Schwickerath GEICO's first challenge is that Schwickerath is not qualified. This challenge covers several critiques: Schwickerath lacks the specific industry and legal experience to opine on CCC's financial reporting practices; Schwickerath makes improper legal opinions; Schwickerath has no experience with the relevant New Jersey regulations; Schwickerath has no knowledge of the CCC valuation process. GEICO's second challenge is that Schwickerath's report does not employ a reliable methodology. Schwickerath opines that CCC and GEICO failed to follow financial reporting standards, but he does not explain why that matters. GEICO's third challenge is that Schwickerath's opinion is not relevant. Schwickerath testified at his deposition that he is not giving any opinions on whether class certification is appropriate. Judge Kugler opines that whether CCC and GEICO adhered to or did not adhere to generally accepted accounting principles is not a question in the case, so comparing their practices to financial reporting standards is not a reliable method. The Plaintiffs also have not provided a basis for making the connection between generally accepted accounting principles and compliance with New Jersey state law. Moreover, an expert may not opine on what accounting methods are required or acceptable under New Jersey state law. The motion is granted. B. Class Certification Motion In opposition to the Plaintiffs' class certification motion, GEICO argues that the Plaintiffs have no standing, that the class is not ascertainable, Rule 23(a) is not met, and Rule 23(b) is not met. Specifically, GEICO argues that the Plaintiffs are not adequate class representatives, the Plaintiffs' claims are not typical of the class, individual questions on liability predominate, individual defenses to liability predominate, no reliable damages methodology, class treatment is not superior. Judge Kugler opines that (i) it is a factual dispute about the merits, not a standing challenge; (ii) the Plaintiffs have demonstrated that Rule 23(a) requirements -- numerosity, commonality, typicality, and fair and adequate class representation -- are met; and (iii) the Plaintiffs have demonstrated that Rule 23(b)(3) requirements -- predominance and ascertainability -- are met. Because he certifies the class under Rule 23(b)(3), Judge Kugler need not address the alternative methods of certification proposed. C. 23(g) Class Counsel Appointment The Plaintiffs have proposed Plaintiffs' counsel, of whom James Cecchi appears to manage filings and correspondence with the Court in this matter. Judge Kugler accepts the suggestion. The counsel has investigated and pursued these claims. The counsel has the requisite managerial and litigation experience. Judge Kugler sees no reason to disagree and appoints Plaintiffs' Counsel James Cecchi as the class counsel. IV. Conclusion For the reasons he set forth, Judge Kugler (i) denied Defendant GEICO's Motion to Strike the Testimony and Report of Lance Kaufman; (ii) granted the Defendant's Motion to Strike the Testimony and Report of David Schwickerath; and (iii) granted the Plaintiffs' Motion to Certify Class. An order follows. A full-text copy of the Court's March 18, 2022 Opinion is available at https://tinyurl.com/kdh6jhuz from Leagle.com. GRAB HOLDINGS: Bernstein Liebhard Discloses Class Action Lawsuit ---------------------------------------------------------------- Bernstein Liebhard LLP announces that a securities class action lawsuit has been filed on behalf of investors who purchased or acquired the securities of Grab Holdings Limited between November 12, 2021 and March 3, 2022, inclusive (the "Class Period"). The lawsuit was filed in the United States District Court for the Southern District of New York and alleges violations of the Securities Exchange Act of 1934. Grab offers a superapp that operates primarily across the deliveries, mobility, and digital financial services sectors in Southeast Asia. On December 1, 2021, Grab became a public entity via a business combination with Altimeter Growth Corp., a special purpose acquisition company. On March 3, 2022, at 7:01 a.m. Eastern, Grab disclosed that its fourth quarter revenues had declined 44% from the previous quarter and reported a $1.1 billion loss for the quarter. Grab's Chief Financial Officer attributed the poor financial results to "invest[ing] heavily" in driver incentives and stated that it would take one or two quarters "to get that equilibrium between drivers and riders, between supply and demand." On this news, Grab's stock price fell over 37%, to close at $3.28 per share on March 3, 2022. Throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that Grab's driver supply declined during the third quarter; (2) that, as a result, Grab continued to invest heavily in driver and consumer incentives to "preemptively recalibrate driver supply"; (3) that, as a result, the Company's financial results would be adversely impacted, including, among other things, a significant decline in revenue; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you wish to serve as lead plaintiff, you must move the Court no later than May 16, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased GRAB securities, and/or would like to discuss your legal rights and options please visit Grab Holdings Limited Shareholder Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. [GN] GREENE PASTURES: Faces Suit Over Violation of Real Property Tax Law ------------------------------------------------------------------- ARIELE B. SCHARFF, individually and on behalf of all others similarly situated, Plaintiff v. GREENE PASTURES LLC, Defendant, Case No. 508837/2022 (N.Y. Sup., Kings Cty., March 28, 2022) alleges violation of the New York Real Property Tax Law. According to the complaint, the Defendant is the owner-in-fee of the apartment building located at 1003 Greene Avenue in Stuyvesant Heights (the "Building"). The Plaintiff resides in Unit 3J in the Building. The Building participates in the 421-a Program, which requires landlords to register their units with the Division of Housing and Community Renewal, ("DHCR"), and that those apartments be treated as rent-stabilized. The New York State Legislature enacted the Real Property Tax Law 421-a, which provides tax incentives for developers who construct new, market-rate, multi-family housing. Allegedly, the Defendant knowingly and willfully failed to comply with the requirements of the 421-a Program by, among other things, improperly registering its apartments with DHCR. GREENE PASTURES LLC is engaged in the residential building rental business. [BN] The Plaintiff is represented by: Lucas A. Ferrara, Esq. Roger A. Sachar Jr., Esq. NEWMAN FERRARA LLP 1250 Broadway, 27th Floor New York, NY 10001 Telephone: (212) 619-5400 Email: lferrara@nfllp.com rsachar@nfllp.com HNTB CORPORATION: Morel Labor Suit Removed to S.D. California ------------------------------------------------------------- The case styled MATTHEW MOREL, individually and on behalf of all others similarly situated v. HNTB CORPORATION and DOES 1-50, inclusive, Case No. 37-2022-00007029-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 March 28, 2022. The Clerk of Court for the Southern District of California assigned Case No. 3:22-cv-00408-AJB-AHG to the proceeding. The case arises from the Defendant's alleged failure to reimburse work expenses and unfair business practices in violation of the California Labor Code and the California's Business and Professions Code. HNTB Corporation is an American infrastructure design firm, headquartered in Kansas City, Missouri. [BN] The Defendant is represented by: Mark C. Tatum, Esq. Laura M. Booth, Esq. SHOOK, HARDY & BACON L.L.P. Jamboree Center 5 Park Plaza, Suite 1600 Irvine, CA 92614 Telephone: (949) 475-1500 Facsimile: (949) 475-0016 E-mail: mtatum@shb.com lbooth@shb.com HOME CITY ICE: Court Certifies Class in Pansiera Suit ----------------------------------------------------- In the class action lawsuit captioned as RICK PANSIERA, on behalf of himself and others similarly-situated, v. THE HOME CITY ICE COMPANY, Case No. 1:19-cv-01042-TSB (S.D. Ohio), the Hon. Judge Timothy S. Black entered an order granting plaintiff's motion to certify a class to pursue declaratory and injunctive relief only: 1. The Plaintiff's motion for class certification is granted in part and denied in part, as follows: a. For the purpose of seeking declaratory and injunctive relief only, the Court hereby certifies the following class: "All persons in the United States who purchased an underweight "7 lb." ice bag from HCI during the applicable limitations period. Excluded from the Nationwide Class are persons who made such purchase for purpose of resale; the defendant, its officers, directors, employees, legal representatives, successors, assigns; any person or entity who has or who at any time during the relevant class period had a controlling interest in any Defendant; the Judges to whom this case is assigned and any member of the Judges' immediate family." b. The Court denies the Plaintiff's motion for class certification under Rule 23(b)(3). Accordingly, Plaintiff's claims for monetary damages cannot be maintained as a class action. 2. The Court appoints Rick Pansiera as class representative and his counsel from the law firms of Vorys, Sater, Seymore and Pease LLP and Santen and Hughes, LPA as class counsel. 3. In coordination with the parties, the Court shall set a status conference to discuss, inter alia, "appropriate notice" to the class pursuant to Fed. R. Civ. P. 23(c)(2) (A). 4. The Court denies Plaintiff's request for oral argument. The Court said, "HCI's actions generally apply to the class. For that reason, declaratory and injunctive relief -- if it is warranted -- would uniformly benefit the class. Thus, Plaintiff is entitled to class certification for declaratory and injunctive relief under Rule 23(b)(2). To summarize the Court's class-oriented determinations, Plaintiff is not entitled to have a class certified for monetary damages under Rule 23(b)(3). This is because Plaintiff has not proposed an ascertainable class. In turn, the Court has no way to administer a Rule 23(b)(3) class. The Court could not, for example, guarantee rights to those who would wish to opt-out of a potential monetary settlement or sufficiently." Accordingly, Plaintiff's motion for class certification will be denied with respect to all monetary claims. The Court has separately considered Plaintiff's request for a class that would pursue declaratory and injunctive relief under Rule 23(b)(2). Here, the Plaintiff is entitled to class certification. Plaintiff has met the Rule 23(a) prerequisites and demonstrated that declaratory and injunctive relief would uniformly benefit the proposed class, the Court adds. From the Court's view, the Plaintiff's request for class certification for declaratory and injunctive relief applies only to the proposed nationwide class. The Plaintiff specifically argues the nationwide class's entitlement to certification for declaratory and injunctive. But the Plaintiff only analyzes the Indiana subclass's entitlement to class certification under Rule 23(b)(3), and makes no mention of Rule 23(b)(2) or declaratory or injunctive relief to which the subclass may be entitled. Thus, the Court will certify a nationwide class only. Home City Ice a Midwest based company that specializes in the manufacturing and delivery of high quality ice. Through advanced production and filtration. A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3uFHKQL at no extra charge.[CC] HOME DEPOT: Deadline to File Class Cert Bids Reset to July 21 ------------------------------------------------------------- In the class action lawsuit captioned as Barragan, et al., v. Home Depot U.S.A., Inc., et al., Case No. 3:19-cv-01766 (S.D. Cal.), the Hon. Judge Andrew G. Schopler entered an order granting the parties' joint motion to extend the class-certification deadline. The deadline for class-certification motions limited to the third cause of action is reset to July 21, 2022, the Court says. The nature of suit states Other Labor Litigation. Home Depot is a home improvement retailer in the United States, supplying tools, construction products, appliances, and services. The company is headquartered in incorporated Cobb County, Georgia, with an Atlanta mailing address.[CC] HOMOLOGY MEDICINES: Pomerantz Law Discloses Class Action -------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Homology Medicines, Inc. ("Homology" or the "Company") (NASDAQ: FIXX) and certain of its officers. The class action, filed in the United States District Court for the Central District of California, and docketed under 22-cv-01968, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Homology securities between June 10, 2019 and February 18, 2022, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased or otherwise acquired Homology securities during the Class Period, you have until May 24, 2022 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Homology, a genetic medicines company, focuses on transforming the lives of patients suffering from rare genetic diseases. The Company's lead product candidate is HMI-102, which is in Phase I/II pheNIX clinical trial, a gene therapy for the treatment of phenylketonuria (PKU) in adults (the "HMI-102 Trial"). On June 10, 2019, Homology issued a press release announcing that it had commenced enrollment of the HMI-102 Trial. The complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company had overstated HMI-102's efficacy and risk mitigation; (ii) accordingly, it was unlikely that the Company would be able to commercialize HMI-102 in its present form; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. On July 21, 2020, Mariner Research ("Mariner") published a report questioning statements by Homology and its officers about the efficacy of HMI-102, the Company's lead product candidate for treatment of phenylketonuria. Mariner focused on Homology's HMI-102 dose escalation pheNIX trial, concluding that the Company concealed data showing HMI-102's lack of efficacy and indicating that the program was unlikely to proceed to commercialization. Among other evidence, Mariner cited an email from Homology's Chief Communications Officer appearing to indicate the Company's awareness that a HMI-102 high dose patient had adverted to the adverse efficacy issue in a social media post during April 2020. On this news, Homology's stock price fell $1.71 per share, or 10.38%, over the following three trading days, closing at $14.77 per share on July 24, 2020. Then, on February 18, 2022, Homology issued a press release disclosing that "the U.S. Food and Drug Administration has notified the company that its pheNIX gene therapy trial of HMI-102 in adults with phenylketonuria has been placed on clinical hold due to the need to modify risk mitigation measures in the study in response to observations of elevated liver function tests" and that "[t]he Company expects to receive an official clinical hold letter within 30 days." On this news, Homology's stock price fell $1.26 per share, or 32.64%, to close at $2.60 per share on February 22, 2022. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomlaw.com [GN] I.C. SYSTEM: $11.8K in Attys.' Fees & Costs Awarded in Hancock Suit ------------------------------------------------------------------- In the case, ROXANNE HANCOCK, on behalf of herself and all others similarly situated, Plaintiffs v. I.C. SYSTEM, INC.; AND JOHN DOES 1-25, Defendants, Case No. 21-CV-7085 (RA) (RWL), Judge Robert W. Lehrburger of the U.S. District Court for the Southern District of New York awarded the Plaintiff attorney's fees in the amount of $11,297 and costs in the amount of $495.76. I. Background The decision addresses the Plaintiff's application for attorney's fees and costs following acceptance of an offer of judgment in the action brought pursuant to the Fair Debt Collection Protection Act, 15 U.S.C. Section 1692, et seq. ("FDCPA"). The Plaintiff filed this case after having received a letter from Defendant I.C. System ("ICS") seeking to collect a debt of $59 owed to Spectrum for unreturned equipment. Hancock claimed that she owed Spectrum an amount less than $59 and that ICS' letter failed to properly inform her of consequences of disputing the debt. As revealed in discovery, Hancock had documentation showing that she had returned the equipment to Spectrum before the account was referred to ICS for collection. Although Hancock could have provided the same documentation to ICS or Spectrum after receiving ICS' letter but before filing suit, she did not do so. Ms. Hancock filed her case as a class action on Aug. 22, 2021. ICS answered the complaint, and the parties proceeded to discovery. Hancock served interrogatories, document requests, and requests to admit. A substantial number of the requests focused on class discovery. Hancock also insisted on receiving class related information from ICS as a condition to engage in meaningful settlement negotiations. On Jan. 18, 2022, ICS served an offer of judgment pursuant to Fed. R. Civ. P. 68. Specifically, it offered to have judgment entered against it in the amount of $1,050 "arising from the Plaintiff's individual claims against the Defendant" and an "additional amount for reasonable attorney's fees and taxable costs incurred by the Plaintiff in an amount to be determined by agreement of the parties, and if the parties cannot agree, by the Court upon Motion by the Plaintiff." Ms. Hancock accepted the offer on Jan. 26, 2022, and the Court entered judgment the next day. The parties could not agree on the amount of attorney's fees. Accordingly, the Plaintiff filed the instant motion, seeking attorney's fees in the amount of $16,004.32, which is now fully briefed. ICS asserts that a reasonable attorney's fees award in the case should be $4,370.99. The matter was referred to me for resolution of a non-dispositive motion on Feb. 3, 2022. II. Discussion A. Hourly Rates Judge Lehrburger begins with assessment of the hourly rates sought by Hancock. Hancock was represented in the action by Jones, Wolf & Kapasi, LLC and seeks reimbursement of fees for the work of two attorneys from that firm: Joseph K. Jones, who billed at an hourly rate of $575, and Benjamin J. Wolf, who billed at an hourly rate of $475. The billing records submitted reflect no tasks performed by other attorneys, paralegals, or administrative staff. Judge Lehrburger finds reasonable hourly rates for the lodestar calculation to be $450 for Jones and $400 for Wolf (who has less experience than Jones). B. Hours Worked The time records submitted reflect that Jones and Wolf together worked 32.28 hours on the case. Most of the work was performed by Wolf, who expended 25.68 hours to Jones' 6.7 hours. Tasks included, among others, drafting the complaint, reviewing and drafting correspondence, drafting and responding to discovery requests, and seeking a protective order. ICS asserts that the hours claimed should be reduced by 50% because the matter is a "stock FDCPA case" that used "generic, cut and paste requests." Judge Lehrburger agrees with that characterization to some extent in that most of the requests appear to be ones that could be used for almost any FDCPA case and adapted simply by swapping out names of the parties. Nonetheless, he has no basis to conclude that the time spent, which overall is modest, was over-stated or unreasonable. C. Adjustment To Hours Judge Lehrburger does find, however, that an adjustment of hours is warranted. He agrees with ICS that a reduction should be made because a substantial part of the case was geared to a class action, which never came to fruition and for which no payment was made as part of the offer of judgment. Hancock and her counsel should not be rewarded for time spent on class-action work that proved to be of little or no relevance. Taking into account the adjustments to the hourly rates and the number of hours, the total reasonable fee award is (5.7 × $450) + (21.83 × $400) = $11,297. D. Costs The Plaintiff seeks $495.76 in costs consisting of the court filing fee, service of the complaint and summons, and postage. Those expenses are routinely recoverable as litigation costs. ICS does not challenge any cost amounts, and Judge Lehrburger finds them to be recoverable. Accordingly, Hancock is awarded $495.76 in costs. III. Conclusion For the foregoing reasons, Judge Lehrburger awarded the Plaintiff $11,297 in attorney's fees and $495.76 in costs, for a total award of $11,792.76. To the extent not expressly discussed, he has considered the parties' arguments and found them to be without merit. A full-text copy of the Court's March 18, 2022 Decision & Order is available at https://tinyurl.com/y45aca67 from Leagle.com. INGRID & ISABEL: CMP & Sched Order Entered in Cruz Class Suit ------------------------------------------------------------- In the class action lawsuit captioned as SHAEL CRUZ, Individually, and On Behalf of All Others Similarly Situated, v. INGRID & ISABEL, LLC, Case No. 1:21-cv-09999-LJL (S.D.N.Y.), the Hon. Judge Lewis J. Liman entered a case management plan and scheduling order as follows: -- Any motion to amend or to join April 5, 2022 additional parties shall be filed no later than: -- All fact discovery is to be July 6, 2022 completed no later than: -- Initial requests for production April 5, 2022 of documents shall be served by: -- Depositions shall be completed by: May 6, 2022 -- Requests to Admit shall be May 20, 2022 served no later than: -- Any motion for summary judgment Sept. 12, 2022 must be filed no later than: A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/38g810E at no extra charge.[CC] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. JOSEPH H. MIZRAHI LAW, P.C. Telephone: (917) 299-6612 E-mail: JOSEPH@JMIZRAHILAW.COM The Defendant is represented by: Christopher Tom, Esq. 3315 Olde Winter Trl Youngstown, OH 44514-2895 E-mail: christopher.d.tom@gmail.com INMAR INC: Court Denies Bid for Summary Judgment in Mr. Dee's Suit ------------------------------------------------------------------ In the case, MR. DEE'S INC., RETAIL MARKETING SERVICES, INC., on behalf of themselves and all others similarly situated, and CONNECTICUT FOOD ASSOCIATION, Plaintiffs v. INMAR, INC., CAROLINA MANUFACTURER'S SERVICES, INC., CAROLINA SERVICES, and CAROLINA COUPON CLEARING, INC., Defendants, Case No. 1:19CV141 (M.D.N.C.), Judge William L. Osteen, Jr., of the U.S. District Court for the Middle District of North Carolina denied the Motion for Summary Judgment filed by Defendants Inmar, Inc., Carolina Manufacturer's Services, Inc., Carolina Services, and Carolina Coupon Clearing, Inc. I. Background Plaintiff Mr. Dee's manufactures food products. It issues coupons to customers and purchases coupon processing services. Plaintiffs Retail Marketing Services, Inc. and Connecticut Food Association are entities who purchase coupon processing services for retailers and members. Defendant Inmar sells coupon processing services to manufacturers. Its subsidiary, Defendant Carolina Manufacturer's Services, Inc. ("CMS"), sells coupon processing services to manufacturers. Inmar's subsidiaries, Defendants Carolina Coupon Clearing, Inc. ("CCC") and Carolina Services ("CS"), sell coupon processing services to retailers. Inmar's president during the relevant time period was Robert Carter. Non-party International Outsourcing Services, LLC ("IOS"), formerly known as International Data, LLC, acted as a processor in the coupon redemption process. IOS was initially a named party. In November 2008, these proceedings were stayed on a motion by IOS pending resolution of a criminal case against its former officers and employees. IOS filed a Suggestion of Bankruptcy in 2009. IOS was later dismissed from these proceedings. The action was initially brought in the Eastern District of Wisconsin in 2008. In 2019, the case was transferred to this district. The Plaintiffs amended their Complaint three times. The Defendants filed an Answer to the Third Amended Complaint. On Aug. 2, 2021, the Defendants filed a Motion for Summary Judgment, and accompanying brief, the Plaintiffs responded, and the Defendants replied. On April 11, 2001, Inmar and IOS entered into a series of related agreements: (1) an Asset Purchase Agreement; (2) a Proprietary Data Transfer Agreement; (3) a Coupon Sub-Processing Agreement; and (4) a Joint Marketing Agreement. The Asset Purchase Agreement allowed CMS to purchase all contracts for coupon processing between IOS subsidiary Consumer Response Company and its manufacturer customers. The Joint Marketing Agreement combined IOS and Inmar's marketing efforts to solicit contracts with large mass merchandisers. The Proprietary Data Transfer Agreement established a "One-Count" program between IOS and CMS. Finally, the Coupon Sub-Processing Agreement allowed CCC to "obtain an additional flexible means of subprocessing coupons received by CCC from certain of its Retail Stores in order to satisfy the Retail Stores' needs and expectations during peak periods of usage of coupon promotion." Under the Coupon Sub-Processing Agreement, IOS would conduct the retail coupon processing services for CCC. After these agreements, Inmar and IOS's fees increased. IOS' CEO Balsiger maintained that IOS' fees were increasing prior to the execution of these agreements. Inmar's president denies that there were ever any discussions between IOS and Inmar about fixing shipping fees. During IOS CEO Chris Balsiger's criminal trial, he testified that he entered into a joint venture with Inmar "to head off a price war on coupons" which "allowed them to escalate their freight revenue." However, when deposed for the case, Balsiger denied discussions about fixing shipping fees. II. Analysis The Defendants move for summary judgment, contending that there is no basis in the record on which a jury could infer that Inmar and IOS conspired to fix shipping fees. They emphasize that the case rests entirely on circumstantial evidence, and that "antitrust law limits the range of permissible inferences from ambiguous evidence in a Section 1 case." A. Market and Customer Allocation Judge Osteen first addresses the Plaintiffs' argument that the Defendants have failed to move for summary judgment on market and customer allocation. The Plaintiffs argue that the Defendants "do not seek summary judgment on, and fail to carry their initial burden on, market and customer allocation, and other anticompetitive restraints." In reply, the Defendants assert that the Third Amended Complaint "is rife with allegations that the Defendants conspired to fix prices" and "having continually 'narrowed' their claims over the 14-year pendency, it is disingenuous for the Plaintiffs to seek to benefit from a contention that the Defendants did not address the remnant of their ever-shrinking case." Judge Osteen opines that although the Defendants make passing references to the Plaintiffs' allegation regarding market and customer allocation, the Defendants "fail to develop any argument or cite any authority in support of their request." Because a price fixing agreement and a market allocation agreement are distinct types of unlawful restraints on trade, the Defendants may be liable for violating Section 1 of the Sherman Act because of a price fixing agreement, a market or customer allocation agreement, or both. Given that the Defendants provided no argument to support the Court granting summary judgment for them on the market and customer allocation agreement allegations, it would be inappropriate for the Court to find that issue no longer remains. Therefore, Judge Osteen finds the Plaintiffs' allegation of a Section 1 violation because of customer and market allocation agreements remains, and that issue must be resolved at trial. B. Price Fixing Because the Defendants failed to properly move for summary judgment on the issue of an anticompetitive agreement to allocate customers and markets, Judge Osteen focuses the remainder of its analysis on the Defendants' argument for summary judgment on allegations of price fixing. In determining whether a genuine dispute of material fact exists, a court considers facts that could "be presented in a form that would be admissible in evidence" at trial. It is true that Balsiger's criminal trial transcripts would be inadmissible hearsay at a trial in the case because the Plaintiffs likely could not show that Balsiger is unavailable to testify, and even if he were unavailable, the Defendants did not have "an opportunity and similar motive to develop" Balsiger's testimony at his criminal trial. However, Judge Osteen sees no reason why the contents of Balsiger's criminal trial testimony could not "be presented in a form that would be admissible in evidence" at trial in the case. The Plaintiffs presumably could subpoena Balsiger for live testimony or take a trial deposition and introduce that testimony. For that reason, Judge Osteen finds he may properly consider Balsiger's criminal trial testimony in a manner similar to any other sworn affidavit or declaration in analyzing whether to grant summary judgment on a Sherman Act Section 1 claim based on price fixing. First, Judge Osteen finds that Balsiger's testimony reflects a clear intent on the part of IOS to fix prices but does not reflect such intent on the part of Inmar. Although Balsiger's testimony could be interpreted as evidence Inmar entered the agreement with the intent to raise shipping fees, Judge Osteen declines at this juncture to make such a finding; however, because the Court will find that the Plaintiffs have established a genuine dispute of material fact as to whether there is circumstantial evidence of a conspiracy to fix prices, he need not determine whether there is direct evidence of a price-fixing conspiracy. Second, Judge Osteen finds (i) the Plaintiffs have offered evidence of parallel increases in shipping fees after the alleged agreement between IOS and Inmar; (ii) the Plaintiffs have sufficiently shown that the market for coupon processing made it such that the Defendants had a motive to enter a price fixing conspiracy; (iii) the Plaintiffs have shown there is evidence that Defendants may have acted contrary to their economic self-interest; and (iv) the Plaintiffs have offered sufficient evidence tending to exclude the possibility of independent action. Finally, Judge Osteen finds that the Plaintiffs have offered sufficient evidence to establish that genuine issues of material fact exist as to whether the Defendants violated Section 1 of the Sherman Act. The Plaintiffs have come forward with specific facts showing that there was an agreement between Inmar and IOS to fix prices, which created an unreasonable restraint on trade. Therefore, the Defendants' motion for summary judgment is denied. III. Conclusion For the foregoing reasons, Judge Osteen denied the Defendants' Motion for Summary Judgment. A full-text copy of the Court's March 18, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/4cf6f6bn from Leagle.com. JP MORGAN: Court Refuses to Certify Rule 23 Class in Nypl Suit -------------------------------------------------------------- In the case, JOHN NYPL, et al., Plaintiffs, v. JP MORGAN CHASE & Co., et al., Defendants, Case No. 15 Civ. 9300 (LGS) (S.D.N.Y.), Judge Lorna G. Schofield of the U.S. District Court for the Southern District of New York issued an Opinion and Order: 1. denying the Plaintiffs' motion for Rule 23 class certification; 2. granting in part and denying in part the Defendants' motion to exclude the report and testimony of the Plaintiffs' expert, Carl S. Saba; and 3. denying the Plaintiffs' motion to exclude the rebuttal report and testimony of the Defendants' expert, Bruce A. Strombom. I. Background The case concerns the impact of an alleged conspiracy among banks to fix prices in the foreign exchange ("FX") market on consumers' purchases of foreign currency with U.S. Dollars within the United States. The Plaintiffs, a group of individuals and businesses, allege that they purchased foreign currency from Defendants Bank of America, N.A., Bank of America Corporation, Barclays Capital, Inc., Barclays PLC, Citibank, N.A., Citicorp, Citigroup, Inc., HSBC Bank (USA), N.A., HSBC North American Holdings Inc., JP Morgan Chase & Co., JPMorgan Chase Bank, N.A., Royal Bank of Scotland, plc, and UBS AG in the consumer retail market at manipulated rates. The Plaintiffs allege that the Defendants conspired to manipulate certain benchmark exchange rates that determined the retail prices they paid for foreign currency. They base this allegation on plea agreements and government orders involving certain Defendants. Those plea agreements and the Plaintiffs' allegations focus on two benchmarks: The WMR London closing fix ("the WMR fix") and the European Central Bank fix (the "ECB fix"). The Defendants have presented uncontroverted evidence that they did not calculate retail exchange rates for consumers, such as the Plaintiffs, based on the WMR and ECB fix benchmarks. Instead, each Defendant's rate was calculated by, or using data from, a third-party. The Plaintiffs' claims in the action are limited to transactions "involving foreign currency purchased with U.S. Dollars and physically received at the Defendants' retail branches within the United States." Their claims do not include "wire transfers" or "credit, debit and ATM card" transactions. II. Discussion The Plaintiffs seek to certify a nationwide class of "consumers and businesses in the United States who directly purchased supracompetitive foreign currency at Benchmark exchange rates from Defendants and their co-conspirators for their own end use" from Jan. 1, 2007, to Dec. 31, 2013. A. Daubert Motions The Plaintiffs and the Defendants have each submitted an expert report in support of their respective positions on whether the putative class should be certified. In sum, the Plaintiffs' expert opines that causation and damages can be proved on a class-wide basis, thereby supporting their argument that common issues predominate as required for class certification under Rule 23(b)(3). The Defendants' expert critiques the Plaintiffs' expert and opines that damages and the related issue of injury-in-fact cannot be proved on a class-wide basis. Both the Plaintiffs and the Defendants have filed a Daubert motion to exclude the opinions of the other's expert. 1. Plaintiffs' Expert Carl S. Saba The Defendants' motion to exclude the opinions of the Plaintiffs' expert witness Carl S. Saba is granted in part and denied in part. Saba offers two opinions in support of class certification. First, Mr. Saba offers a causation opinion based on regression analyses -- that the FX Spot Market price, which Defendants allegedly manipulated, closely correlates with, and directly impacted, the end-user prices that class members paid on any given day for foreign currency. This opinion is in support of the Plaintiff's argument that causation and injury can be proved on a class-wide basis. Because the regression analyses are based on data untethered to the facts of this case and Plaintiffs offer no basis to justify this shortcoming, the Saba report's regression analyses are not considered. Second, Mr. Saba opines that the aggregate amount of damages to class members can be determined on a class-wide basis by multiplying the overcharge Defendants caused by the volume of affected commerce. Because Mr. Saba's opinion is helpful in framing critical issues on this class certification motion -- namely whether there is a viable methodology for Plaintiffs to use common, class-wide proof to show injury-in-fact and damages -- his damages opinion is not excluded. That does not mean that his opinion is accepted as sufficient. 2. Defendants' Rebuttal Expert Dr. Bruce A. Strombom The Plaintiffs' motion to exclude the testimony of the Defendants' rebuttal expert witness Dr. Bruce A. Strombom is denied. Dr. Strombom offers two relevant opinions -- first, that Mr. Saba fails to establish that Plaintiff can use class-wide proof to show causation and injury. Second, Dr. Strombom challenges Mr. Saba's opinion that damages can be shown using class-wide proof for several reasons. One of these is that Mr. Saba "fails to account for netting and offsetting redemptions." Judge Schofield opines that the Plaintiffs' argument that the netting of damages is contrary to principles of antitrust law and that Dr. Strombom is not qualified for asserting otherwise is incorrect. That plaintiffs in an antitrust action may recover only for their net injury is a common-sense and well-established principle. The Plaintiffs' remaining arguments have no relation to Dr. Strombom's report, Rule 702 or the Daubert standard. Hence, the Plaintiffs' challenges to Dr. Strombom's opinions are without merit, and their motion to exclude his opinions is denied. B. Article III Standing The Defendants argue that none of the four named Plaintiffs have demonstrated Article III standing. Judge Schofield opines that named Plaintiffs Lisa McCarthy and Valarie Jolly have sufficiently shown for this stage of the litigation that they have Article III standing to assert the two remaining causes of action -- price fixing in violation of Section 1 of the Sherman Act and its California counterpart, the Cartwright Act. Because only one named plaintiff must have standing with respect to each claim, the standing of Plaintiffs Rubinsohn and Nypl is not addressed. The Court previously dismissed the California Unfair Competition Law claim because Nypl, the only Plaintiff to assert that claim, lacks standing to assert it. C. Class Certification The Plaintiffs seek to certify a class under Federal Rule of Civil Procedure 23(b)(3) of all consumers and businesses in the United States who directly purchased supracompetitive foreign currency at Benchmark exchange rates from Defendants and their co-conspirators for their own end use at least since Jan. 1, 2007, to Dec. 31, 2013. Judge Schofield denied class certification because the Plaintiffs have not shown that common questions will predominate over individual questions, and because the proposed class is a "fail-safe class." She finds that (i) the Plaintiffs cannot establish that class members were injured on any particular day without a day-by-day individualized analysis; (ii) the Plaintiffs offer no method of proving on a generalized basis who was or was not overcharged; (iii) the class the Plaintiffs propose is indeterminate not only as to the days on which trader-based manipulation occurred, but also the direction of manipulation on those days; (iv) the Plaintiffs have offered no basis for using common proof to calculate the net damages suffered by putative class member; and (v) the Plaintiff has offered no means to determine class membership based on common evidence or in some other administratively feasible way. III. Conclusion For the foregoing reasons, Judge Schofield denied the Plaintiffs' motion for Rule 23 class certification. She granted in part and denied in part the Defendants' Daubert motion. She denied the Plaintiffs' Daubert motion. The request for oral argument is denied as moot. The Clerk of Court is directed to close the motions at Dkt. Nos. 716, 731 and 745. A full-text copy of the Court's March 18, 2022 Opinion & Order is available at https://tinyurl.com/yckujmkh from Leagle.com. JUUL LABS: Bassett Unified Sues Over Deceptive E-Cigarette Ads -------------------------------------------------------------- BASSETT UNIFIED SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01956-WHO (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Bassett Unified School District is a unified school district with its offices located at 904 North Willow Avenue in La Puente, California. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Causes Youth E-Cigarette Crisis, Solana Beach Claims --------------------------------------------------------------- SOLANA BEACH SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01960 (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Solana Beach School District is a unified school district with its offices located at 309 North Rios Avenue in Solana Beach, California. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Causes Youth E-Cigarette Crisis, Teton School Suit Says ------------------------------------------------------------------ TETON SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01918 (N.D. Cal., March 25, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Teton School District is a unified school district with its offices located at 481 North Main Street in Driggs, Idaho. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: E-Cigarette Ads Target Youth, Alameda Unified Suit Says ------------------------------------------------------------------ ALAMEDA UNIFIED SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01958-WHO (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Alameda Unified School District is a unified school district with its offices located at 2060 Challenger Drive in Alameda, California. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: E-Cigarette Ads Target Youth, Marlington Local Suit Says ------------------------------------------------------------------- MARLINGTON LOCAL SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01915 (N.D. Cal., March 25, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Marlington Local School District is a unified school district with its offices located at 10320 Moulin Avenue in Alliance, Ohio. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Easton School Sues Over Deceptive E-Cigarette Ads ------------------------------------------------------------ EASTON SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01911 (N.D. Cal., March 25, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis. Easton School District is a unified school district with its offices located at 1893 Railroad Street in Easton, Washington. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Faces Bliss School Suit Over Youth's E-Cigarette Ads --------------------------------------------------------------- BLISS SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01919 (N.D. Cal., March 25, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis. Bliss School District is a unified school district with its offices located at 601 East Highway 30 in Bliss, Idaho. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Faces Clayton Suit Over Youth E-Cigarette Epidemic ------------------------------------------------------------- CLAYTON VALLEY CHARTER HIGH SCHOOL, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01966 (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Clayton Valley Charter High School is a unified school district with its offices located at 1101 Alberta Way in Concord, California. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Faces South Summit Suit Over Youth E-Cigarette Epidemic ------------------------------------------------------------------ SOUTH SUMMIT SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01909 (N.D. Cal., March 25, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. South Summit School District is a unified school district with its offices located at 285 East 400 South in Kamas, Utah. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Manton Consolidated Sues Over Youth's E-Cigarette Crisis ------------------------------------------------------------------- MANTON CONSOLIDATED SCHOOLS, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01964 (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Manton Consolidated Schools is a unified school district with its offices located at 105 5th Street in Manton, Michigan. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Markets E-Cigarette to Youth, Juab School Suit Claims ---------------------------------------------------------------- JUAB SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01910 (N.D. Cal., March 25, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis. Juab School District is a free public charter school with its offices located at 346 East 600 North in Nephi, Utah. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Markets E-Cigarette to Youth, Manchester Community Says ------------------------------------------------------------------ MANCHESTER COMMUNITY SCHOOLS, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01959-WHO (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Manchester Community Schools is a unified school district with its offices located at 710 East Main Street in Manchester, Michigan. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Menominee Area Sues Over Youth's E-Cigarette Addiction ----------------------------------------------------------------- MENOMINEE AREA PUBLIC SCHOOLS, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01965 (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Menominee Area Public Schools is a unified school district with its offices located at 1230 13th Street in Menominee, Michigan. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Minidoka School Sues Over Youth E-Cigarette Campaign --------------------------------------------------------------- MINIDOKA SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01917-WHO (N.D. Cal., March 25, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Minidoka School District is a unified school district with its offices located at 310 10th Street in Rupert, Idaho. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Ogdensburg City Sues Over E-Cigarette Crisis in N.Y. --------------------------------------------------------------- OGDENSBURG CITY SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01953 (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Ogdensburg City School District is a unified school district with its offices located at 1100 State Street in Ogdensburg, New York. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Promotes E-Cigarette Use Among Youth, Weber School Says ------------------------------------------------------------------ WEBER SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01962 (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Weber School District is a unified school district with its offices located at 5320 Adams Avenue Parkway in Ogden, Utah. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: River Valley Sues Over E-Cigarette's Risks to Youth -------------------------------------------------------------- RIVER VALLEY SCHOOL DISTRICT, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01952 (N.D. Cal., March 28, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. River Valley School District is a unified school district with its offices located at 15480 Three Oaks Road in Three Oaks, Michigan. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com JUUL LABS: Silver Consolidated Sues Over E-Cigarette Crisis in N.M. ------------------------------------------------------------------- SILVER CONSOLIDATED SCHOOLS, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-01913 (N.D. Cal., March 25, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Silver Consolidated Schools is a unified school district with its offices located at 2810 North Swan Street in Silver City, New Mexico. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com KELLER WILLIAMS: St. John Seeks Leave to File Confidential Info --------------------------------------------------------------- In the class action lawsuit captioned as DANNA ST JOHN AND LUIS PENUELA, individually and on behalf of all others similarly situated, v. KELLER WILLIAMS REALTY, INC., Case No. 6:19-cv-01347-PGB-DCI (M.D. Fla.), Plaintiff Danna St. John requests leave to file third parties' confidential information pursuant to Local Rule 1.11 and the parties' stipulated and signed confidentiality agreement. The third party declarations include extensive discussion of proprietary business information, including client lists. If made public, this information will provide competitors an unfair advantage and could harm the parties' relationships with their respective clients that have been publicly identified. "The likelihood of damage to the parties' relationships with their customers and unfair competition from their competitors if the information is made public is great. The information to be sealed is not related to "public officials or public concerns," and there is no "less onerous" alternative to sealing the information that will insure its contents remain confidential while allowing the Court to review the information to make decisions on the merits of the parties' other pending motions." Keller Williams is an American technology and international real estate franchise with headquarters in Austin, Texas. A copy of the Plaintiffs' motion dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3ITSyzO at no extra charge.[CC] The Plaintiffs are represented by: Avi R. Kaufman, Esq. Rachel E. Kaufman, Esq. KAUFMAN P.A. 237 South Dixie Highway, 4 th Floor Coral Gables, FL 33133 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com rachel@kaufmanpa.com - and - Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 S. Biscayne Blvd, 28th Floor Miami, FL 33131 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: law@stefancoleman.com KIRKLAND'S INC: Faces Miles Class Suit in California Court ----------------------------------------------------------- Kirkland's, Inc. disclosed in its Form 10-K Report for the fiscal year ended January 29, 2022, filed with the Securities and Exchange Commission on March 25, 2022, that the company was named as a defendant in a putative class action filed in May 2018 in the Superior Court of California captioned "Miles v. Kirkland's Stores, Inc." The case has been removed to United States District Court for the Central District of California. The complaint alleges, on behalf of Miles and all other hourly Kirkland's employees in California, various wage and hour violations and seeks unpaid wages, statutory and civil penalties, monetary damages and injunctive relief. Kirkland's denies the material allegations in the complaint and believes that its employment policies are generally compliant with California law. The court held a hearing on the class certification motion on January 14, 2022, and denied the plaintiff's motion to certify in its entirety. In addition, the court set a case management conference for April 15, 2022, at which time the Court will set trial and related dates. Kirkland's, Inc. is a retailer of home furnishings based in Tennessee. KIRKLAND'S INC: Gennock Receipt Dispute Ongoing in Pennsylvania --------------------------------------------------------------- Kirkland's, Inc. disclosed in its Form 10-K Report for the fiscal year ended January 29, 2022, filed with the Securities and Exchange Commission on March 25, 2022, that the company was named as a defendant in a putative class action filed in April 2017 in the United States District Court for the Western District of Pennsylvania captioned "Gennock v. Kirkland's, Inc." The complaint alleged that the company, in violation of federal law, published more than the last five digits of a credit or debit card number on customers' receipts and sought statutory and punitive damages and attorneys' fees and costs. On October 21, 2019, the District Court dismissed the matter and ruled that the plaintiffs did not have standing based on the Third Circuit's recent decision in "Kamal v. J. Crew Group, Inc." Following the dismissal in federal court, on October 25, 2019, the plaintiffs filed a Praecipe to Transfer the case to Pennsylvania state court, and on August 20, 2020, the court ruled that the plaintiffs have standing. On October 16, 2020, the Superior Court affirmed the trial court's ruling in an unpublished order. On December 29, 2021, the Pennsylvania Supreme Court granted the company's Petition for Allowance of Appeal and vacated the Superior Court's order. Specifically, the Supreme Court remanded the case to the Superior Court to provide its rationale for the denial of the company's Petition for Allowance to Appeal. Kirkland's, Inc. is a retailer of home furnishings based in Tennessee. LEXUS OF MANHATTAN: Watson Seeks to Certify TCPA Classes -------------------------------------------------------- In the class action lawsuit captioned as BRIAN WATSON, DANIEL SAMARGHITAN, ANNMARIE GREENE f/k/a ANNMARIE MOHAMMED, JOSE ESPINAL, LYMELL JACKSON, individually, and on behalf of all others similarly situated, v. LEXUS OF MANHATTAN, Case No. 1:20-cv-04572-LGS (S.D.N.Y.), the Plaintiffs ask the Court to enter order certifying the following Classes: -- Automatic Telephone Dialing System (ATDS) Class: "All Honda of Manhattan customers within the United States that were sent any text messages from Lexus of Manhattan, using the Zipwhip texting platform, stating "Can I text you regarding maintenance of your Honda vehicle" or a similar variant thereof, to non-business wireless telephone numbers, within four years of the filing of this action;" -- National Do Not Call Registry (NDNCR) Class: "All Honda of Manhattan customers within the United States that were sent two or more text messages from Lexus of Manhattan within a 12 month period, using the Zipwhip texting platform, stating "Can I text you regarding maintenance of your Honda vehicle" or a similar variant thereof, to non-business wireless telephone numbers, whose telephone numbers were registered on the National Do Not Call List more than thirty-two days before the first message was sent, within four years of the filing of this action;" and -- Internal Do Not Call (IDNC) Class: "All Honda of Manhattan customers within the United States that were sent any text messages from Lexus of Manhattan, using the Zipwhip texting platform, stating "Can I text you regarding maintenance of your Honda vehicle" or a similar variant thereof, to non-business wireless telephone numbers, while Lexus failed to institute procedures to maintain a list of persons who requested not to receive telemarketing calls, within four years of the filing of this action." The action arises from the Defendant's violation of the Telephone Consumer Protection Act ("TCPA"). The Plaintiffs filed an initial Complaint on June 18, 2020 alleging that the Defendant violated various provisions of the TCPA by sending text solicitations to customers of Honda of Manhattan. The Plaintiffs seek certification of a 23(b)(3) statutory damage class. The factual "core" of this action is the common, systematic and uniform conduct of the Defendant. Defendant uses an automated telephone dialing system to send unsolicited text messages to individuals like the Plaintiffs. Many of these individuals are on the Do Not Call Registry like the Plaintiffs. In other words, the claim is common, Defendant's actions are common, and the method of calculating penalties and damages will be common. Consequently, the commonality requirement of Rule 23(a)(3) is satisfied. Each of the Plaintiffs received these messages while Defendant did not maintain procedures concerning an internal Do Not Call database. Each of the Plaintiffs received these messages despite being registered on the Do Not Call database for more than 32 days. Plaintiffs and each Class Member's claims stem from the same alleged practices and course of conduct by the Defendant and are all based upon the same legal theories. Lexus of Manhattan sells and services LEXUS vehicles in the greater New York City area. A copy of the Plaintiffs' motion to certify class dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3IVr64W at no extra charge.[CC] The Plaintiff is represented by: Daniel Zemel, Esq. Elizabeth Apostola, Esq. ZEMEL LAW LLC 660 Broadway Paterson, New Jersey 07514 Telephone: (862) 227-3106 E-mail: dz@zemellawllc.com ea@zemellawllc.com LIDDLE & LIDDLE: Final OK of Class Settlement in Perchlak Sought ---------------------------------------------------------------- In the class action lawsuit captioned as Robert Perchlak, on behalf of himself and all others similarly situated, v. Liddle & Liddle, A Professional Corporation, Case No. 2:19-cv-09461-JFW-AFM (C.D. Cal.), the Parties ask the Court to enter an order granting final certification of the Class settlement purposes, as set forth in the Agreement, and final approval of the Agreement, pursuant to Rule 23 of the Federal Rules of Civil Procedure. After notifying the class members, the claims administrator received 47 claims: 46 timely and valid, and one untimely. If final approval is granted, eligible class members will receive a pro rata portion of $4,652.29 -- approximately $98.98-$101.13. No class member objected and none requested exclusion. The Court should approve the Plaintiff's award of $2,000 under the Agreement in recognition of his service to the class. The Agreement is fair, reasonable, and adequate, in light of the class recovering more than could be achieved through further litigation. The Defendant is a law firm that represents landlords in residential evictions, by sending three-day notices to pay rent or quit. The Defendant sent one such notice to Plaintiff on August 7, 2019. The Plaintiff alleges that Defendant violated 15 U.S.C. section 1692g(a)(2) because the Three Day Notice failed to effectively convey the name of the creditor to whom the alleged debt was owed, and Defendant failed to provide Plaintiff with the same in writing within five days thereafter. On July 16, 2021, the Court conditionally certified the Class and granted preliminary approval of the class settlement for claims under the Fair Debt Collection Practices Act ("FDCPA"). Any Class member wishing to submit a claim, object to the settlement, or opt out of the settlement, was required to do so on or before February 14, 2022. The Defendant has tendered $16,652.29 to Class Counsel, representing the amounts to be paid under the Agreement to Plaintiff, the Eligible Class Members, and JND Legal Administration ("JND") -- the class action claims administrator being used in this case. A copy of the Parties' motion dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3NEhPSu at no extra charge.[CC] The Plaintiff is represented by: Russell S. Thompson, IV, Esq. THOMPSON CONSUMER LAW GROUP, PC 11445 E Via Linda, Ste. 2 No. 492 Scottsdale, AZ 85259 Telephone: (602) 388-8898 Facsimile: (866) 317-2674 E-mail: rthompson@ThompsonConsumerLaw.com The Defendant is represented by: Vikram Sohal, Esq. NEMECEK & COLE 16255 Ventura Blvd, 300 Encino, CA 91436 Telephone: (818) 788-9500 Facsimile: (818) 501-0328 E-mail: vsohal@nemecek-cole.com LINDSAY ENTERTAINMENT: Loses Bid to Decertify Class in Tassy Suit ----------------------------------------------------------------- In the class action lawsuit captioned as GLORIA TASSY, individually & on behalf of all similarly situated, v. LINDSAY ENTERTAINMENT ENTERPRISES, INC., Case No. 3:16-cv-00077-RGJ-RSE (W.D. Ky.), the Hon. Judge Rebecca Grady Jennings entered an order: 1. denying the Defendant's motion to decertify class; 2. granting the Plaintiffs' motion for partial summary judgment as to whether they are considered employees under the Fair Labor Standards Act (FLSA); 3. granting the Plaintiffs' motion for partial summary judgment regarding the applicable statute of limitations under the FLSA; and 4. granting the Plaintiffs' motion for Partial Summary Judgment regarding liquidated damages under the FLSA. Lindsey is a private company financials. A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3tWrg7K at no extra charge.[CC] LOUISIANA: $100-Million Settlement in Flooding Class Suit Reached ----------------------------------------------------------------- Jeff Palermo at louisianaradionetwork.com reports that Louisiana is closing in on reaching a 100-million dollar settlement on a class-action lawsuit that dates back to 1983 when 1,200 home and business owners in Tangipahoa Parish sued the state over flooding caused by the construction of Interstate 12. "We've worked on this for several years, negotiating a resolution that we thought was reasonable and fair, we are not comfortable that we've reached that number and we are proposing to the Legislature that we satisfy this obligation that the state has and put this to rest," said Commissioner of Administration Jay Dardenne. The state already has 21-million dollars set aside to pay for the settlement and Dardenne says they need the Legislature to allocate 45-million dollars this year and another 35-million dollars next year to satisfy the settlement. "So there had been some piecemeal attempts to put a little money towards this settlement, but this is a comprehensive settlement that will satisfy the judgment and end it once and for all, but the Legislature will have to agree with this," said Dardenne. About a third of the 1,200 plaintiffs in the class action have died waiting for this lawsuit to be resolved. Dardenne says the money will go to their heirs. "A lot of these businesses have closed, a lot of folks are deceased but their heirs are going to be entitled to receive what the deceased individuals otherwise would have gotten, that will be a process and it will take some time and it will be involved," said Dardenne. [GN] MAPLEBEAR INC: Court Grants Arbitration Bid in Levine Class Suit ---------------------------------------------------------------- In the case, STEPHEN LEVINE, individually and on behalf of all others similarly situated, Plaintiff v. MAPLEBEAR, INC. (d/b/a INSTACART), Defendant, Civil Action No. 21-cv-11617-AK (D. Mass.), Judge Angel Kelley of the U.S. District Court for the Distrct of Massachusetts granted the Defendant's Motion to Compel Individual Arbitration and Stay the Action. I. Introduction Plaintiff Levine, a delivery driver who worked for Defendant Instacart in 2019 and 2020, brought the putative class action in Suffolk County Superior Court, alleging the Defendant has willfully misclassified its delivery drivers as independent contractors, rather than employees, in violation of Massachusetts law. The Plaintiff argues that the misclassification has deprived him of employee benefits, such as a minimum hourly wage, reimbursement for expenses incurred while working for the Defendant, and earned sick time. The Defendant timely removed the action and then filed a Motion to Compel Individual Arbitration and Stay the Action and a memorandum in support thereof. II. Background The Defendant provides on-demand grocery shopping and same-day grocery delivery services to customers via a mobile phone application and website. Customers use the Instacart platform to connect with full-service shoppers and delivery drivers engaged by the Defendant. These drivers shop for and deliver groceries and other items the customer orders from retailers. According to the Defendant, deliveries are primarily local. In 2021, drivers traveled an average of 7 miles for intrastate deliveries and 10.5 miles for interstate deliveries. Additionally, 99.8% of all Instacart driver deliveries in the United States have been entirely intrastate in the past three years. The Plaintiff worked as a driver for the Defendant from approximately July 2019 to July 2020. All drivers, including the Plaintiff, must review and sign an "Independent Contractor Agreement" when applying to be an Instacart driver. The Agreement contains an arbitration provision requiring drivers to arbitrate disputes with the Defendant on an individual basis, including disputes related to their classification as independent contractors. Applicants are able to sign the Agreement by applying a pre-populated signature to the signature box or by using a finger to sign in the signature box. The Plaintiff signed the Agreement on July 3, 2019. Drivers have a 30-day window to opt out of the arbitration provision by notifying Instacart in writing. The Plaintiff never opted out of the arbitration provision after signing the Agreement in July 2019. He then signed two updated versions of the Agreement, using the same process described above, in January and December 2020. Although the Plaintiff opted out of the arbitration provisions when he signed the updated 2020 Agreements, the 2020 Agreements informed drivers that "if they agreed to a previous arbitration agreement with Instacart and opt out of this Arbitration Provision, they remain bound by that prior arbitration agreement and must arbitrate any and all claims or disputes covered by that prior arbitration agreement, regardless of whether those claims or disputes arise after the date they execute this Agreement." The parties dispute the enforceability of the arbitration provision as it applies to the Plaintiff's claims. The Plaintiff alleges Defendant improperly classifies its drivers as independent contractors and consequently does not reimburse drivers for expenses incurred while working for Instacart, including vehicle maintenance, gas, insurance, and phone and data expenses. H ealso claims drivers are paid by the delivery and do not receive an hourly wage or paid sick time. The Defendant argues that these claims are governed by the Agreement, and the Plaintiff must arbitrate his claims on an individual basis. III. Discussion The Plaintiff contends that the arbitration provision is not enforceable, as he is a transportation worker exempt from arbitration under the Federal Arbitration Act ("FAA"), 9 U.S.C. Section 1, and Massachusetts law prohibits class action waivers as a matter of public policy. The FAA's Section 1 "transportation workers exemption" provides that the FAA "shall not apply 'to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.'" The Defendant argues that collateral estoppel bars the Plaintiff from litigating that issue here and, regardless, the Plaintiff is not subject to the transportation workers exemption. A. Collateral Estoppel Does Not Apply The Defendant points to Immediato v. Postmates, Inc., No. 20-cv-12308-RGS, 2021 WL 828381 (D. Mass. Mar. 4, 2021), to argue that collateral estoppel prevents the Plaintiff, who is also a named plaintiff in Immediato, from litigating whether the transportation workers exemption applies in the case. In particular, it claims the Plaintiff "actually litigated the issue of Section 1's application to workers who deliver food and other items from local retailers," and the Immediato court's resolution of this issue was "essential" and "sufficiently final" to have preclusive effect under Massachusetts law. The Plaintiff responds that collateral estoppel does not apply because Instacart and Postmates are separate parties and are not in privity with one another. He also contends that the facts at issue here and in Immediato are distinguishable. Judge Kelley says, the critical question is whether the issue in Immediato is identical to the issue in the case. She finds that the facts in the case and in Immediato are, admittedly, very similar. Postmates, like Instacart, uses an online and mobile platform to connect customers with drivers who deliver goods from a "variety of local merchants. The plaintiffs in Immediato, like the Plaintiff, signed arbitration agreements and later brought suit alleging they were improperly classified as independent contractors rather than employees. The court in Immediato found that the FAA's transportation workers exemption did not apply. Still, the issue in Immediato is not identical to the issue in the case. Contrary to the Defendant's assertion, Jduge Kelley finds that the issue is not simply "whether local delivery drivers of groceries and other retail goods qualify as transportation workers under Section 1 of the FAA." Rather, the issue in Immediato was whether Postmates drivers are subject to the transportation workers exemption such that the defendant there could compel arbitration. Postmates employees may complete more interstate trips, pick up different kinds of goods from a greater variety of merchants, and be bound by slightly different agreements than Instacart drivers. As such, whether the Plaintiff is subject to the FAA's transportation workers exemption as an Instacart driver -- as opposed to a Postmates driver -- presents a slightly different inquiry, and collateral estoppel does not apply. B. The Federal Arbitration Act's Transportation Workers Exemption Does Not Apply The Plaintiff contends that Instacart drivers are transportation workers engaged in interstate commerce, and he therefore is exempt from the FAA pursuant to Section 1 and cannot be compelled to arbitrate. The Defendant argues that Instacart drivers are not engaged in interstate commerce and therefore the transportation workers exemption does not apply. Judge Kelley holds that Instacart does not contract for or control the interstate journey of the goods that drivers deliver locally; rather, the suppliers, distributors, grocery stores, and merchants facilitate the interstate journey of the goods. Instacart drivers merely contract with customers as "part of the driver's normal local service" to take goods "from the finish of the goods' interstate journey" to the Instacart customer. Moreover, the "class of workers" -- Instacart drivers -- "as a whole is not engaged in interstate commerce at all." As such, Instacart drivers "are among a class of workers engaged primarily in local intrastate transportation, some of whom infrequently find themselves crossing state lines, and are thus fundamentally unlike seamen and railroad employees when it comes to their engagement in interstate commerce. To conclude the Plaintiff is a transportation worker engaged in interstate commerce would be too broad a reading of Section 1. C. The FAA Requires Plaintiff to Arbitrate His Claims on an Individual Basis The FAA provides that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." A party seeking to compel arbitration pursuant to the FAA usually must show that (1) a valid agreement to arbitrate exists; (2) the movant is entitled to invoke the arbitration clause; (3) the other party is bound by that clause; and (4) the claims asserted come within the clause's scope. Because the arbitration provision clearly and unmistakably delegates questions regarding the scope of the provision to the arbitrator, Judge Kelley need only determine whether a valid agreement to arbitrate exists as a matter of state law. She finds that the Plaintiff signed the agreement, thereby assenting to its terms and entering a binding and valid agreement. Because the Agreement provides that parties may bring claims against the other only in their individual capacities, and may not bring, pursue or act as a plaintiff, class representative, or class member in any purported class or collective proceeding or action other than on an individual basis, the Plaintiff may arbitrate only his individual claims. D. The Court Will Stay the Case and Will Not Grant Interlocutory Review The Plaintiff argues that the Court should certify its order granting the Motion for interlocutory review pursuant to 28 U.S.C. Section 1292(b) or, in the alternative, dismiss the action and thereby allow for immediate appeal. Neither action is necessary, Judge Kelley holds. She says, the case does not involve "a controlling question of law as to which there is substantial ground for difference of opinion," such that "immediate appeal from the order may materially advance the ultimate termination of the litigation." The First Circuit has clearly established a framework for examining issues of the type discussed in the case. Interlocutory review is therefore unnecessary. Further, the FAA provides that the Court "shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement." Judge Kelley therefore will not dismiss the action. III. Conclusion For the foregoing reasons, Judge Kelley granted the Defendant's Motion to Compel Individual Arbitration and Stay the Action. The Clerk will stay the case pending arbitration. A full-text copy of the Court's March 18, 2022 Memorandum & Order is available at https://tinyurl.com/5e2cemks from Leagle.com. MATTERPORT INC: Stemmelin Loses Bid for Class Certification ----------------------------------------------------------- In the class action lawsuit captioned as JOHN STEMMELIN v. MATTERPORT, INC., et al., Case No. 3:20-cv-04168-WHA (N.D. Cal.), the Hon. Judge William Alsup entered an order denying plaintiff's motion to certify a national class and an Illinois class of those who enrolled in defendants' 3D camera partner program. -- Illinois Class: "All persons in Illinois who purchased Matterport's Pro, Pro2, or 6 Pro2 Lite 3D Cameras and Matterport's "Cloud Service Plan," and became a Matterport Service Partner ("MSP") since December 2, 2016. -- National Class: "All persons in the United States who purchased Matterport's Pro, Pro2, or Pro2 Lite 3D Cameras and Matterport's "Cloud Service Plan," and became a Matterport Service Partner ("MSP") within the applicable limitations period." The Court says that the order did not rely on any of the material Stemmelin objected to, which he filed in contravention of Civil Local Rule 7-3. The objections are accordingly denied as moot. Matterport also filed its objections to Stemmelin's filings in support of his reply brief in contravention of Civil Local Rule 7-3. In addition, this order did not rely on any of the material cited in Matterport's objections to plaintiff's reply briefing and supporting documentation. That objection is also accordingly denied as moot. Stemmelin asserts claims pursuant to ICFA and BOSL on behalf of the Illinois class, and asserts the remaining, non-Illinois state-law claims on behalf of the national class. This order follows full briefing and oral argument (held telephonically due to the COVID-19 pandemic). Matterport markets 3D cameras that create 3D models of real-world places, which have many potential applications, including in connection with real estate sales." Supporting these cameras, Matterport also offers services such as software for three-dimensional image manipulation and cloud storage. The Plaintiff John Stemmelin of Illinois saw Matterport's ads for the MSP program around January 2017 and purchased his first camera in February. In May, he applied for the MSP program. After many hours learning to use the cameras and attempting to start his own 3D scanning business, Stemmelin had spent more than $22,000 but had little to show for it. Allegedly, behind Matterport's façade lurked several problems. Stemmelin lists several misrepresentations and omissions Matterport purportedly used to deceive consumers: (1) the Matterport 3D camera is easy to use, and it is easy to learn and perform 3D scanning; (2) Matterport will provide the training materials MSPs need to learn to operate the 3D camera and perform 3D scans; (3) the MSP program is a lucrative business opportunity and MSPs will recoup their initial investment within a matter of months; (4) Matterport will provide MSPs with pre-qualified local leads from businesses and individuals who are serious about purchasing 3D scanning services; and (5) Matterport will provide the tools and resources to 15 ensure the success of the MSP's business. Stemmelin brought this lawsuit in June 2020, alleging violations, among other claims, unfair and false advertising laws as well as numerous states' business opportunity laws on behalf of a putative class of the deceived. A November 2020 order granted defendants' motion to dismiss. A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3JUvB11 at no extra charge.[CC] MAXUM INDEMNITY: Consolidation of Henry and Gaudet Suits Denied --------------------------------------------------------------- In the case, BRANDON HENRY, JR., ET AL. v. MAXUM INDEMNITY COMPANY, ET AL. SECTION "D" (1), Civil Action No. 20-2995-WBV-JVM, No. c/w 20-2997-WBV-JVM., c/w 20-2998-WBV-JVM (E.D. La.), Judge Wendy B. Vitter of the U.S. District Court for the Eastern District of Louisiana denied the Motion to Consolidate Three Henry Lawsuits With the Gaudet Lawsuit, filed by Landmark American Insurance Co. and Capitol Specialty Insurance Corp. I. Background The consolidated matter arises from the BP Deepwater Horizon oil spill that occurred on April 20, 2010. Three separate lawsuits were filed regarding the alleged actions and inactions of certain attorneys and law firms while representing the interests of the plaintiffs in the Deepwater Horizon Economic and Property Damage Settlement Program (the "BP Settlement Program"), in which members of the Economic and Property Damages Settlement Class ("BP Class") made claims to be compensated for their subsistence losses caused by the BP oil spill. The Plaintiffs in each lawsuit allege that they were solicited by Howard L. Nations, APC, Howard L. Nations, Cindy L. Nations, The Nicks Law Firm, LLC, Shantrell Nicks, Rueb & Motta, APLC, The Rueb Law Firm, APLC, Joseph A. Motta, Attorney at Law, APLC, Joseph A. Motta, and Gregory D. Rueb (collectively, the "Attorney Defendants"), to file BP Subsistence Claims stemming from the BP oil spill. The Plaintiffs further allege that the Attorney Defendants filed a claim on behalf of each plaintiff, received a DHECC Incompleteness Notice, Denial Notice FWA Notice, or Appeal Denial regarding each Plaintiff's BP Subsistence Claim, submitted amended claim forms for each plaintiff that were patently incorrect, inaccurate, and false, and that, due to those actions, each plaintiff's BP Subsistence Claim was denied. As a result, the Plaintiffs sued the Attorney Defendants for breach of contract, legal malpractice, and fraud, and later named several professional liability insurers as additional defendants. The three cases were removed to the Court and consolidated at the request of the parties (the "Henry matter"). Landmark and Capitol Specialty, two of the professional liability insurers, filed the instant Motion, seeking to consolidate the case with Civil Action No. 19-10356, Deborah A. Gaudet, et al. v. Howard L. Nations, APC, et al. (the "Gaudet matter"), which is also pending before the Court. Landmark and Capitol Specialty assert that the Plaintiffs in the Henry and Gaudet matters have both sued the Attorney Defendants based on their alleged representation of the Plaintiffs in connection with their BP Subsistence Claims. Landmark and Capitol Specialty allege that the cases should be consolidated for discovery and trial purposes under Fed. R. Civ. P. 42 because: (1) the four lawsuits are all pending before this Court; (2) the four lawsuits involve plaintiffs who are making similar claims against the same Attorney Defendants; (3) consolidation will not result in or risk causing confusion or prejudice to the trier of fact; (4) confusion or prejudice will likely occur if the lawsuits are not consolidated; (5) the claims asserted in the four lawsuits arise out of the same or similar factual allegations; (6) there is a material risk of inconsistent adjudications if the common questions of law and facts relating to liability and damages are separately tried; (7) consolidation will conserve judicial resources and serve and promote the interests of judicial efficiency and economy; and (8) consolidating the four lawsuits should materially mitigate and reduce the parties' costs, expenses, and fees that would otherwise result if the two lawsuits proceed through the remainder of the discovery process and trial twice. They also assert that the Henry and Gaudet matters "involve interrelated factual issues on which a jury will need to be educated, and which will involve a significant overlap in witnesses" and exhibits. Relying upon the Court's ruling granting consolidation in Pride Centric Resources, Inc. v. LaPorte, Landmark and Capitol Specialty seem to suggest that the facts in the Henry and Gaudet matter are inextricably intertwined, such that consolidation would promote the interests of judicial efficiency and economy. The Plaintiffs oppose consolidation, asserting that while the cases are pending before the same Court and involve some common parties and basic facts, the risk of juror confusion greatly outweighs any benefit of consolidation. They point out that the Henry plaintiffs were excluded from the Gaudet matter, which was originally filed as a class action, because the Gaudet plaintiffs allege that their BP Subsistence Claims were denied because they were either: (1) never filed; (2) untimely filed; or (3) filed without the required documentation. In contrast, the Henry plaintiffs allege that their BP Subsistence Claims were filed and denied post-review, due to distinct acts of malpractice and contractual breaches during post-review consideration. Distinguishing the Pride case relied upon by Landmark and Capitol Specialty, the Plaintiffs claim that the Henry and Gaudet matters do not rely upon each other's facts, and that a finding of malpractice for a Gaudet plaintiff has no bearing on any Henry plaintiff, and vice versa. The Plaintiffs further assert that consolidating the two cases could cause juror confusion because the jury would be required to hear evidence on the entire prereview process for BP Subsistence Claims as to the Gaudet plaintiffs, as well as evidence on the entire post-review process for the Henry plaintiffs. They maintain that while there is some overlap of basic facts, the Gaudet trial will focus on the pre-review phase because that is where the alleged malpractice occurred, while the Henry trial will focus on the post-review phase because that is where the alleged malpractice occurred in that case. Finally, the Plaintiffs assert that consolidation for discovery purposes would likewise be inappropriate because the cases are in different stages of preparedness for trial. According to them, there has been extensive discovery in the Gaudet matter and only limited discovery in the Henry matter. As a result, they argue that the Motion to Consolidate should be denied. The Nations Defendants also oppose consolidation, asserting that it may lead to jury confusion and, more importantly, that Capitol Specialty seeks consolidation to avoid providing coverage, including a defense and indemnity in the Henry matter to its insureds, the Nations Defendants. They explain that their policy with Capitol Specialty provides $3 million of coverage for the policy period of Jan. 25, 2020 to Jan. 25, 2021, and provides coverage "on a claims made and reported basis and applies only to claims first made against the insured during the policy period." They claim that Capitol Specialty's apparent plan is to seek and obtain consolidation and then assert that the very act of consolidation is evidence that it need not provide any coverage for the Henry matter. The Nations Defendants argue that extensive differences between the Gaudet and Henry matters unmistakably show that coverage for the Henry matter rests with Capitol Specialty. Like Plaintiffs, the Nations Defendants point out that the Gaudet plaintiffs contend that their BP Subsistence Claims were not considered because they were never filed, filed too late, or filed with insufficient documentation, whereas the Henry plaintiffs assert that their BP Subsistence Claims were considered by the DHECC, but were denied based upon the way the Attorney Defendants handled their claims and appeals. While the Nations Defendants do not oppose consolidation for discovery purposes, they oppose consolidation for trial purposes due to the risk of jury confusion. In response to the Plaintiffs' Opposition brief, Landmark and Capitol Specialty assert that the Plaintiffs admitted that the evidence is cumulative and will overlap in the Henry and Gaudet matters, and contend that any risk of jury confusion can be addressed with jury instructions and a special verdict form. Then, for the first time, they contest the Court's decision to try the Henry matter in several sets or flights on the issue of liability and damages, asserting that conducting three or four flights of separate trials would be costly, time constraining, and result in duplicative litigation and proceedings. Citing Seventh Amendment concerns regarding similar facts and issues being adjudicated by different juries in separate trials, Landmark and Capitol Specialty contend that these constitutional concerns and the interests of judicial efficiency and economy will be best served by consolidating the Henry and Gaudet matters and conducting a single trial. Alternatively, if the Court denies consolidation, Landmark and Capitol Specialty ask the Court to consider scheduling the Gaudet matter for trial before the first set of Henry plaintiffs, since the Gaudet matter was filed over a year before the Henry matter and "no material discovery has been undertaken" in the Henry matter. In response to the Nations Defendants' Opposition brief, and their assertion that the Henry and Gaudet matters are factually distinct based upon when the alleged legal malpractice occurred in each case, Landmark and Capitol Specialty contend that, "This single factor does not preclude consolidation." Landmark and Capitol Specialty assert that every Gaudet and Henry plaintiff has alleged that: (1) they suffered economic damages resulting from the BP oil spill; (2) they were solicited by the Attorney Defendants based on those damages; and (3) they subsequently began the claims-filing process with the Attorney Defendants through the DHECC to recover for those damages. They maintain that, under the Court's precedent, "consolidation is clearly favored." They contend that this is apparent by "the complete lack of analysis or supporting caselaw in the Nations Defendants' Opposition, which simply concludes that the similarities between the Gaudet lawsuit and the three Henry lawsuits do not meet the criteria for consolidation outlined by the Fifth Circuit." Landmark and Capitol Specialty do not address the Nations Defendants' allegation that Capitol Specialty's arguments for consolidation are pretextual and that it seeks consolidation in an attempt to avoid providing coverage to the Nations Defendants in the Henry matter. II. Analysis While there are some overlapping facts between the Henry and Gaudet matters, Judge Vitter, exercising broad discretion, finds that consolidation is not appropriate under Fed. R. Civ. P. 42(a). While the two actions are pending before the Court and involve many of the same defendants, she agrees with the Plaintiffs and the Nations Defendants that there is a significant risk of jury confusion if the cases are consolidated, based upon the distinct facts of each case. Judge Vitter finds that presenting the jury with information regarding the pre-review process for the Gaudet plaintiffs and the post-review process for the Henry plaintiffs is likely to cause juror confusion, and that consolidation will not reduce the time or cost of trying the cases separately. She further finds that the parties appear to agree that the Henry and Gaudet matters are at different stages of preparedness for trial, asserting that extensive discovery has taken place in the Gaudet matter, but that there has been only "limited discovery" or "no material discovery" in the Henry matter. Finally, Judge Vitter notes that Landmark and Capitol Specialty failed to address in their Reply brief the Nations Defendants' allegation that Capitol Specialty's assertions that consolidation would promote judicial efficiency and economy are pretextual and that Capitol Specialty seeks consolidation to avoid providing coverage to its insureds, the Nations Defendants, in the Henry matter. She is troubled by both the allegations of the Nations Defendants and the silence of Capitol Specialty on this point. Nonetheless, Judge Vitter need not address these allegations in the Order, as she finds that a majority of the five factors considered by courts in the Circuit in determining whether to grant consolidation weigh against consolidation in the case. III. Conclusion For the foregoing reasons, Judge Vitter denied the Motion to Consolidate Three Henry Lawsuits With the Gaudet Lawsuit. A full-text copy of the Court's March 18, 2022 Order & Reasons is available at https://tinyurl.com/yjcvppe2 from Leagle.com. MAYFIELD CONSUMER: Johnson Class Suit Removed to W.D. Kentucky -------------------------------------------------------------- The case styled ELIJAH JOHNSON, WILLIAM ALIFF, MATTHEW BARBER, MARY SMITH, HALEY CONDER, MCKAYLA EMERY, MATTHEW RILEE VALIANT, and JOHN LAWSON, individually and on behalf of all others similarly situated v. MAYFIELD CONSUMER PRODUCTS, LLC, Case No. 22-CI-00040, was removed from the Circuit Court of Grant County, Kentucky, to the U.S. District Court for the Western District of Kentucky on March 25, 2022. The Clerk of Court for the Western District of Kentucky assigned Case No. 5:22-cv-00044-TBR to the proceeding. The case arises from the Plaintiffs' physical, mental and/or emotional injuries and/or death as a result of the December 10, 2021 tornado striking and demolishing the Defendant's place of business. Mayfield Consumer Products, LLC is a consumer products manufacturer based in Mayfield, Kentucky. [BN] The Defendant is represented by: Russell B. Morgan, Esq. Edmund S. Sauer, Esq. BRADLEY ARANT BOULT CUMMINGS LLP Roundabout Plaza 1600 Division Street, Suite 700 Nashville, TN 37203 Telephone: (615) 252-2311 Facsimile: (615) 252-6311 E-mail: rmorgan@bradley.com esauer@bradley.com - and – Megan U'Sellis, Esq. FISHER & PHILLIPS LLP 220 West Main Street, Suite 1700 Louisville, KY 40202 Telephone: (502) 561-3963 E-mail: musellis@fisherphillips.com MCDONALD'S CORP: Food Contains Unsafe Chemicals, Clark Suit Says ---------------------------------------------------------------- LARRY CLARK, individually and on behalf of all others similarly situated, Plaintiff v. MCDONALD'S CORPORATION, Defendant, Case 3:22-cv-00628-NJR (S.D. Ill., Mar. 28, 2022) alleges that certain food products of the Defendant contain unsafe per- and polyfluoroalkyl substances (PFAS). The Plaintiff alleges in the complaint that each time an American buys a Big Mac, they are exposed to high levels of PFAS. PFAS are a group of synthetic chemicals known to be harmful to both the environment and humans. PFAS are known as "forever chemicals" because the carbon-fluorine bonds in PFAS are extremely strong and thus are not appreciably degraded under environmental conditions. The continued use of PFAS is, by their nature, unsustainable, because it will necessarily lead to a greater concentration of PFAS in the environment. In some case, PFAS will survive over 1000 years. The Defendant allegedly represents that the products are safe and effective for their intended use, and reasonable consumers expect that products marketed and sold to be ingested will not contain dangerous, synthetic chemicals like PFAS. Contrary to the Defendant's representations, the products are not safe because they contain PFAS, which have a negative impact on the health of humans. McDonald'S Corporation franchises and operates fast-food restaurants in the global restaurant industry. The Company's restaurants serves a variety of value-priced menu products in countries around the world. [BN] The Plaintiff is represented by: Steffan T. Keeton, Esq. The KEETON FIRM LLC 100 S Commons, Ste. 102 Pittsburgh PA 15212 Telephone: (888) 412-5291 Email: stkeeton@keetonfirm.com MEDLINE INDUSTRIES: Ponce Labor Suit Removed to C.D. California --------------------------------------------------------------- The case styled MARIBEL PONCE, individually and on behalf of all others similarly situated v. MEDLINE INDUSTRIES INC.; MEDLINE INDUSTRIES, LP; and DOES 1 through 100, inclusive, Case No. CVRI2104267, was removed from the Superior Court of the State of California for the County of Riverside to the U.S. District Court for the Central District of California on March 25, 2022. The Clerk of Court for the Central District of California assigned Case No. 5:22-cv-00531-AB-MRW 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 regular and overtime wages, failure to provide meal periods or compensation in lieu thereof, failure to provide rest periods or compensation in lieu thereof, failure to pay wages of terminated or resigned employees, knowing and intentional failure to comply with itemized employee wage statement provisions, unfair competition, and violation of Labor Board Section 2699. Medline Industries, LP, formerly known as Medline Industries, Inc., is an American healthcare company, with its principal place of business in Northfield, Illinois. [BN] The Defendant is represented by: Steven A. Groode, Esq. Jannine E. Kranz, Esq. LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067-3107 Telephone: (310) 553-0308 Facsimile: (800) 715-1330 E-mail: sgroode@littler.com jkranz@littler.com METROPOLITAN TOWER: Hearing on Class Cert Bid Reset to June 15 -------------------------------------------------------------- In the class action lawsuit captioned as Pitt v. Metropolitan Tower Life Insurance Company, Case No. 3:20-cv-00694 (S.D. Cal.), the Hon. Judge Jinsook Ohta entered an order resetting the hearing on the pending motion to certify class, motion for summary judgment, and motion for partial summary judgment for June 15, 2022. Metropolitan Tower operates as an insurance company. The nature of suit states Contract -- Insurance.[CC] NATIONWIDE MUTUAL: Court Denies Bid to Dismiss Sweeney ERISA Suit ----------------------------------------------------------------- In the case, RYAN SWEENEY, ET AL., Plaintiffs v. NATIONWIDE MUTUAL INSURANCE COMPANY, ET AL., Defendants, Case No. 2:20-CV-1569 (S.D. Ohio), Judge James L. Graham of the U.S. District Court for the Southern District of Ohio, Eastern Division: (i) granted in part the Plaintiffs' motion to exclude; and (ii) denied the Defendants' motion to dismiss. I. Background Plaintiffs Ryan Sweeney and Bryan Marshall bring the putative class action asserting violations of the Employment Retirement Security Act of 1974, as amended, ("ERISA"), 29 U.S.C. 1001, et seq. At the center of the Plaintiffs' lawsuit is the Nationwide Savings Plan. The Plan is a tax-qualified defined contribution pension plan available to eligible employees of Nationwide Mutual and subsidiaries of Nationwide Mutual with U.S.-based employees. The Plan is sponsored by Nationwide Mutual Insurance and managed by the Benefits Investment Committee ("BIC"). The BIC is comprised of employees of Nationwide and its affiliates (collectively "the BIC Defendants"). The Plan is intended to encourage saving and provide retirement income for Nationwide employees, former employees, and their beneficiaries. Plan participants do so by making tax-deferred contributions which are matched by their employer. This money is allocated to a Plan participant's individual account. Plan participants have some control over how the assets in their individual accounts are invested. They can choose among the fund options selected by the BIC. The most popular Plan investment option is the Guaranteed Investment Fund. The Guaranteed Investment Fund is a benefit-responsive group annuity contract between the Plan and Nationwide Life Insurance Co. Nationwide Life is owned by Nationwide Financial Services, Inc., an indirect subsidiary of Nationwide Mutual. Contributions to the Guaranteed Investment Fund are transferred to and maintained in Nationwide Life's general account. Nationwide Life invests the assets in its general account. The Plan is credited a percentage of its investment in the Guaranteed Investment Fund as the assumed growth on investment. This percentage is called a crediting rate. The crediting rate is set annually by Nationwide Mutual through Nationwide Life. Nationwide Life provides custodial, actuarial, investment, and accounting services to the Plan related to the Guaranteed Investment Fund. In return, Nationwide Life compensates itself by reducing the credit otherwise owed to the Plan. The amount of compensation is not dictated by contract. Instead, Nationwide Mutual determines the amount of compensation it will earn. Nationwide Life is also compensated for the opportunity cost of having to set aside money to meet its contracted-for guaranteed obligations. This opportunity cost charge is 10.33%. The Defendants hired Callan, an investment consulting firm, to examine the Guaranteed Investment Fund. Callan noted that "fees are an important component of the analysis of any investment product" but that "our analysis has no line of sight to the spread of the Guaranteed Fund." Callan concluded that "the Plan could eliminate the Guaranteed Investment Fund." The Plaintiffs filed the present putative class action on Jan. 26, 2020. They then filed an amended complaint on Oct. 5, 2020. The putative class consists of the participants and beneficiaries of the Plan from March 26, 2014 through the date of judgment. The Plaintiffs' amended complaint alleges that four provisions of ERISA were violated: (1) the fiduciary duties listed in 29 U.S.C. Section 1104 (Claim I); (2) the prohibited transactions listed in 29 U.S.C. Section 1106(a) (Claim II); (3) the prohibited transactions listed in 29 U.S.C. Section 1106(b) (Claim III); and (4) the prohibition of assets of the plan inuring to the benefit of the employer in 29 U.S.C. Section 1103(c) (Claim IV). As for Claim I, the Plaintiffs allege that the BIC Defendants breached fiduciary duties by: (i) maintaining the Guaranteed Investment Fund on unreasonable terms considering the Guaranteed Investment] Fund's performance relative to those realized by other investors in Nationwide Life's general account; Nationwide Mutual's obligation and failure to pay expenses associated with the Guaranteed Investment Fund; and their inherent conflict; (ii) failing to seek reimbursement of expenses from Nationwide Mutual associated with the Guaranteed Investment Fund; and (iii) permitting prohibited transfers of Plan assets to Nationwide Life, from which Nationwide Mutual profited. The Plaintiffs allege that Nationwide Mutual breached its fiduciary duties by: (i) failing to reimburse the expenses associated with the Guaranteed Investment Fund as required by the Plan Document; (ii) dealing with the Savings on terms that were beneficial to Nationwide Mutual at the expense of employees' retirement savings; and (iii) earning compensation that was prohibited by ERISA's prohibition against self-dealing. As for Claim II, the Plaintiffs allege that the BIC Defendants, Nationwide Life, and Nationwide Mutual engaged in transactions between the Plan and a party in interest in violation of 29 U.S.C. Section 1106(a) by causing the Plan to transfer Plan assets to Nationwide Life's general account, by causing the Plan to benefit Nationwide Life by permitting Nationwide Life to use Plan assets to earn compensation and support its business operations, by causing the Plan to continue, authorize, and renew the service agreement with Nationwide Life, and by causing the Plan to transfer assets to Nationwide Life that were used to compensate Nationwide Mutual and support Nationwide Mutual's business. As for Claim III, the Plaintiffs allege that the BIC defendants, Nationwide Life, and Nationwide Mutual engaged in transactions between the Plan and a fiduciary in violation of 29 U.S.C. Section 1106(b) by making decisions on the investment of Plan assets in self-interested ways and Nationwide Mutual's receipt of compensation through Nationwide Life in connection with the Guaranteed Investment Fund. As for Claim IV, the Plaintiffs allege that the BIC, Nationwide Life, and Nationwide Mutual had plan assets inure to the benefit of Nationwide Life and Nationwide Mutual, employers of employees in the Plan, in violation of 29 U.S.C. Section 1103(c). The Defendants filed a motion to dismiss all of the Plaintiffs' claims on Nov. 5, 2020. Attached to their motion to dismiss are declarations of Dustin M. Koenig and John M. Towarnicky. The declaration of Dustin M. Koenig contained a copy of the group annuity contract at issue in this case, a copy of the enrollment guide provided to employees eligible to participate in the Plan, copies of annual disclosures, and a copy of an excerpt from Nationwide Life's Annual Statement filed for the year ended Dec. 31, 2019. On Dec. 11, 2020, the Plaintiffs filed a response to Defendants' motion to dismiss and a motion to exclude. In their motion to exclude, the Plaintiffs request the Court to exclude from consideration all exhibits attached to the Defendants' motion to dismiss except for the copy of the group annuity contract. The Defendants filed a reply to their motion to dismiss and a response to the Plaintiffs' motion to exclude on Jan. 8, 2021. They withdrew Towarnicky's declaration and, in their reply brief, attached the Callan Report, disclosures provided by Nationwide Life to the Plan, and the Plan as amended and restated on Jan. 1, 2019. The reply brief also directed the Court's attention to a website called MissionSquare Plus Fund. The Plaintiffs filed their reply to the Motion to Exclude on Jan. 22, 2021, requesting that the Court also excludes the exhibits attached to the Defendants' reply brief. II. Discussion A. Motion to Exclude The Defendants want the Court to consider seven documents: (1) the group annuity contract; (2) the enrollment guide provided to employees eligible to participate in the Plan; (3) Annual disclosures provided by Nationwide Life to the Plan pursuant to 29 C.F.R. Section 2550.401c-1(c)(4) for the periods of May 1, 2013 to April 30, 2020; (4) an excerpt from Nationwide Life's statutory annual statement filed with state departments of insurance for the year ended December 31, 2019; (5) the Callan report; (6) documents related to initial and separate disclosures provided by Nationwide Life to the Plan pursuant to 29 C.F.R. Section 2550.401c-1(c)(3), and (7) the Plan as amended and restated on Jan. 1, 2019. The Plaintiffs additionally ask the Court to decline to consider the Callan Report and the Plan as amended and restated Jan. 1, 2019 because the Defendants presented those documents in their reply brief to their motion to dismiss. Judge Graham will consider the group annuity contract, the Callan report, the Plan as amended and restated Jan. 1, 2019, and the annual statement filed with the state departments of insurance in deciding the Defendants' motion to dismiss. B. Motion to Dismiss The Defendants move for dismissal on three grounds: (1) the alleged violations involving plan assets are meritless because the assets in Nationwide Life's general fund were not plan assets; (2) the Plaintiffs inadequately pleaded a claim of wrongful and excessive compensation; and (3) the defense in 29 U.S.C. Section 1108(b)(5) defeats the alleged violations of 29 U.S.C. Section 1106(a) and (b). 1. The Existence of Plan Assets The Defendants first argue that several of the Plaintiffs' claims fail because the assets paid by the Plan and placed into Nationwide Life's general account, as well as the proceeds earned on those assets, do not constitute plan assets for purposes of ERISA. More specifically, they move for dismissal of the portions of Claim I which allege breaches of the duty of prudence and loyalty as well as the portions which allege self-dealing; the prohibited transactions claim in Claim III; and the anti-inurement claim in Claim IV. The safe harbor applies only if certain conditions are met. First, the insurer must have made certain initial disclosures. Second, the insurer must make certain annual disclosures. Third, where the Transition Policy is issued by an issuer wholly owned by the employer that maintains the employee benefit plan, the statutory immunity from the prohibited transactions rules set forth in 29 U.S.C. 1108(b)(5) must apply. Finally, the policy must have certain termination procedures. The Defendants attempt to show that they satisfy these conditions by attaching documents to their motion to dismiss and reply brief. Judge Graham opines that it is inappropriate for the Court to consider the disclosures at this stage. He cannot now determine whether the Defendants are entitled to the safe harbor and does not reach the issue of what, if any, impact the safe harbor has on the Plaintiffs' claims. 2. Pleading Adequacy of Fiduciary Duty Claim The Defendants moved to dismiss parts of Claim I, asserting that the complaint fails to adequately plead a breach of fiduciary duty related to excessive compensation under 29 U.S.C. Section 1104(a)(1)(A)-(B). The three specific allegations within Claim I on which Defendants move are: (1) that the BIC breached its fiduciary duties by "permitting prohibited transfers of Plan assets to Nationwide Life, from which Nationwide profited;" (2) that Nationwide Mutual breached its fiduciary duties by "dealing with the Plan on terms that were beneficial to Nationwide Mutual at the expense of employees' retirement savings;" and (3) that Nationwide Mutual breached its fiduciary duties by "earning compensation that was prohibited by ERISA's prohibition against self-dealing." Two issues are implicated by the Defendants' argument: (1) the construction of Claim I and (2) the pleading requirements for Claim I. Judge Graham is persuaded by the Plaintiffs' interpretation of its amended complaint. The at-issue assertions in Claim I are general allegations that the BIC and Nationwide Life breached their fiduciary duties by making decisions in a self-interested manner. Therefore, Judge Graham construes the at-issue portions of Claim I as asserting (1) that BIC permitted transfers of Plan assets to Nationwide Life with the intention of profiting Nationwide Mutual; (2) that Nationwide Mutual's dealings with the Plan were intended to benefit Nationwide Mutual; and (3) that Nationwide Mutual earned compensation which resulted from its self-interested actions. Moreover, Judge Graham holds that the Defendants correctly assert that where a claim of disloyalty is premised on a claim of imprudence, the disloyalty claim fails if the imprudence claim is inadequately pled. But the at-issue portions of Claim I center around allegations of self-dealing, not necessarily allegations that Defendants acted otherwise imprudently. The Plaintiffs assert that the structure of control was such that the BIC and Nationwide Life, the two entities which created the Guaranteed Investment Fund, are under the influence of Nationwide Mutual. The Plaintiffs believe that this structure resulted in the Defendants making self-interested decisions, such as setting crediting rates lower than those offered to unaffiliated plans. The Plaintiffs further support their belief by claiming that when the BIC hired Callan, an investment consultant, to provide fee benchmarking for the Guaranteed Investment Fund, they failed to provide the consultant all of the necessary information. This is enough to adequately plead a breach of fiduciary duty claim. C. Pleading Adequacy of Prohibited Transactions Claims The Plaintiffs assert in Claims II and III that the Defendants engaged in transactions prohibited by 29 U.S.C. Section 1106(a) and (b). The Defendants posit that the Plaintiffs' allegations are insufficient because the affirmative defense in 29 U.S.C. Section 1108(b)(5) applies and provides an exemption to those prohibited transactions. In other words, they take the position that because an affirmative defense exists, the Plaintiffs had the duty of pleading adequate facts to show that the affirmative defense does not apply. The Defendants are wrong, Judge Graham opines. Courts may grant motions to dismiss "where the undisputed facts conclusively establish an affirmative defense as a matter of law." 29 U.S.C. Section 1108(b)(5) requires, among other things, that the plan pay no more than adequate consideration to the insurer. The Plaintiffs' amended complaint does not assert facts which conclusively establish that the Plan pays no more than adequate consideration. Therefore, the Defendants have not shown that Claims II and III fail as a matter of law. III. Conclusion For these reasons, Judge Graham granted in part the Plaintiffs' motion to exclude and denied the Defendants' motion to dismiss. A full-text copy of the Court's March 18, 2022 Opinion & Order is available at https://tinyurl.com/efchu5kz from Leagle.com. NEW HAMPSHIRE: Ct. Approves Discovery Plan in G.K. Suit ------------------------------------------------------- In the class action lawsuit captioned as G.K., by their next friend, Katherine Cooper, et al., v. Christopher Sununu, Governor of New Hampshire, et al., Case No. 1:21-cv-00004-PB (D.N.H.), the Hon. Judge Andrea K. Johnstone entered an order approving the parties proposed discovery plan, submitted on January 25, 2022, with the following changes: -- Close of Fact Discovery: December 15, 2022 -- Deadline for Motion for Class December 15, 2022 Certification: -- Substitution of Proposed Class November 1, 2022 Representatives: The Court said, "Depositions Each side shall take a maximum of 15 depositions, exclusive of depositions of third parties, experts, and depositions conducted pursuant to Fed. R. Civ. P. 30(b)(6). The plaintiffs may also serve successive 30(b)(6) notices regarding discrete topics, but no such notices can be served later than 30 days before the close of discovery. The parties shall meet and confer regarding the duration of any deposition taken pursuant to Rule 30(b)(6)." A copy of the Court's order dated March 11, 2022 is available from PacerMonitor.com at https://bit.ly/3uExatt at no extra charge.[CC] NEW YORK: Bid to Decertify Class Tossed in Betances Suit -------------------------------------------------------- In the class action lawsuit captioned as PAUL BETANCES, et al., v. BRIAN FISCHER, in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS), and in his individual capacity, et al., Case No. 1:11-cv-03200-RWL (S.D.N.Y.), the Hon. Judge Robert W. Lehrburger entered an order denying the Defendants' motion to decertify the class at this juncture. The Court has considered the Defendants' arguments and finds them to be without merit. Within fourteen days of entry of this decision, the parties shall file a joint letter setting forth (1) a schedule for completing notice to the class, (2) a schedule for filing any outstanding pre-trial materials required by this Court's individual rules, (3) a description of any remaining pre-trial in limine issues that have not been resolved, and (4) dates during the third quarter of 2022 when the parties are not available for trial. The District Court previously certified the class and found Defendants personally liable; the Second Circuit affirmed and remanded the case to determine the appropriate remedies. The parties consented to jurisdiction before this Court for the remainder of proceedings. Paul Betances, Lloyd A. Barnes, and Gabriel Velez -- individually and on behalf of others similarly situated -- bring this class action against Brian Fischer, Anthony J. Annucci, and Terence Tracy for violations of their civil rights. A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3JToVA7 at no extra charge.[CC] NEXTGEN LEADS: Faces Weiss Suit Over Telephone Marketing Practices ------------------------------------------------------------------ MELINDA WEISS, individually, and on behalf of all others similarly situated v. NEXTGEN LEADS, LLC, a California company, Case No. 3:22-cv-00404-DMS-AGS (S.D. Cal., March 28, 2022) alleges that NextGen Leads made unsolicited telemarketing calls and sent a text message advertisement to Plaintiff's residential telephone number that is listed on the National Do Not Call Registry. NextGen leads generates potential customers for its insurance company clients. To generate leads, NextGen Leads makes telemarketing calls to consumers who have never had a relationship with them and who have never consented to receive their calls, says the suit.[BN] The Plaintiff is represented by: Rachel E. Kaufman, Esq. KAUFMAN P.A. 237 South Dixie Highway, 4th Floor Coral Gables, FL 33133 Telephone: (305) 469-5881 E-mail: rachel@kaufmanpa.com NIELSEN HOLDINGS: Court Junks as Moot Gordon Bid to Certify Class ----------------------------------------------------------------- In the class action lawsuit captioned as Gordon v. Nielsen Holdings PLC, et al., Case No. 1:18-cv-07143 (S.D.N.Y.), the Hon. Judge Jesse M. Furman entered an order denying as moot motion to certify class. The motion is denied as moot in light of motion to approve / Notice of Plaintiffs' Motion for Preliminary Approval of Class Action Settlement. The nature of suit states Other Statutes – Securities/Commodities/Exchange. Nielsen is an American information, data and market measurement firm. Nielsen operates in over 100 countries and employs approximately 44,000 people worldwide.[CC] NIKE INC: Seeks to File Under Seal Portions of Class Cert. Bid -------------------------------------------------------------- In the class action lawsuit captioned as KELLY CAHILL, SARA JOHNSTON, LINDSAY ELIZABETH, and HEATHER HENDER, individually and on behalf of similarly situated, v. NIKE, INC., an Oregon Corporation, Case No. 3:18-cv-01477-JR (D. Or.), Nike moves the Court for an order to file under seal limited unredacted portions of Plaintiffs' motion for Class Certification and select documents filed in support thereof pursuant to Section 4 of the Protective Order on file in this case. Nike seeks to redact portions of the Motion and supporting exhibits to the extent they reveal the names of former and current Nike employees that appear in the context of internal complaints as the complainants, subjects or witnesses. The parties have reached an agreement on this topic except with regard to three former employees who were the subjects of complaints and allegations regarding sexual harassment and gender discrimination. The proposed redactions in question are narrowly tailored to prevent the unauthorized dissemination of sensitive personal information. Good cause exists to permit Nike to file the following categories of information under seal: (1) the names of any individuals (complainants, subjects and witnesses) named in the context of allegations regarding sexual harassment or gender discrimination at Nike; (2) briefing and declarations filed in relation to Plaintiffs' motion to compel Nike's privileged pay equity, promotion and compensation analyses that reflect confidential legal strategy; and (3) Nike's confidential and proprietary compensation information, including Nike's compensation structure as well as pay shortfall conclusions derived from Attorneys' Eyes Only ("AEO") compensation data of current and former Nike employees who are not parties to the litigation. Mindful of the requirement that parties should take a judicious approach to filing under seal, Nike has gone to great lengths to ensure that the overwhelming majority of Plaintiffs' Motion and supporting evidence is un-redacted and open to the public. The limited material Nike seeks to seal is content Nike produced to Plaintiffs in discovery, which contains confidential, proprietary business information and/or confidential, private information about non-parties to this litigation. Nike does not share the content it seeks to seal externally and only disseminates it internally where there exists a business need-to-know. Indeed, Nike restricts access and keeps this information confidential because, if publicly disclosed, it would impinge upon non-parties' privacy rights or present competitors an unfair business advantage regarding Nike's compensation structure, practices and data. Keeping this information confidential through sealing is the only way to avoid these harms. Nike's narrowly tailored motion to seal certain confidential materials, therefore, meets the applicable legal standard and should be granted. Nike and Plaintiffs had several meet and confer communications regarding proposed redactions to Plaintiffs' Motion and supporting documents, including a phone call on January 18, 2022, and several emails exchanged between January 11, 2022 and February 22, 2022. Unable to reach agreement, on February 23, 2022, Plaintiffs requested, in writing, to unseal their class certification filings pursuant to Paragraph 4 of the Protective Order. Nike and Plaintiffs then continued to meet and confer via email and telephone about Nike's proposed redactions in hopes of avoiding unnecessary motion practice. A copy of the Defendant's motion dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3NDon3s at no extra charge.[CC] The Defendant is represented by: Amy Joseph Pedersen, Esq. STOEL RIVES LLP 760 SW Ninth Avenue, Suite 300 Portland, OR 97205 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 E-mail: amy.joseph.pedersen@stoel.com - and - Daniel Prince, Esq. Zach P. Hutton, Esq. Felicia A. Davis, Esq. Laura Zabele, Esq. PAUL HASTINGS LLP 515 South Flower Street, 25th Floor Los Angeles, CA 90071 Telephone: (213) 683-6000 Facsimile: (213) 627-0705 E-mail: danielprince@paulhastings.com zachhutton@paulhastings.com feliciadavis@paulhastings.com laurazabele@paulhastings.com NORMANDY, MO: Davis Seeks Certification of Class Action ------------------------------------------------------- In the class action lawsuit captioned as ANGELA DAVIS; QUINTON M. THOMAS; ROELIF EARL CARTER; and MEREDITH WALKER, v. CITY OF NORMANDY, Case No. 4:18-cv-01514-RLW (E.D. Mo.), the Plaintiffs ask the Court to enter an order certifying the lawsuit as a class action, for settlement purposes only, pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Plaintiffs and Defendant have negotiated a Settlement Agreement which will fully resolve Plaintiffs' claims under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution. The Agreement negotiated between the parties provides that, in order to facilitate a full and final settlement of Plaintiffs' claims, the parties shall seek to have this lawsuit certified as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. The parties agree that three Settlement Classes should be defined as follows: Jailed Class: All persons who, between September 10, 2013, and May 12, 2021, were ARRESTED or INCARCERATED by or on behalf of Defendant City of Normandy (as identified by the Plaintiffs' Expert Witness Dr. William Rogers or the Claims Administrator during the course of the Litigation); Paid Fines Class: All persons who, between September 10, 2013, and May 12, 2021, PAID a fine, fee, cost, surcharge, or other monetary sum to Defendant City of Normandy; and Warrant Class: All persons who were the subject of an ARREST WARRANT issued between September 10, 2013, and May 12, 2021, by the Defendant City of Normandy. For settlement purposes only, the Parties agree that this action meets the requirements of Rule 23(a)(1)-(4), Rule 23(b)(2), and Rule 23(b)(3) of the Federal Rules of Civil Procedure. A copy of the Parties motion to certify class dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3uG2Oqq at no extra charge.[CC] The Plaintiff is represented by: John M. Waldron, Esq. Blake A. Strode, Esq. John M. Waldron, Esq. Maureen G.V. Hanlon, Esq. ARCHCITY DEFENDERS, INC. 440 North 4th Street, Ste. 390 Saint Louis, MO 63102 Telephone: (855) 724-2489 Facsimile: (314) 925-1307 E-mail: jwaldron@archcitydefenders.org - and - S. Zachary Fayne, Esq. ARNOLD & PORTER KAYE SCHOLER LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111 Telephone: (415) 471-3114 Facsimile: (415) 471-3400 E-mail: Zachary.fayne@arnoldporter.com The Attorneys for the Defendant, are: Jason S. Retter, Esq. Blake D. Hill, Esq. Michelle Stallings, Esq. HELLMICH, HILL & RETTER, LLC 1049 N. Clay Ave. Kirkwood, MO 63122 Telephone: (314) 646-1110 E-mail: jason@hellmichhillretter.com NOVARTIS: Direct Purchasers Seek to Certify Class ------------------------------------------------- In the class action lawsuit captioned as re Novartis and Par Antitrust Litigation, Case No. 1:18-cv-04361-AKH (S.D.N.Y.), the Direct Purchaser Class Plaintiffs (DPPs) move the Court pursuant to the Federal Rules of Civil Procedure for an order: 1. certifying the following class (the Direct Purchaser Class): "All persons or entities in the United States, including its territories, possessions, and the Commonwealth of Puerto Rico, who purchased Exforge directly from Novartis, or who purchased a generic version of Exforge directly from Par, at any time during the Class Period from September 21, 2012, until March 30, 2015;" Excluded from the Class are Defendants and their officers, directors, management and employees, predecessors, subsidiaries and affiliates, and all federal governmental entities. 2. appointing Drogueria Betances, LLC, Rochester Drug Co- Operative, Inc., FWK Holdings, LLC, and KPH Healthcare Services, Inc. a/k/a Kinney Drugs, Inc. as representatives of the Direct Purchaser Class; and 3. confirmign Garwin Gerstein & Fisher LLP as Lead Counsel for the Direct Purchaser Class; The DPPs include Drogueria Betances, LLC, Rochester Drug Co-Operative, Inc., FWK Holdings, LLC, and KPH Healthcare Services, Inc. a/k/a Kinney Drugs, Inc. A copy of the Court's order Plaintiffs' motion to certify class dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3IVxI39 at no extra charge.[CC] The Attorneys for Plaintiff Rochester Drug Co-Operative, Inc. and the Direct Purchaser Class, are: Kristyn Fields, Esq. Peter Kohn, Esq. Joseph T. Lukens, Esq. FARUQI & FARUQI, LLP 685 Third Ave., Floor 26 New York, NY 10017 Telephone: (212) 983-9330 Facsimile: (212) 983-9331 E-mail: kfields@faruqilaw.com pkohn@faruqilaw.com jlukens@faruqilaw.com - and - David F. Sorensen, Esq. Caitlin G. Coslett, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: dsorensen@bm.net ccoslett@bm.net The Attorneys for the Plaintiff FWK Holdings, LLC and the Direct Purchaser Class, are: Robert N. Kaplan Matthew P. McCahill Ralph E. Labaton KAPLAN FOX & KILSHEIMER, LLP 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 E-mail: rkaplan@kaplanfox.com mmccahill@kaplanfox.com rlabaton@kaplanfox.com - and - Joseph M. Vanek, Esq. David P. Germaine, Esq. SPERLING & SLATER, P.C. 55 W. Monroe, Suite 3200 Chicago, IL 60603 Telephone: (312) 641-3200 Facsimile: (312) 641-6492 E-mail: jvanek@sperling-law.com dgermaine@sperling-law. The Attorneys for Plaintiff KPH Healthcare Services, Inc., a/k/a Kinney Drugs, Inc. and the Direct Purchaser Class, are: Michael L. Roberts, Esq. ROBERTS LAW FIRM, P.A. 20 Rahling Circle Little Rock, AR 72223 Telephone: (501) 821-5575 Facsimile: (501) 821-4474 E-mail:L mikeroberts@robertslawfirm.us The Attorneys for Plaintiff Drogueria Betances, LLC Interim Lead Counsel for the Direct Purchaser Class, are: Bruce E. Gerstein, Esq. Joseph Opper, Esq. Dan Litvin, Esq. Deborah A. Elman, Esq. GARWIN GERSTEIN & FISHER LLP 88 Pine Street, 10th Floor New York, NY 10005 Telephone: (212) 398-0055 Facsimile: (212) 764-6620 E-mail: bgerstein@garwingerstein.com jopper@garwingerstein.com dlitvin@garwingerstein.com delman@garwingerstein.com The Attorneys for Plaintiff Drogueria Betances, LLC and the Direct Purchaser Class, are: David Raphael, Esq. Erin Leger, Esq. Susan Segura, Esq. SMITH SEGURA RAPHAEL & LEGER, LLP 221 Ansley Boulevard Alexandria, LA 71303 Telephone: (318) 445-4480 Facsimile: (318) 487-1741 E-mail: draphael@ssrllp.com eleger@ssrllp.com ssegura@ssrllp.com - and - Stuart Des Roches, Esq. Andrew Kelly, Esq. Dan Chiorean, Esq. ODOM & DES ROCHES Poydras Center 650 Poydras Street, Suite 2020 New Orleans, LA 70130 Telephone: (504) 522-0077 Facsimile: (504) 522-0078 E-mail: stuart@odrlaw.com akelly@odrlaw.com dchiorean@odrlaw.com - and - Russell A. Chorush,Esq. HEIM PAYNE & CHORUSH LLP 1111 Bagby, Suite 2100 Houston, TX 77002 Telephone: (713) 221-2000 Facsimile: (713) 221-2021 E-mail: rchorush@hpcllp.com mjones@hpcllp.com NUVE MIGUEL: Must File Opposition to Class Cert Bid by May 2 ------------------------------------------------------------ In the class action lawsuit captioned as Margarito Hernandez Santos, on behalf of himself, FLSA Collective Plaintiffs, and the Class v. Nuve Miguel Corp. d/b/a Key Foods and Luis H. Urgiles, Case No. 1:21-cv-01335-JPO-RWL (S.D.N.Y.), the Hon. Judge Robert W. Lehrburger entered an order that: -- the Defendants' opposition to May 2, 2022 the Plaintiff's motion for class certification shall be filed by; -- The Defendants' reply shall be May 16, 2022 filed by: His Deputy Clerk will reach out to the parties to schedule a settlement conference, Judge Lehrburger says. A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3NDZTaf at no extra charge.[CC] The Defendants are represented by: Joseph Dimitrov, Esq. LITCHFIELD CAVO LLP 420 Lexington Avenue, Suite 2104 New York, NY 10170 Telephone: (212) 818-0590 Facsimile: (212) 434-0105 NYC HARLEM: Initial Approval of Settlement in Medina Sought ----------------------------------------------------------- In the class action lawsuit captioned as MARISOL MEDINA, individually and on behalf of all others similarly situated, v. NYC HARLEM FOODS INC, BRONX 163 FOODS INC., BRONX MARKET FOODS INC, NYC 143 FOODS INC, NYC 96 FOODS INC, NYC 89 FOODS INC, NYC PARK FOODS INC, NYC 125 FOODS INC, NYC 159 FOODS INC, NYC 155 FOODS INC, SUNNYSIDE BK QSR INC, NYC 116 BK QSR INC, NYC 116 FOODS INC, NYC 121 FOODS INC, NYC 114 FOODS INC, BRONX PROSPECT FOODS INC., NYC 145 FOODS INC., NYC LENOX FOODS INC., NYC 178 FOODS INC., BRONX 138 FOODS INC., RV EASTCHESTER FOODS INC., NYC 148 FOODS INC., NYC LEXINGTON FOODS INC., NYC 161 FOODS INC., BRONX 170 FOODS INC., ANDHRA FOODS INC., SOMYA FOODS, INC., RVN FOODS INC., and SRINIVASA RAO TUMMALAPENTA, individually, Case No. 1:21-cv-01321-VSB (S.D.N.Y.), the Plaintiff asks the Court to enter an order granting preliminary approval of the proposed settlement, certification of the settlement class, appointment of Plaintiffs' Counsel as class counsel, and approval of Plaintiff's notice of proposed settlement of class action lawsuit, together with such other and further relief as the Court deems necessary and proper. The Defendants purchase and resell produce and other grocery items. A copy of the Plaintiff's motion to certify class dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/36IzI1J at no extra charge.[CC] The Plaintiff is represented by: James Bouklas, Esq. 357 Veterans Memorial Highway Commack, NY 11725 Telephone: (516) 742-4949 E-mail: james@bglawny.com OAK PARK: Ricker Seeks Unpaid OT, Regular Wages Under FLSA, WWPCL ----------------------------------------------------------------- NAUSIA RICKER, on behalf of herself and all others similarly situated v. OAK PARK PLACE OF OAK CREEK, LLC and OAK PARK PLACE AL 1 HOLDING, LLC, Case No. 2:22-cv-00383 (E.D. Wisc., March 28, 2022) is a collective and class action brought pursuant to the Fair Labor Standards Act of 1938 (FLSA), and Wisconsin's Wage Payment and Collection Laws (WWPCL) for unpaid overtime compensation, unpaid straight time (regular) and/or agreed upon wages, liquidated damages, costs, attorneys' fees, declaratory and/or injunctive relief, and/or any such other relief the Court may deem appropriate. The Defendants allegedly operated an unlawful compensation system that deprived and failed to compensate the Plaintiff and all other current and former hourly-paid, non-exempt employees for all hours worked and work performed each workweek, including at an overtime rate of pay for each hour worked in excess of 40 hours in a workweek, by shaving time (via electronic timeclock rounding) from Plaintiff's and all other hourly-paid, non-exempt employees' weekly timesheets for pre-shift and post-shift hours worked and/or work performed, to the detriment of said employees and to the benefit of Defendants, in violation of the FLSA and WWPCL. In approximately May 2020, the Defendants hired the Plaintiff as an hourly-paid, non-employee in the position of Med Passer / Personal Care Worker. During the entirety of Plaintiff's employment with Defendants, Defendants compensated the Plaintiff on an hourly basis and/or with an hourly rate of pay. During the entirety of Plaintiff's employment with Defendants, Plaintiff was a non-exempt employee for purposes of the FLSA and WWPCL. The Plaintiff brings this action on behalf of herself and all other similarly situated employees as authorized under the FLSA, 29 U.S.C. section 216(b). The similarly situated employees include: "All hourly-paid, non-exempt employees employed by the Defendants within the three years immediately preceding the filing of this Complaint who have not been compensated for all hours worked in excess of 40 hours in a workweek at the proper, correct, and/or lawful overtime rate of pay." Oak Park Place Oak Creek is a senior care facility in Oak Creek, Wisconsin.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 E-Mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com OBI SEAFOODS: Bid to Extend Deadlines Tossed without Prejudice -------------------------------------------------------------- In the class action lawsuit captioned as MARIJA PAUNOVIC and DUSAN PAUNOVIC, individually and on behalf of all others similarly situated, v. OBI SEAFOODS LLC and OCEAN BEAUTY SEAFOODS LLC, Case No. 2:21-cv-00884-MJP (W.D. Wash.), the Hon. Judge Marsha J. Pechman entered an order denying without prejudice Parties' stipulated motion to extend deadlines: The Parties ask the Court to extend the deadline for Plaintiffs' motion for class certification to a date 60 days after the Court rules on their pending motion for conditional certification. The Parties also ask that all related deadlines and the trial date be similarly extended. As good cause, the Parties suggest that they are currently disputing the "degree and scope" of additional class-related discovery and that more time is needed to resolve the dispute and complete discovery before the class certification motion is filed. The Court finds this explanation insufficient to justify a 60-day extension of the motion for class certification deadline or any other case deadlines or the trial date. The Parties have not identified what specific discovery is needed, what the dispute between the parties is, why the dispute cannot be quickly resolved, why the discovery cannot be obtained before the class certification motion is due, or how much more time is needed to obtain the discovery sought. No discovery related motion has been filed, and the Court is without sufficient record to consider what extension, if any, might be appropriate, and what impact that may have on the existing case schedule. On this thin record, the Court denies the Stipulated Motion without prejudice to a renewed motion that provides far greater clarity than what has been provided. The Court separately notes that it has taken the Motion for Conditional Certification under advisement and intends to issue its order within 30 days of the Motion's noting date of February 25, 2022. The clerk is ordered to provide copies of this order to all counsel. OBI Seafoods was created by merging the Alaska salmon and Gulf of Alaska groundfish operations. A copy of the Court's order dated March 11, 2022 is available from PacerMonitor.com at https://bit.ly/3JQ1uHU at no extra charge.[CC] OBI SEAFOODS: Deadline to File Class Status Bid Extended to May 24 ------------------------------------------------------------------ In the class action lawsuit captioned as MARIJA PAUNOVIC and DUSAN PAUNOVIC, individually and on behalf of all others similarly situated, v. OBI SEAFOODS LLC, an Alaska corporation, and OCEAN BEAUTY SEAFOODS LLC, an Alaska corporation, Case No. 2:21-cv-00884-MJP (W.D. Wash.), the Parties agree and stipulate, subject to the Court's approval, to an extension as follows: Current New Deadline Deadline -- Deadline for Plaintiffs March 25, 2022 May 24, 2022 to File their Motion for Class Certification: -- Deadline for Defendants' April 22, 2022 June 21, 2022 Response to the Motion for Class Certification: -- Deadline for Plaintiffs' May 6, 2022 July 5, 2022 Reply to the Motion for Class Certification: -- Deadline for Discovery June 8, 2022 July 15, 2022 Related Motions: -- Deadline for Discovery: July 8, 2022 Aug. 31, 2022 A copy of the Parties' motion dated March 16, 2022 is available from PacerMonitor.com at https://bit.ly/3vbSk2v at no extra charge.[CC] The Plaintiffs are represented by: Toby J. Marshall, Esq. Ryan Tack-Hooper, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: tmarshall@terrellmarshall.com rtack-hooper@terrellmarshall.com - and - Tamara Kenworthey, Esq. KENWORTHEY LAW 137 Fifth Avenue, 9th Floor New York, NY 10010 Telephone: (718) 344-5746 E-mail: tkenworthey@kenwortheylaw.com The Defendants are represented by: Renea I. Saade, Esq. Douglas E. Smith, Esq. LITTLER MENDELSON P.C. 500 L Street, Suite 201 Anchorage, AL 99501 Telephone: (907) 561-1214 Facsimile: (907) 561-1215 E-mail: rsaade@littler.com desmith@littler.com OMEGA HEALTHCARE: Setzer, Holtzman Seek to Certify Class -------------------------------------------------------- In the class action lawsuit re: Omega Healthcare Investors, Inc. Securities Litigation, Case No. 1:17-cv-08983-NRB (S.D.N.Y.), the Lead Plaintiff Royce Setzer and Additional Plaintiff Earl Holtzman ask the Court to enter an order: 1. Certifying this Action as a class action for a class consisting of: "All purchasers of Omega Healthcare Investors, Inc. securities between May 3, 2017, through October 31, 2017, both dates inclusive, excluding Defendants, officers and directors of Omega, members of their immediate families and their legal representatives, heirs, successors or assigns, and any entity in which Defendants have or had a controlling interest;" 2. Appointing Plaintiffs as Class Representatives for the Class; 3. Appointing The Rosen Law Firm, P.A. as Class Counsel; and 4. Granting such other and further relief as the Court deems necessary and proper. Omega Healthcare is a real estate investment trust (REIT). A copy of the Plaintiff's motion dated March 16, 2022 is available from PacerMonitor.com at https://bit.ly/3K6PYIp at no extra charge.[CC] The Lead Plaintiff is represented by: Jacob A. Goldberg, Esq. Gonen Haklay, Esq. Leah Heifetz-Li, Esq. THE ROSEN LAW FIRM, P.A. 101 Greenwood Avenue, Suite 440 Jenkintown, PA 19046 Telephone: (215) 600-2817 Facsimile: (212) 202-3827 E-mail: jgoldberg@rosenlegal.com ghaklay@rosenlegal.com lheifetz@rosenlegal.com - and - Phillip Kim, Esq. Laurence M. Rosen, Esq. 275 Madison Avenue, 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: lrosen@rosenlegal.com pkim@rosenlegal.com OPHTHOTECH CORP: Settlement in Micholle Suit Gets Initial Nod ------------------------------------------------------------- In the class action lawsuit captioned as FRANK MICHOLLE, individually and on behalf of all others similarly situated, and SHEET METAL WORKERS' PENSION PLAN OF SOUTHERN CALIFORNIA, ARIZONA AND NEVADA, v. OPHTHOTECH CORPORATION, DAVID R. GUYER, AND SAMIR PATEL, Case No. 1:17-cv-01758-VSB (S.D.N.Y.), the Hon. Judge Vernon S. Broderick entered an order granting the Plaintiffs' unopposed motion for preliminary approval of class action settlement, certification of the class, and approval of notice to the class. The Court said, "The parties submitted a proposed order setting forth the settlement procedure and schedule; however, because this motion has been pending for a while, the schedule in the proposed order has become out of date. Accordingly, the parties shall file an updated proposed order on or before March 25, 2022. Further, the previous unopposed motion for class certification, is hereby denied without prejudice to be refiled should I later deny final approval to the settlement. The Clerk of Court is respectfully directed to close the open motions on the docket." -- Settlement Class: "all Persons who purchased or acquired Ophthotech common stock during the [period between March 2, 2015 through December 12, 2016, inclusive];" Excluded from the Class are: (i) Defendants; (ii) members of the immediate family of each Defendant; (iii) any person who was an officer or director of Ophthotech during the Class Period; (iv) any entity in which any Defendant has or had a controlling interest; (v) any corporate parent and/or affiliate of Ophthotech; and (vi) the legal representatives, heirs, successors-in-interest, or assigns of any such excluded Person; Also excluded from the Class is any Person who would otherwise be a Member of the Class but who validly and timely requests exclusion in accordance with the requirements set by the Court. Ophthotech, a biopharmaceutical company, develops novel therapeutics to treat diseases of the back of the eye, including age-related macular degeneration (AMD). A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3tRXTDy at no extra charge.[CC] The Plaintiffs are represented by: David Avi Rosenfeld, Esq. Christopher Thomas Gilroy, Esq. Ellen Anne Gusikoff Stewart, Esq. Erin Whitney Boardman, Esq. Philip Thomas Merenda, III, Esq. Ashley M. Price, Esq. Darryl J. Alvarado, Esq. ROBBINS GELLER RUDMAN & DOWD LLP - and - Shannon Lee Hopkins, Esq. Levi & Korsinsky, LLP Stamford, CT The Defendants are represented by: Fraser Lee Hunter, Jr., Esq. Jeremy Todd Adler, Esq. Michael G. Bongiorno, Esq. WILMER CUTLER PICKERING HALE & DORR LLP New York, NY PERKIOMEN VALLEY: Must File Bid to Dismiss Suit by April 12 ----------------------------------------------------------- In the class action lawsuit captioned as DOE 1, et al., v. PERKIOMEN VALLEY SCHOOL DISTRICT, et al., Case No. 2:22-cv-00287-WB (E.D. Pa.), the Hon. Judge Wendy Beetlestone entered an scheduling order as follows: 1. The Defendants shall file a Motion April 12, 2022 to Dismiss on or before: 2. The Plaintiffs shall file their April 30, 2022 response to the Defendants' Motion to Dismiss on or before: 3. All fact discovery shall be Sept. 14, 2022 completed on or before: 4. Any expert reports are due Oct. 14, 2022 no later than: 5. Any discovery depositions of Dec. 22, 2022 expert witnesses shall be completed by 6. If the parties do not plan Jan. 20, 2023 on filing Daubert motions, they shall so report to the Court (Chambers) on or before: 7. Any Daubert motions shall be Jan. 20, 2023 filed and served on or before: 8. Any responses to Daubert motions Feb. 3, 2023 shall be filed and served on or before: 9. Any reply briefs regarding Feb. 10, 2023. Daubert motions shall be filed and served on or before: 10. Any motions for summary judgment April 10, 2023 shall be filed and served on or before: 11. Responses to motions for summary May 2, 2023 judgment shall be filed and served on or before: 12. The Plaintiffs shall file and July 10, 2023 serve their opening class certification brief on: The Plaintiffs include are JOHN DOE 1 and JANE DOE 1, in their own Capacity and as parents of CHILD DOE 1, JOHN DOE 2 and JANE DOE 2, in their own Capacity as parents of CHILD DOE 2, JANE DOE 3, in her own capacity and as parent of CHILD DOE 3 on on behalf of similarly situated. The Defendants include PERKIOMEN VALLEY SCHOOL DISTRICT, a Pennsylvania governmental entity, JASON SAYLOR, MATTHEW DORR, ROWAN KEENAN, DON FOUNTAIN, KIM MARES, REENA KOLAR, SARAH EVANS-BROCKETT, LAURA WHITE and TAMMY CAMPLI, all Individual elected offices sued in their official capacity as members of the BOARD OF SCHOOL DIRECTORS OF THE PERKIOMEN VALLEY SCHOOL DISTRICT, a Pennsylvania elected legislative body. The Perkiomen Valley School District is a school district based in central Montgomery County, Pennsylvania. A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/372k2WQ at no extra charge.[CC] RENT-A-DAUGHTER: Anderson Seeks Conditional Status of Collective ---------------------------------------------------------------- In the class action lawsuit captioned as KIM ANDERSON, on behalf of herself and others similarly situated, v. RENT-A-DAUGHTER CORP., et al., Case No. 1:22-cv-00143-BM (N.D. Ohio), the Plaintiff asks the Court to enter an order pursuant to the Fair Labor Standards Act (FLSA): (a) Conditionally certifying this case as a collective action under the FLSA on behalf of Representative Plaintiff and others similarly situated; (b) Directing that notice be sent by United States mail, email, and text message to the following: "All current and former non-exempt caregivers employed by Defendants from January 27, 2019, to the present who worked 40 or more hours in any workweek during this period of time;" (c) Approving the proposed Notice and Consent to Join form; (d) Directing Defendants to provide within 14 days an electronic spreadsheet in Microsoft Excel or comma- delimited format a Roster of all individuals that fit the definition above that includes their full names, dates of employment, last known home addresses, personal email addresses, and phone numbers; (e) Directing Defendants to provide a Declaration that the produced Roster fully complies with the Court’s Order; and (f) Directing that duplicate copies of the Notice may be sent in the event new, updated, or corrected mailing addresses, email addresses, or phone numbers are found for any potential opt-in plaintiff. Rent-a-Daughter provides Home Health Care services. A copy of the Plaintiff's motion to certify class dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3NEhJdA at no extra charge.[CC] The Plaintiff is represented by: Robi J. Baishnab, Esq. NILGES DRAHER LLC 1360 E. 9 th St., Suite 808 Cleveland, OH 44114 Telephone: (216) 230-2955 Facsimile: (330) 754-1430 E-mail: rbaishnab@ohlaborlaw.com - and - Hans A. Nilges, Esq. 7034 Braucher Street, N.W., Suite B North Canton, OH 44720 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 E-mail: hans@ohlaborlaw.com RIVIAN AUTOMOTIVE: Bernstein Liebhard Reminds of May 6 Deadline --------------------------------------------------------------- Bernstein Liebhard LLP, a nationally acclaimed investor rights law firm, reminds investors of the deadline to file a lead plaintiff motion in a securities class action lawsuit that has been filed on behalf of investors who purchased or acquired the common stock of Rivian Automotive, Inc. ("Rivian" or the "Company") between November 10, 2021 and March 10, 2022, inclusive, including those investors who acquired Rivian securities pursuant to and/or traceable to the Company's November 10, 2021 Initial Public Offering ("IPO" or the "Offering") of 153 million Rivian shares at $78 per share (the "Class Period"). The lawsuit was filed in the United States District Court for the Central District of California and alleges violations of the Securities Exchange Acts of 1933 and 1934. Rivian, an electric vehicle ("EV") company, unveiled its first consumer EVs, the R1T electric pickup truck and the R1S electric SUV, in 2018. According to the Registration Statement filed in connection with the IPO, the "R1T and R1S introduce our brand to the world and will serve as our flagship vehicles as we continue to expand our offerings." R1T sales began in September 2021 and R1S sales were planned to begin in December 2021. As of October 31, 2021, Rivian reported "approximately 55,400 R1T and R1S preorders in the United States and Canada from customers who paid a cancellable and fully refundable deposit of $1,000." At the time of its IPO, Rivian planned to produce approximately 1,200 R1Ts and 25 R1Ss by the end of 2021. Based on Rivian's production forecast, the Company expected to fill its 55,400 R1T and R1S backlog by the end of 2023. Rivian's success depended on customers ultimately completing their purchases once Rivian's EVs became available. Preorders for the R1T and R1S had grown to approximately 71,000 by December 15, 2021. On March 1, 2022, Rivian announced that it was raising the prices of its R1T pickup and R1S SUV by 17% and 20%, respectively - and that these new prices would apply to nearly all preorders. As of March 1, Rivian had only produced and sold roughly 1,000 vehicles. As a result, Rivian's share price fell almost 10%, closing at $61.91 on March 1, 2022. Since the IPO, the price of Rivian's stock has fallen over 45%, closing as low as $42.28 per share on March 7, 2022. If you wish to serve as lead plaintiff, you must move the Court no later than May 6, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased RIVN common stock, and/or would like to discuss your legal rights and options please visit Rivian Automotive, Inc. Shareholder Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. ATTORNEY ADVERTISING. (c) 2022 Bernstein Liebhard LLP. The law firm responsible for this advertisement is Bernstein Liebhard LLP, 10 East 40th Street, New York, New York 10016, (212) 779-1414. Prior results do not guarantee or predict a similar outcome with respect to any future matter. [GN] ROBINHOOD MARKETS: Briefing Sched Entered in "Order Flow" Suit -------------------------------------------------------------- In the class action lawsuit re Robinhood Order Flow Litigation, Case No. 4:20-cv-09328-YGR (N.D. Cal.), the Hon. Judge entered an order that the briefing schedule and hearing of the Defendants' motion to deny class certification is as follows: 1. The Plaintiffs' opposition Aug. 20, 2021 shall be due: 2. The Defendants' reply shall Sept. 24, 2021 be due: 3. The hearing is set for: Oct. 19, 2021 Robinhood is an American financial services company headquartered in Menlo Park, California, known for pioneering commission-free trades of stocks, exchange-traded funds and cryptocurrencies via a mobile app introduced in March 2015. A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3uPfrzH at no extra charge.[CC] The Plaintiff is represented by: The Attorneys for the Defendants Robinhood Markets, Inc.; Robinhood Financial LLC; and robinhood securities, LLC, are: C. Brandon Wisoff, Esq. Russell Taylor, Esq. FARELLA BRAUN + MARTEL LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4480 E-mail: bwisoff@fbm.com rtaylor@fbm.com - and - Maeve L. O'Connor, Esq. Elliot Greenfield, Esq. Brandon Fetzer, Esq. Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 Telephone: (212) 909-6000 E-mail: mloconnor@debevoise.com egreenfield@debevoise.com bfetzer@debevoise.com ROSARIO LLC: Roman Seeks OT Wages for Restaurant Staff Under FLSA ----------------------------------------------------------------- RODOLFO ROMAN, individually and on behalf of all others similarly situated v. ROSARIO, LLC d/b/a ROSARIO'S DELI and ROSARIO DIMARCO, Case No. 1:22-cv-01715 (March 28, 2022) seeks equitable and legal relief for the Defendants' violations of the Fair Labor Standards Act of 1938 and the New York Labor Law. The FLSA Collective Plaintiffs consist of no less than five similarly situated employees employed by the Defendants, who work or worked in excess of 40 hours per week and are victims of the Defendants' common policies and practices that have violated their rights under the FLSA by willfully denying them overtime wages. The Plaintiff worked for the Defendants as a cook and counter helper from in or around January 2001 until in or around September 9, 2021. As a cook and counter helper, the Plaintiff's primary job duties included assisting customers, cooking food, washing dishes, cleaning, and preparing catering orders. Rosario's Deli is a deli and convenience store that sells made-to-order and ready-to-eat food products and other goods.[BN] The Plaintiff is represented by: Eliseo Cabrera, Esq. KATZ MELINGER PLLC 370 Lexington Avenue, Suite 1512 New York, NY 10017 Telephone: (212) 460-0047 Facsimile: (212) 428-6811 E-mail: edcabrera@katzmelinger.com RUSSELECTRIC INC: Sued Over Mismanagement of Retirement Fund ------------------------------------------------------------ RITA BOWERS, MICHELE GEAR-COLE, FLORENCE LORENZANO, AND REGINALD TERCY, individually and on behalf of the Russelectric Inc. Employee Stock Ownership Plan, Plaintiffs v. JOHN H. RUSSELL, SUZANNE E. RUSSELL, AND LISA J. RUSSELL, individually and as trustees of the Russelectric Stockholder Trusts and the RUSSELECTRIC STOCK PROCEEDS TRUSTS AND DENISE D. WYATT, DENNIS J. LONG, ARGENT TRUST COMPANY, Defendants, Case No. 1:22-cv-10457 (D. Mass., Mar. 25, 2022) is an action by the Plaintiff on behalf of PlaintiffRusselectric Inc. Employee Stock Ownership Plan (the "Plan" or the "ESOP"), alleges violation of the Employee Retirement Income Security Act of 1974. According to the Plaintiffs in the complaint, the Defendants orchestrated the unlawful redemption of Russelectric employees' retirement benefits for less than fair market value in violation of ERISA. The Russell family sparred over ownership of its namesake company, Russelectric Inc. (the "company" or "Russelectric"), near the end of founder and sole shareholder Raymond Russell's life. In the fray, the founder conveyed 30% of his Russelectric stock, through the ESOP, to Russelectric employees as a retirement benefit. Yet most of the value of that stake was never enjoyed by ESOP participants. After the founder died, the company, at the direction and for the benefit of the founder's heirs, reclaimed the ESOP's shares and terminated the Plan. When the heirs sold the company to a multinational conglomerate a few years later, the heirs received more than three times the price paid to redeem the ESOP's shares. Allegedly, the ESOP redemption terms provided a price adjustment for participants to receive the higher re-sale price -- but only with respect to Russelectric shares that had been allocated to their individual accounts prior to the Plan's termination. The rest of the ESOP's shares -- around two-thirds of the ESOP's total stake in the company -- were held in an unallocated account on the termination date and received no such consideration. Argent Trust Company is located in Nashville, TN, United States and is part of the Other Financial Investment Activities Industry.[BN] The Plaintiffs are represented by: Jason M. Leviton, Esq. BLOCK & LEVITON, LLP 260 Franklin Street, Suite 1860 Boston, MA 02110 Telephone: (617) 398-5600 Email: jason@blockesq.com - and - Paul J. Lukas, Esq. Brock J. Specht, Esq. Brandon T. McDonough, Esq. Jacob T. Schutz, Esq. NICHOLS KASTER, PLLP 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 Email: lukas@nka.com bspecht@nka.com bmcdonough@nka.com jschutz@nka.com - and - Marc Edelman, Esq. MORGAN & MORGAN, PA 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: medelman@forthepeople.com - and - Brandon J. Hill, Esq. WENZEL, FENTON, CABASSA, P.A. 1110 N. Florida Ave, Suite 300 Tampa, FL 33602 Telephone: (813) 337-7992 E-mail: bhill@wfclaw.com SAN FRANCISCO, CA: Class Cert Briefing Schedule Proposed in Pierce ------------------------------------------------------------------ In the class action lawsuit captioned as JILLIAN PIERCE, NICOLE WADE, FANTASY DECUIR, DAMENA PAGE, and VINCENT KEITH BELL on behalf of themselves and all others similarly situated, v. CITY AND COUNTY OF SAN FRANCISCO, San Francisco Sheriff's Department Sheriff VICKI HENNESSY, San Francisco Sheriff's Department Chief Deputy MICHELE FISHER, and County of San Francisco employees DOES 1-50, Case No. 4:19-cv-07659-JSW (N.D. Cal.), the Parties propose the following briefing schedule: -- Motion for Class Certification April 22, 2022 due: -- Response to Class Certification May 6, 2022 Motion due: -- Reply to Class Certification May 13, 2022 Motion: -- Hearing on Class Certification: May 27, 2022 A copy of the Parties' motion dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3DuplKS at no extra charge.[CC] The Plaintiffs are represented by: Andrew Chan Kim, Esq. SIEGEL, YEE, BRUNNER & MEHTA 475 14th Street, Suite 500 Oakland, CA 94612 Telephone: (510) 839-1200 Facsimile: (510) 444-6698 E-mail: danmsiegel@gmail.com emilyrose@siegelyee.com chankim@siegelyee.com The Defendant is represented by: Dennis J. Herrera, Esq. Meredith B. Osborn, Esq. Raymond Rollan, Esq. SF PUBLIC UTILITIES COMMISSION 525 Golden Gate Avenue, 13th F San Francisco, CA 94102 Telephone: (415) 554-1600 E-mail: bfeitelberg@sfwater.org SAN FRANCISCO: Johnson Labor Code Suit Removed to N.D. California ----------------------------------------------------------------- The case styled JAMIE JOHNSON, individually and on behalf of all others similarly situated v. SAN FRANCISCO HEALTH CARE AND REHAB INC. and DOES 1 through 20, inclusive, Case No. CGC 22-597785, was removed from the Superior Court of the State of California, County of San Francisco, to the U.S. District Court for the Northern District of California on March 28, 2022. The Clerk of Court for the Northern District of California assigned Case No. 3:22-cv-01982 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 timely pay final wages, failure to provide accurate itemized wage statements, and unfair and unlawful competition. San Francisco Health Care and Rehab Inc. is a provider of healthcare services based in San Francisco, California. [BN] The Defendant is represented by: Diane Marie O'Malley, Esq. Warren Hodges, Esq. Michael E. Turner, Esq. HANSON BRIDGETT LLP 425 Market Street, 26th Floor San Francisco, CA 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 E-mail: domalley@hansonbridgett.com whodges@hansonbridgett.com mturner@hansonbridgett.com - and – Jonathan Van Ee, Esq. THE LAW OFFICES OF JONATHAN VAN EE 7172 Regional Street No. 342 Dublin, CA 94568 Telephone: (415) 938-7694 E-mail: jonathan@probusinessattorneys.com SC REALTY: Fails to Pay Proper Wages Under FLSA, AMWA, Pratt Says ----------------------------------------------------------------- HAMONN PRATT, Individually and on Behalf of All Others Similarly Situated v. SC REALTY SERVICES, INC., Case No. 4:22-cv-00286-KGB (E.D. Ark., March 28, 2022) seeks declaratory judgment, monetary damages, liquidated damages, costs, and a reasonable attorneys' fee, as a result of Defendant's policy and practice of failing to pay Plaintiff sufficient wages under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. The Defendant's reimbursement formula or lack thereof has allegedly resulted in an unreasonable underestimation of Janitors' automobile expenses throughout the recovery period, causing systematic violations of the minimum wage laws. Because the Defendant paid Plaintiff and other Janitors a gross hourly wage for the work performed at the Defendant's clients' facilities at or around the applicable minimum wage, and because the Plaintiff and other Janitors incurred unreimbursed automobile expenses and other job expenses, the Janitors "kicked back" to the Defendant an amount sufficient to cause minimum wage violations, says the suit. Because the Defendant failed to reimburse the Plaintiff and other Janitors for mileage and travel expenses, the Plaintiff and other Janitors consistently "kicked-back" the cost of mileage to the Defendant, which led to overtime violations during weeks in which they worked over 40 hours. As a result of the automobile and other job-related expenses incurred by the Plaintiff and other similarly situated Janitors, they were deprived of minimum wages guaranteed to them by the FLSA and AMWA, the suit added. SC Realty provides building repair and maintenance services.[BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Parkway, Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com SCRATCH SERVICES: Dicks FCRA Suit Removed to E.D. New York ---------------------------------------------------------- The case styled MORAIS A. DICKS and PROGRESSIVE HOMES & DEVELOPMENT INC., individually and on behalf of all others similarly situated v. SCRATCH SERVICES, LLC and CROSS RIVER BANK, Case No. 602306/2022, was removed from the Supreme Court of the State of New York, County of Nassau to the U.S. District Court for the Eastern District of New York on March 25, 2022. The Clerk of Court for the Eastern District of New York assigned Case No. 2:22-cv-01667-GRB-ARL to the proceeding. The case arises from the Defendants' alleged violations of the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and New York State's General Business Law as well as claims for breach of contract and declaratory and injunctive relief in connection with three purported Paycheck Protection Program (PPP) loans. Progressive Homes & Development Inc. is a real estate company based in New York. Scratch Services, LLC is a loan servicing company headquartered in California. Cross River Bank is an American financial services company based in New Jersey. [BN] The Defendant is represented by: Samantha J. Katze, Esq. MANATT, PHELPS & PHILLIPS, LLP 7 Times Square New York, NY 10036 Telephone: (212) 790-4500 E-mail: SKatze@manatt.com SICHUAN GOURMET: Court Denies Bid to Dismiss SG II From Xiao Suit ----------------------------------------------------------------- In the case, WENLIN XIAO on his own behalf and on behalf of others similarly situated, Plaintiff v. SICHUAN GOURMET LLC, et al., Defendants, Case No. 2:21-cv-00482 (W.D. Pa.), Judge Mark K. Hornak of the U.S. District Court for the Western District of Pennsylvania issued an Opinion: a. granting the Moving Defendants' Motion to Dismiss the First Amended Complaint under Fed. R. Civ. P. 12(b)(6) with respect to each of the Moving Defendants other than Sichuan Gourmet II LLC; and b. denying the Motion to Dismiss with respect to Sichuan Gourmet II LLC. I. Introduction In the putative collective and class action, the Plaintiff brings wage and hour law claims against four enterprise Defendants and six (6) individual Defendants who are associated with those enterprises. One (1) enterprise Defendant, Sichuan Gourmet LLC, and one (1) individual Defendant, Weixiang You, have filed an Answer. The remaining Defendants ("Moving Defendants") have filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6), arguing that the Amended Complaint fails to state a claim upon which relief may be granted with respect to the Moving Defendants. II. Background The case involves allegations of unfair labor practices in violation of the Fair Labor Standards Act ("FLSA") and Pennsylvania Minimum Wage Act of 1968 ("PAMWA"). On April 9, 2021, the Plaintiff filed suit against 10 Defendants, including fou enterprise Defendants -- Sichuan Gourmet LLC ("SG I"), Sichuan Gourmet II LLC ("SG II"), Lotus Food Inc, and OC Partners LLC -- and six individual Defendants -- Weixiang You, Yongjun Zhang, Yongpeng Xia, Zhong Zhuang, Kuohwa Wang, and Taimei Wang. On June 23, 2021, all 10 Defendants filed a Motion to Dismiss for Insufficient Service of Process or Failure to State a Claim. The Plaintiff sought leave to Amend on July 7, 2021, which the Court granted on July 12, 2021. The Plaintiff then filed the First Amended Complaint ("the Amended Complaint") on Aug. 6, 2021. On Oct. 11, 2021, Defendants SG I and Weixiang You filed an Answer. That same day, the remaining Defendants -- SG II, Lotus Food Inc, OC Partners LLC, Yongjun Zhang, Yongpeng Xia, Zhong Zhuang, Kuohwa Wang, and Taimei Wang ("Moving Defendants") -- filed a Motion to Dismiss for Failure to State a Claim ("Motion to Dismiss"), along with a supporting brief and affidavit. On Oct. 25, 2021, the Plaintiff filed a Brief in Opposition ("Response") and supporting affidavit. The Defendants did not file a Reply or otherwise indicate an intention to respond to the Plaintiff's Response. The Court has determined that oral argument is not necessary to resolve the Motion, and it is now ripe for disposition. III. Conclusion The threshold question in any FLSA dispute is the existence of an employer-employee relationship, defined according to economic reality and operationalized through the Enterprise control test. Judge Hornak concludes that the Plaintiff has not pleaded sufficient allegations to establish that any of the following Moving Defendants were his employer as defined by that test: Yongjun Zhang, Yongpeng Xia, Zhong Zhuang, Kuohwa Wang, Taimei Wang, Lotus Food Inc, and OC Partners LLC. The Motion to Dismiss is therefore granted with respect to each of those Defendants. Judge Hornak further concludes that while the Plaintiff has not pleaded sufficient allegations to establish that Sichuan Gourmet II was his employer under a theory of joint employer liability, the allegations in the Amended Complaint are sufficient to establish a plausible claim that Sichuan Gourmet I and Sichuan Gourmet II were in a single employer relationship with Plaintiff. The Motion to Dismiss is therefore denied with respect to Sichuan Gourmet II. An appropriate Order will follow. A full-text copy of the Court's March 18, 2022 Opinion is available at https://tinyurl.com/2p8w22nb from Leagle.com. SMILEDIRECTCLUB INC: Class Certification in Securities Suit Upheld ------------------------------------------------------------------ In the case, IN RE SMILEDIRECTCLUB, INC. SECURITIES LITIGATION, Case No. M2021-00469-COA-R3-CV (Tenn. App.), the Court of Appeals of Tennessee at Nashville affirmed the Davidson County Chancery Court's certification of a proposed class. I. Introduction In the action alleging violations of a federal securities law due to purported misrepresentations and omissions in an initial public stock offering, the Plaintiffs sought to certify a class consisting of all persons who purchased common stock during the initial public offering. The trial court certified the class, determining that the requirements of Tennessee Rule of Civil Procedure 23 had been satisfied. The Defendants have appealed. II. Background On Dec. 20, 2019, the Plaintiffs, Brittany Vang and Matthew Mancour, filed a complaint in the trial court on behalf of "all purchasers of SmileDirectClub, Inc. Class A common stock that was issued pursuant and/or traceable to the Company's Registration Statement and Prospectus filed with the U.S. Securities and Exchange Commission in connection with SmileDirectClub's Sept. 12, 2019 initial public stock offering." The Plaintiffs alleged that SmileDirectClub, Inc. ("SDC") had violated the disclosure requirements of the Securities Act of 1933, codified at 15 U.S.C. Section 77a, et seq. ("Securities Act"), such that SDC and its officers, directors, underwriters, and managing members (collectively, "Defendants") were strictly liable for the Plaintiffs' damages. The Plaintiffs specifically alleged violations of sections 11, 12(a)(2), and 15 of the Securities Act. The Plaintiffs pled, inter alia, that the initial public offering documents contained materially untrue and misleading statements because they "falsely overstated the caliber and scope of dental services SDC customers receive and omitted critical material information about the Company's true business model." They asserted that the offering documents also "understated regulatory and legislative risks in numerous states around the country," made "false and misleading statements about customer satisfaction," and "failed to disclose ballooning costs that had occurred at the time of the initial public offering." In their complaint, the Plaintiffs claimed that a class action was necessary inasmuch as there were numerous potential class members who were damaged by their purchase of common stock during the initial public stock offering. They also claimed that these potential class members satisfied the requirements of maintaining a class action set forth in Tennessee Rule of Civil Procedure 23. They sought certification of the proposed class as well as, inter alia, an award of damages and injunctive relief. The Plaintiffs further demanded a trial by jury. Although the Defendants filed a motion seeking to dismiss the complaint for failure to state a claim upon which relief could be granted or to have the proceedings stayed pending the outcome in a parallel federal action, the trial court denied the motion on June 4, 2020. On July 7, 2020, the Defendants filed a motion seeking permission to file an interlocutory appeal of the trial court's June 4, 2020 order. Also on July 7, 2020, Defendants SDC, David Katzman, Kyle Wailes, Steven Katzman, Jordan Katzman, Alexander Fenkell, Susan Greenspon Rammelt, Richard Schnall, and Camelot Venture Group (collectively, "SDC Defendants"), filed an answer to the complaint. Defendants J.P. Morgan Securities LLC; Citigroup Global Markets Inc.; BofA Securities, Inc.; Jefferies LLC; UBS Securities LLC; Credit Suisse Securities (USA) LLC; Guggenheim Securities, LLC; Stifel, Nicolaus & Company, Incorporated; William Blair & Company, LLC; and Loop Capital Markets LLC (collectively, "Underwriter Defendants") filed a separate answer on the same day. On July 22, 2020, the trial court entered an order concerning the Defendants' motion for an interlocutory appeal, determining that although an interlocutory appeal was appropriate with respect to the trial court's denial of a stay, it was not appropriate regarding the court's denial of the motion to dismiss. The trial court therefore granted the motion in part and denied it in part. However, the Court subsequently denied permission for an interlocutory appeal on Aug. 20, 2020. On Oct. 2, 2020, the Plaintiffs filed a motion, pursuant to Tennessee Rule of Civil Procedure 23, seeking certification of the following class: "All persons who purchased or acquired common stock pursuant or traceable to the Registration Statement and Prospectus issued in connection with SDC's Sept. 12, 2019 initial public offering (the Class). The Plaintiffs averred that the proposed class satisfied all of the requirements of Rules 23.01 and 23.02. The Defendants filed a response opposing class certification, arguing, inter alia, that: (1) the proposed class representatives were not adequate, (2) the proposed class representatives' claims were not typical, (3) individual questions predominated over common issues, and (4) the proposed class definition was too broad. Plaintiffs and Defendants filed numerous documents, including affidavits, in support of their respective positions concerning class certification. On April 28, 2021, the trial court entered an order granting the Plaintiffs' motion for class certification. The Defendants timely appealed the trial court's order certifying the class. On May 13, 2021, the trial court entered an order staying the proceedings pending resolution of the appeal concerning the class certification ruling. III. Discussion The Defendants present the following issues for this Court's review, which it has restated slightly: 1. Whether the trial court erred by determining that the claims of the proposed class representatives are typical pursuant to the requirements of Tennessee Rule of Civil Procedure 23.01(3). 2. Whether the trial court erred by determining that the proposed class representatives can adequately represent the interests of the class pursuant to the requirements of Tennessee Rule of Civil Procedure 23.01(4). 3. Whether the trial court erred by determining that issues common to the class predominate over individual issues pursuant to the requirements of Tennessee Rule of Civil Procedure 23.02(3). 4. Whether the trial court erred by certifying a class with no temporal limitation, thereby purportedly including members who have no actionable injury given the timing of their trades. A. Typicality The Defendants argue that the trial court erred by determining that the claims of the Plaintiffs as proposed class representatives were typical of the proposed class' claims, pursuant to the requirements of Tennessee Rule of Civil Procedure 23.01(3), because the Plaintiffs' claims were subject to unique causation and standing defenses that might not apply to other class members. Specifically, the Defendants contend that the Plaintiffs were "in-and-out traders" who purchased their SDC shares from third-party websites rather than purchasing directly from the Defendants and who sold their shares before all of the alleged misrepresentations in the offering documents were revealed. Although it recognizes the Defendants' postulate that the timing of the sales of various class members' stock might affect what the Defendants are required to prove with regard to the affirmative defense of negative loss causation, the Court of Appeals agrees with the trial court's determination that this argument would not defeat typicality. The Defendants bear the burden of proving the affirmative defense, and if they choose to try and present varying factual situations to show other purported reasons for the decline in stock value based on when class members sold their stock, that will be their responsibility. However, the Plaintiffs have alleged that material misrepresentations or omissions in the offering documents caused the price of the stock to be artificially inflated, which is sufficient to state a prima facie claim under the Securities Act, and they have alleged that these misrepresentations or omissions affected the entire class. The Court of Appeals conclude that the possibility of the Defendants' raising individualized negative loss causation defense arguments does not lead to the supposition that the proposed class representatives will not properly advance the interests of the other class members or that those defenses are likely to become a major focus of the litigation. It therefore determines the Defendants' causation arguments to be unavailing. The Defendants also point out that in order to have standing to bring a claim pursuant to section 12(a)(2), a plaintiff "must have purchased securities directly from the defendants. They contend that although other class members may have standing to bring a claim pursuant to section 12(a)(2), the Plaintiffs have no such standing because they did not purchase their shares directly from them. In their appellate brief, the Plaintiffs appear to concede that they lack standing pursuant to section 12(a)(2). However, they posit that (1) they can represent class members with section 12(a)(2) claims even if they only have section 11 claims and (2) the Defendants' argument is best addressed in a dispositive motion rather than at the class certification stage. The Court of Appeals determines that the trial court erred by "applying an incorrect legal standard" when analyzing the standing sub-issue. Insofar as the proposed class representatives failed to demonstrate that they had standing to assert a claim based upon section 12(a)(2) on their own behalf, they were unable to bring a class action asserting such a claim on behalf of other class members. Accordingly, the section 12(a)(2) claims must be dismissed. The Court of Appeals otherwise concludes that the trial court did not abuse its discretion in determining that the typicality requirement had been met. B. Adequacy of Representation The Defendants argue that the Plaintiffs are inadequate class representatives because their testimony in discovery demonstrated that they were unable to "explain basic information" about the case, contradicted the allegations of the complaint, and had "abdicated complete control" to their attorneys. According to the Defendants, Ms. Vang admitted in her deposition that she had never read the offering documents while Mr. Mancour disavowed the complaint's theories concerning how the offering documents were misleading. The Defendants posit that the litigation is lawyer driven and that the Plaintiffs admitted to having been solicited by attorneys to serve as class representatives and having no meaningful involvement in the decision-making process. The Court of Appeals agrees with the trial court that the Plaintiffs have demonstrated that they will adequately represent the interests of the class in the matter. And, inasmuch as the Defendants have not questioned the class counsel's qualifications, and the Court of Appeals agrees with the trial court's determination that the class counsel are "highly qualified" to conduct the litigation, it finds the Defendants' argument to be unavailing. C. Predominance of Common Questions The Defendants further advance that individual questions concerning each class member's knowledge will predominate over common issues in this matter, thus rendering class certification unworkable under Rule 23.02(3). Following satisfaction of the requirements of Tennessee Rule of Civil Procedure 23.01, "the proponent of class certification must establish that the class action is maintainable under Rule 23.02." Rule 23.02(3) requires, for the class to be certified, that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Based upon its thorough review of the circumstances presented in the matter in light of applicable case law, the Court of Appeals agrees with the trial court's determination concerning predominance and Rule 23.02(3). It reiterates that a prima facie claim pursuant to section 11 requires allegations that an investor had purchased a security "issued pursuant to a registration statement" that contained a "material misstatement or omission." The federal courts have established that "materiality is judged according to an objective standard" such that materiality questions are considered "common to all members of the class." The Defendants have failed to show that arguments of investor public "knowledge" cannot be handled on a class-wide basis. Claims of information in the public domain would be subject to generalized proof common to the entire class. The Court of Appeals accordingly agrees with the trial court's conclusion that questions common to the class would predominate over individual issues, such that the action is maintainable as a class action pursuant to Rule 23.02(3). D. Class Definition Finally, the Defendants contend that the class definition adopted by the trial court is overbroad in that it contains no time limitations. The trial court adopted the following class definition: "All persons who purchased or acquired common stock pursuant or traceable to the Registration Statement and Prospectus issued in connection with SmileDirect's Sept. 12, 2019 initial public offering." The Defendants posit that in-and-out traders who sold their shares before Sept. 24, 2019, or acquired them after Nov. 12, 2019, should be excluded from the class due to the Plaintiffs' allegations that any misrepresentations and omissions were revealed through disclosure events occurring between the two dates. As such, the Defendants claim that investors who sold their shares before or purchased them after this time period would have incurred no damages. The Court of Appeals agrees with the Plaintiffs' assertion that the Defendants are "prematurely and improperly raising merits issues at the class certification stage. The Defendants question whether certain class members will be able to prove that they actually incurred damages if they sold their SDC shares before or purchased them after various corrective disclosures were made. The answer to this question will depend on the proof developed in discovery regarding those class members' claims. The Court of Appeals determines that any questions concerning temporal limitations on the class are better addressed to the trial court following discovery. IV. Conclusion For the foregoing reasons, the Court of Appeals affirmed the trial court's certification of the proposed class. Based on lack of standing, however, it dismissed the Plaintiffs' claims under section 12 of the Securities Act of 1933, codified at 15 U.S.C. Section 77l. The Court of Appeals remanded the matter to the trial court for further proceedings consistent with its opinion. Costs on appeal are assessed to the Defendants, SmileDirectClub, Inc.; David Katzman; Kyle Wailes; Steven Katzman; Jordan Katzman; Alexander Fenkell; Susan Greenspon Rammelt; Richard Schnall; Camelot Venture Group; J.P. Morgan Securities LLC; Citigroup Global Markets Inc.; BofA Securities, Inc.; Jefferies LLC; UBS Securities LLC; Credit Suisse Securities (USA) LLC; Guggenheim Securities, LLC; Stifel, Nicolaus & Company, Incorporated; William Blair & Company, LLC; and Loop Capital Markets LLC. A full-text copy of the Court's March 18, 2022 Opinion is available at https://tinyurl.com/4byraupm from Leagle.com. Steven A. Riley -- sriley@rwjplc.com; Milton S. McGee, III; and Elizabeth O. Gonser -- egonser@rwjplc.com -- Nashville, Tennessee, and Scott D. Musoff, in New York City, for the Appellants, SmileDirectClub, Inc.; David Katzman; Kyle Wailes; Steven Katzman; Jordan Katzman; Alexander Fenkell; Susan Greenspon Rammelt; Richard Schnall; and Camelot Venture Group. John S. Hicks -- jhicks@bakerdonelson.com -- and Christopher E. Thorsen -- cthorsen@bakerdonelson.com -- in Nashville, Tennessee, and Sharon L. Nelles, Andrew J. Finn, and Shane M. Palmer, in New York City, for the Appellants, J.P. Morgan Securities LLC; Citigroup Global Markets Inc.; BofA Securities, Inc.; Jefferies LLC; UBS Securities LLC; Credit Suisse Securities (USA) LLC; Guggenheim Securities, LLC; Stifel, Nicolaus & Company, Incorporated; William Blair & Company, LLC; and Loop Capital Markets LLC. Jerry E. Martin -- jmartin@rgrdlaw.com -- David W. Garrison -- dgarrison@barrettjohnston.com -- and Seth M. Hyatt -- shyatt@barrettjohnston.com -- in Nashville, Tennessee, for the Appellees, Brittany Vang and Matthew G. Mancour. SNAP INC: Arbitrator to Decide Over Minor Suit's Contract Signing ----------------------------------------------------------------- Scott Holland at cookcountyrecord.com reports that a federal appeals court has ruled a judge can't void Snapchat's user agreement simply because the user who signed it was a minor. The U.S. Seventh Circuit Court of Appeals issued an opinion March 24 addressing a class action lawsuit with a minor lead plaintiff, identified only as K.F.C. Seventh Circuit Judge Frank Easterbrook wrote the opinion; Judges Amy St. Eve and Thomas Kirsch concurred. According to Easterbrook, Illinois resident K.F.C. was 11 when she opened an account on social media platforim Snapchat, even though the software's enrollment terms require users must be at least 13. After using the service for a few years, K.F.C. sued Snap Inc., alleging Snapchat violated the Illinois Biometric Information Privacy Act by failing to obtain consent to use its facial recognition technology. The lawsuit also accuses Snap of failing to follow BIPA's data disclosure and retention guidelines. Snap argued K.F.C. ratified the user agreement through her continued use of the software and also said BIPA doesn't apply to its service. Although Snap is incorporated in Delaware and has its main office in California, K.F.C. lives in the Southern District of Illinois, where U.S. District Judge David Dugan dismissed her complaint in June 2021. Dugan ruled an arbitrator instead should resolve the argument of whether the user agreement's arbitration clause applies to a minor, and whether she should be allowed to lead the BIPA class action. The outright dismissal allowed K.F.C. to appeal. "K.F.C. acknowledges that she accepted these terms but denies that the arbitration clause (or any other part of the agreement) binds her," Easterbrook wrote. "She concedes that she continued using Snapchat after turning 13 but maintains that this is irrelevant, because she was (and still is) under 18." According to the panel, K.F.C. argued arbitration is a matter of contract, and a judge has to determine if a contract exists before mandating a dispute can head to an arbitrator. The panel said that position is rooted in a 1986 U.S. Supreme Court opinion in AT&T Technologies v. Communications Workers, but explained the question on appeal hinges on K.F.C.'s premise a child can't form a contract. "State law governs the power to form a contract," Easterbrook wrote. He said the parties agree California and Illinois laws are materially identical on this subject. "Illinois does not think that agreements between adults and children are void - that they must be ignored, no matter what. Illinois treats such agreements as voidable, which means that children may elect how to proceed once they come of age," Easterbrook wrote. Because Illinois law allows a child to accept an agreement and claim its benefits, the panel continued, such a child also is bound by any of the deal's detriments. And since a voidable agreement is not automatically applied, Illinois law allows age to be a potential defense against enforcing the agreement. But while the question of whether a contract exists rests with a judge, an arbitrator must decide whether the contract is valid. The panel said it found only one relevant federal appellate decision, a 2021 U.S. Sixth Circuit Court of Appeals opinion in I.C. v. StockX, which "is all but identical." That majority said Michigan law stipulates youth is a defense of contract enforcement, but not an impediment to forming a contact. Although on appeal K.F.C. cited her age when she accepted the user agreement as a reason the agreement is invalid, the panel said she only presented that argument in passing before Judge Dugan, therefore forfeiting the right to use it on appeal. Plaintiffs are represented in the action by attorneys Mark R. Sigmon, Matthew E. Lee, Erin J. Ruben and Caroline R. Taylor, of the firm of Milberg Coleman Bryson Phillips Grossman, of Raleigh, North Carolina; and Gregory F. Coleman, of Knoxville, Tennessee. Snap is represented by attorneys Elizabeth B. Herrington and James D. Nelson, of Morgan Lewis & Bockius, of Chicago and Washington, D.C. [GN] ST. LOUIS, MO: Jones Suit Seeks to Certify Class & Subclass ----------------------------------------------------------- In the class action lawsuit captioned as DERRICK JONES, JEROME JONES, MARRELL WITHERS and DARNELL RUSAN, on behalf of themselves and all similarly situated individuals, v. CITY OF ST. LOUIS et al., Case No. 4:21-cv-00600-HEA (E.D. Mo.), the Plaintiffs ask the Court to enter an order certifying the following class and subclass who seek prospective injunctive and declaratory relief: -- CJC Class: a class consisting of all people who are now or will be detained by Defendants at the City Justice Center in St. Louis, MO. All, of the more than 500 people in this class, are subject to two common customs or practices: a) excessive and indiscriminate use of chemical agents; and b) punitive deprivation of water. -- The Medical Subclass: All members of the CJC Class who have a disability that makes them particularly susceptible to serious harm from chemical agents. The Plaintiffs also ask that this Court appoint the following attorneys as class counsel in this matter: Amy Breihan, Brendan Roediger, Brittney Watkins, Lauren Bartlett, Maureen Hanlon, Oren Nimni, Patrick Mobley, and Shubra Ohri. A copy of the Plaintiffs' motion to certify class dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3wVMox0 at no extra charge.[CC] The Plaintiffs are represented by: Shubra Ohri, Esq. Amy E. Breihan, Esq. W. Patrick Mobley, Esq. 906 Olive Street, Suite 420 Saint Louis, MO 63101 RODERICK & SOLANGE MACARTHUR JUSTICE CENTER - and - Blake A. Strode, Esq. Jacki Langum, Esq. John M. Waldron, Esq. Maureen Hanlon, Esq. Brittney Watkins, Esq. Emanuel Powell, Esq. Nathaniel R. Carroll, Esq. ARCHCITY DEFENDERS, INC. 440 N. 4th Street, Suite 390 Saint Louis, MO 63102 - and - Brendan Roediger, Esq. Lauren Bartlett, Esq. SAINT LOUIS UNIVERSITY SCHOOL OF LAW LEGAL CLINICS 100 N. Tucker Blvd. Saint Louis, MO 63101-1930 - and - Oren Nimni, Esq. RIGHTS BEHIND BARS 416 Florida Avenue, NW No. 26152 Washington, D.C. 20001 ST. LOUIS, MO: Jones, et al., Seek Leave to File Instanter ---------------------------------------------------------- In the class action lawsuit captioned as DERRICK JONES et al, v. CITY OF ST. LOUIS et al., Case No. 4:21-cv-00600-HEA (E.D. Mo.), the Plaintiffs ask the Court to enter an order granting them leave to file instanter an oversized Memorandum in Support of their Motion for Class Certification. The Plaintiffs say that their motion for leave is made in good faith and will not prejudice Defendants. A copy of the rPlaintiff's motion dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3IXoV0G at no extra charge.[CC] The Plaintiffs are represented by: Shubra Ohri, Esq. Amy E. Breihan, Esq. W. Patrick Mobley, Esq. Shubra Ohri, Esq. RODERICK & SOLANGE MACARTHUR JUSTICE CENTER 906 Olive Street, Suite 420 Saint Louis, MO 63101 - and - Maureen Hanlon, Esq. Blake A. Strode, Esq. Jacki Langum, Esq. John M. Waldron, Esq. Maureen Hanlon, Esq. Brittney Watkins, Esq. Emanuel Powell, Esq. ARCHCITY DEFENDERS, INC. Nathaniel R. Carroll, Esq. 440 N. 4th Street, Suite 390 Saint Louis, MO 63102 - and - Brendan Roediger, Esq. Lauren Bartlett, Esq. SAINT LOUIS UNIVERSITY SCHOOL OF LAW LEGAL CLINICS 100 N. Tucker Blvd. Saint Louis, MO 63101-1930 - and - Oren Nimni, Esq. RIGHTS BEHIND BARS 416 Florida Avenue, NW No. 26152 Washington, D.C. 20001 STATE FARM: Faces Class-Action For Undervaluing Wrecked Cars ------------------------------------------------------------ John Clark at mystateline.com reports that State Farm systematically undervalues cars the company deems as a total wreck, according to a new report from Crain's Business. A class-action lawsuit contends that the company's practice ends up costing the customer from 4% to 11% of the cash value. The complaint accuses the company of a deceptive, fraudulent, and unfair scheme. State Farm is the country's largest auto insurer. In a statement, State Farm said it was premature to comment on the lawsuit. [GN] STATE FARM: Seeks Extension to Respond to Martino Class Cert Bid ---------------------------------------------------------------- In the class action lawsuit captioned as LISA M. MARTINO, on behalf of herself and on behalf of all others similarly situated, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Case No. 4:20-cv-00910 (W.D. Mo.), the Parities ask the Court to enter an order extending the time for State Farm to respond to Plaintiffs' Motion to Certify the Class in order to facilitate ongoing settlement discussions. The Parties jointly request an additional 44 days, up to and including Friday, April 29, 2022, for State Farm to file its response to Plaintiffs' Motion to Certify the Class. The Plaintiff filed her Motion to Certify Class on January 14, 2022. State Farm's response was due on February 14, 2022. The Court granted an extension for State Farm's response to March 16, 2022 to facilitate the parties' settlement discussions. The parties have made significant progress toward agreement, but have encountered an issue for which they have agreed to involve a mediator. The mediation presently is scheduled for April 6, 2022. The parties believe that their continuing settlement discussions and mediation likely would be more productive if the filing of additional briefing by both parties (i.e., an Opposition and Reply) is briefly delayed. A copy of the Parties' motion dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3uzIze0 at no extra charge.[CC] The Plaintiff is represented by: Joseph A. Kronawitter, Esq. J. Brett Milbourn, Esq. Taylor P. Foye, Esq. HORN AYLWARD & BANDY, LLC 2600 Grand, Ste. 1100 Kansas City, MO 64108 Telephone: (816) 421-0700 Facsimile: (816) 421-0899 E-mail: bmilbourn@hab-law.com jkronawitter@hab-law.com tfoye@hab-law.com The Defendant is represented by: James F. Bennett, Esq. Robert F. Epperson, Jr., Esq. DOWD BENNETT LLP 7733 Forsyth Blvd., Suite 1900 St. Louis, MO 63105 Telephone: (314) 889-7300 Facsimile: (314) 863-2111 E-mail: jbennett@dowdbennett.com repperson@dowdbennett.com STICKER MULE: Faces Valiente Suit Over Telephonic Sales Calls ------------------------------------------------------------- HERIBERTO VALIENTE, individually and on behalf of all others similarly situated v. STICKER MULE, LLC, Case No. 146576224 (Fla. Cir., Miami-Dade Cty., March 28, 2022) is a class action under the Florida Telephone Solicitation Act as amended by Senate Bill No. 1120. The Defendant allegedly engages in telephonic sales calls to consumers without having secured prior express written consent as required by the FTSA. The Defendant's telephonic sales calls have caused Plaintiff and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy. The Plaintiff brings this lawsuit as a class action on behalf of himself individually and on behalf of all other similarly situated persons as a class action pursuant to Florida Rule of Civil Procedure 1.220(b)(2) and (b)(3). The "Class" that Plaintiff seeks to represent is defined as: "All persons in Florida and/or Florida residents who, (1) were sent a telephonic sales call regarding the Defendant's goods and/or services, 6(2) using the same equipment or type of equipment utilized to call Plaintiff." The Defendant and its employees or agents are excluded from the Class.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: 954.400.4713 E-mail: mhiraldo@hiraldolaw.com - and - Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com SUEZ WATER: Nicholls MPWL Suit Removed to D. Massachusetts ---------------------------------------------------------- The case styled JEREMIAH NICHOLLS, WALTER GOODROW, WESLEY DINSMORE and RICHARD RUPPERT, individually and on behalf of all others similarly situated v. SUEZ WATER ENVIRONMENTAL SERVICES, INC., Case No. 2279CV00091, was removed from the Massachusetts Superior Court, Hampden County, to the U.S. District Court for the District of Massachusetts on March 25, 2022. The Clerk of Court for the District of Massachusetts assigned Case No. 3:22-cv-30034 to the proceeding. The case arises from the Defendant's failure to pay the prevailing wage rates of its employees pursuant to Massachusetts Prevailing Wage Law. Suez Water Environmental Services Inc. is a water environmental services, with a principal place of business in Wilmington, Delaware. [BN] The Defendant is represented by: Stephen T. Melnick, Esq. Shea A. Miller, Esq. LITTLER MENDELSON, P.C. One International Place, Suite 2700 Boston, MA 02110 Telephone: (617) 378-6000 Facsimile: (617) 737-0052 E-mail: smelnick@littler.com samiller@littler.com TARGET CORP: New York Court Tosses Gordon's Amended Class Complaint ------------------------------------------------------------------- In the case, LOVELYN GORDON, individually and on behalf of all others similarly situated, Plaintiff v. TARGET CORPORATION, Defendant, Case No. 20-CV-9589 (KMK) (S.D.N.Y.), Judge Kenneth M. Karas of the U.S. District Court for the Southern District of New York granted the Defendant's Motion to Dismiss the Amended Complaint. I. Introduction Plaintiff Gordon brings the putative class action against Target, alleging that the labeling on the Defendant's "Toddler Next Stage" toddler drink is deceptive and misleading. The Plaintiff asserts claims for damages against the Defendant for (1) violations of Sections 349 and 350 of the New York General Business Law ("GBL"), N.Y. G.B.L. Sections 349, 350; (2) violation of the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. Sections 201, et seq.; (3) common law breach of express warranty; (4) common law breach of the implied warranty of merchantability; (5) common law negligent misrepresentation; (6) common law fraud; and (7) unjust enrichment. The Plaintiff also seeks injunctive relief to correct the alleged misrepresentations. Before the Court is the Defendant's Motion to Dismiss the Amended Complaint. II. Background The Defendant is a company which sells products ranging from groceries to consumer electronics in its approximately 1,900 stores located in all 50 states. Its private labels, or store brands, are known for their high quality and are considered equivalent to their branded counterparts. One such store brand is the Defendant's up & up(TM) brand, which it uses for its consumer health products. Among other things, the Defendant manufactures, markets, and sells milk-based powder products enriched with iron to both infants and non-infants under its up & up(TM) brand. The Action involves the Defendant's up & up(TM) branded "Toddler Next Stage" product, a milk-based powder drink designed for toddlers over the age of one year. The Plaintiff alleges that the similarities between the labeling of the two products gives caregivers of toddlers "the incorrect impression that the Product is nutritionally adequate for children over one year of age" and attempts to "ride the coattails of the carefully regulated Infant Formula to drive sales." She alleges that the Product's label is made even more misleading because it contains an infant formula panel on the reverse side of the container in addition to the nutrition facts panel. The Plaintiff alleges that the infant formula panel is in a format that caregivers would know is unique to highly regulated infant formulas, and is misleading "because it gives caregivers the impression that the Product, like infant formula, is subject to heightened and specific FDA regulations." The Plaintiff alleges that like other Transition Formulas, the Product is actually contrary to toddlers' nutritional needs, including because it contains two grams of added sugar per serving. She alleges that the fact that the Product contains added sugar is concealed from caregivers buying the Product because it is only shown via the inclusion of "corn syrup solids" in the fine-printed ingredients list. Moreover, the Product is both less nutritious and more expensive than whole cow's milk. As compared to whole cow's milk, the Product contains 0.31 fewer grams of protein, 0.02 more grams of fat, 13.86 more grams of carbohydrates, and 11 more calories per 8 fluid ounces. And, the Product costs approximately $14.35 per gallon, whereas whole cow's milk costs approximately $3.85. The Plaintiff alleges that the Defendant represents that the Product has been verified by an independent third-party as non-GMO via the inclusion of a graphic that reads "non-GMO" with the sub-heading: "ingredients not genetically engineered." She alleges that the Defendant has "intentionally mimicked the content and message of the foremost independent verification organization -- the Non-GMO Project," a non-profit organization that is considered a world leader in non-GMO testing, certification, and consulting. The Plaintiff alleges that the Defendant deliberately mimicked the Non-GMO Project's Product Verification Program seal on the Product's label to mislead consumers into believing that the Product does not contain milk derived from animals fed GMO crops, when, in truth, the Product contains dairy ingredients including milk and lactose that came from cows fed GMO grains. As a result of this allegedly deceptive seal, consumers allegedly paid a premium to purchase a non-GMO product that, in fact, contained ingredients that were produced with GMOs. The Plaintiff either "is or was a caregiver" for children older than one year old, and in May 2020, bought the Product on at least one occasion at the Defendant's store located at 500 East Sanford Boulevard, Mount Vernon, NY because she expected it would be nutritionally adequate for the children she cared for. She alleges that she "paid more for the Product than she would have paid otherwise" "absent the Defendant's false and misleading representations and omissions." She alleges that she "intends to, seeks to, and will purchase the Product again when she can do so with the assurance that the Product's representations about its components and ingredients are consistent with its representations." The Plaintiff filed her initial Complaint on Nov. 15, 2020. On April 13, 2021, the Defendant filed a pre-motion letter in anticipation of filing a motion to dismiss. The Plaintiff filed the FAC on May 4, 2021. On May 18, 2021, the Defendant again filed a pre-motion letter in anticipation of filing a motion to dismiss. Following the Plaintiff's response to the Defendant's pre-motion letter, the Court held a pre-motion conference on July 13, 2021. Pursuant to the briefing schedule adopted at this conference, the Defendant filed the instant Motion and supporting papers on Aug. 13, 2021. The Plaintiff filed her Opposition on Sept. 10, 2021, and the Defendant filed its Reply on Sept. 24, 2021. On Nov. 3, 2021, the Plaintiff notified the Court of persuasive authority from the U.S. District Court for the Eastern District of New York. III. Analysis The Defendant argues that (1) the Plaintiff lacks standing to seek injunctive relief; (2) the Plaintiff's GBL claims fail because no reasonable consumer would be misled by the Product's label, the label complies with federal regulations, and the Plaintiff does not plausibly plead injury; (3) the Plaintiff fails to state a claim for fraud because she has failed to adequately plead scienter; (4) the Plaintiff fails to state a claim for negligent misrepresentation because she has failed to allege the existence of a special relationship or privity with the Defendant; (5) the Plaintiff has failed to identify a specific affirmation of fact or promise that is misleading, and thus cannot state a claim for breach of express warranty; (6) the Plaintiff does not allege that the Product was unfit for human consumption, and thus fails to state a cognizable claim for breach of the implied warranty of merchantability; (7) the Plaintiff's MMWA claim fails because she has failed to state a cognizable claim for breach of an express or implied warranty; and (8) the Plaintiff's unjust enrichment claim must be dismissed as duplicative. A. Standing to Seek Injunctive Relief The Defendant argues that the Plaintiff's allegation that she "intends to, seeks to, and will purchase the product again when she can do so with the assurance that the Product's representations about its components and ingredients are consistent with its representations," fails to demonstrate that she is likely to suffer future harm, and thus, that she does not have standing to seek injunctive relief -- either personally or on behalf of the proposed class. Judge Karas agrees. He opines that because the Plaintiff allegedly is now aware that the Product is not recommended by pediatric health experts, does not offer superior nutritional value to the less-expensive whole cow's milk, and is not non-GMO, the Plaintiff cannot plausibly again be deceived by the Product's label, regardless of whether it is changed. As such, the Plaintiff cannot allege any future harm and, thus, lacks standing to seek injunctive relief. Because the Plaintiff lacks standing to pursue injunctive relief, either on her own behalf or on behalf of the proposed class, Judge Karas dismisses all claims for injunctive relief. B. New York General Business Law Sections 349 and 350 Claims Judge Karas dismisses the Plaintiff's claims based on alleged violations of GBL Sections 349 and 350. He finds that the Plaintiff has failed to plausibly allege that any portion of the Product's label is misleading. First, the Plaintiff cannot maintain a claim for violations of GBL Sections 349 and 350 based on misrepresentations regarding the Product's nutritional value as compared to whole cow's milk. Second, to the extent the Plaintiff alleges that the non-GMO graphic is misleading because the Product "contains dairy ingredients including milk and lactose, that come from cows fed GMO grains" -- and not based on any affiliation or lack thereof with the Non-GMO Project -- this claim is dismissed for failure to allege that the Plaintiff relied on this alleged misrepresentation. Lastly, the Plaintiff has failed to allege injury because she has failed to allege that she relied on any representations made on the Product's label in purchasing the Product. C. Breach of Warranty Claims The Plaintiff's claim for breach of express warranty is dismissed. Judge Karas opines that while the Plaintiff is correct that there is a "line of New York cases suggesting that the notice requirement does not apply to retail sales," the Defendant correctly points out "the exception to the notice requirement for retail consumers does not apply where, as in the case, a plaintiff alleges only economic injury." And, while the Plaintiff is correct that there is limited authority for the proposition that a plaintiff's pleadings could constitute pre-suit notice under certain circumstances, Judge Karas is persuaded by Judge Failla's reasoning in Lugones v. Pete & Gerry's Organic, LLC, 440 F.Supp.3d 226 (S.D.N.Y. 2020), in which she explained that the case from which this limited authority stems -- Panda Capital Corp. v. Kopo Int'l, Inc., 662 N.Y.S.2d 584 (App. Div. 1997) -- does not stand "for a broad rule that a filed complaint qualifies as sufficient and timely notice." The Plaintiff's claim for breach of the implied warranty of merchantability is dismissed as well. Judge Karas finds that the Plaintiff concedes that she "did not allege that the Product was unfit for human consumption," and thus, the Plaintiff concedes she has failed to allege a cognizable claim for breach of the implied warranty of merchantability. While the Plaintiff argues that she did allege that the Product was "not capable of passing without objection in the trade," since pediatric health experts advise against Transitional Formulas like the Product, the Plaintiff has provided no authority for the notion that a food product must be recommended by relevant experts to be merchantable. Indeed, the only case that the Plaintiff cites in support of this argument, Jackson v. Eddy's LI RV Ctr., Inc., 845 F.Supp.2d 523 (E.D.N.Y. 2012), concerned claims arising from the plaintiff's ownership of a motor home. Lastly, because Judge Karas has already found the Plaintiff's claims for breach of express and implied warranty to be subject to dismissal, her claim under the MMWA is similarly dismissed. D. Negligent Misrepresentation Claim The Parties appear to agree on the standard for stating a cognizable claim for negligent misrepresentation, but disagree as to whether the Plaintiff has adequately plead the existence of a "special relationship" between the Plaintiff and the Defendant. Jduge Karas dismissed the Plaintiff's claim for negligent misrepresentation. He agrees with the Defendant that the allegations are insufficient to create a special duty owed to the Plaintiff. He also agrees with the Defendant that the one case on which the Plaintiff relies for the notion that the Defendant and the Plaintiff had a special relationship, Greene v. Gerber Prods. Co., 262 F.Supp.3d 38 (E.D.N.Y. 2017), (see Pl.'s Mem. 18), presented unique circumstances not present in the case. The Plaintiff has not alleged that Defendant had any such unique expertise or scientific knowledge apart from her vague and conclusory allegation that Defendant must have had such expertise or knowledge "based on the Defendant's outsized role in the market for this type of product." E. Fraud Claim The Defendant argues that the Plaintiff's fraud claim fails because the Plaintiff has failed to allege scienter. While the Plaintiff argues in her Opposition that "the FAC exceeds particularity requirements for fraud," she does not respond to the Defendant's argument that the Plaintiff has failed to allege scienter. In the Second Circuit, a plaintiff's failure to respond to contentions raised in a motion to dismiss constitute[s] an abandonment of those claims." As such, Judge Karas finds that the Plaintiff has abandoned her scienter argument, and her fraud claim is subject to dismissal on this basis. But even if het did consider the Plaintiff's fraud claim on the merits, Judge Karas holds that it would still be subject to dismissal based on the Plaintiff's failure to adequately plead scienter. Briefly, the Defendant correctly points out that pointing to a company's general profit motive is insufficient to plead scienter. The Plaintiff also vaguely alleges that the "Defendant's fraudulent intent is evinced by its knowledge of the relevant regulations, as its misleading representations are careful to avoid glaringly prohibited statements but are still misleading." But this non-specific and conclusory allegation cannot satisfy the Plaintiff's burden to state her fraud claim with particularity. Accordingly, the Plaintiff's fraud claim is dismissed. F. Unjust Enrichment Claim While the Plaintiff's observation that "under Rule 8(e)(2) of the Federal Rules of Civil Procedure, a plaintiff may plead two or more statements of a claim, even within the same count, regardless of consistency" is correct, Judge Karas opines that it does nothing to change the Court's conclusion, particularly because the case on which the Plaintiff relies, Henry v. Daytop Vill., Inc., 42 F.3d 89, 95 (2d Cir. 1994), concerned claims of race and gender discrimination, not products liability or unjust enrichment. Accordingly, the Plaintiff's claim for unjust enrichment is dismissed. IV. Conclusion For the reasons he stated, Judge Karas granted the Defendant's Motion. The Clerk of Court is respectfully directed to terminate the pending motion. Because it is the first adjudication of the Plaintiff's claims on the merits, dismissal of the Plaintiff's claims is without prejudice. The one exception is the Plaintiff's claim for injunctive relief, which is dismissed with prejudice. To the extent the Plaintiff has a good faith basis for filing a second amended complaint, she must do so within 30 days of the date of the Opinion & Order. Failure to properly and timely amend will result in dismissal of these claims with prejudice. A full-text copy of the Court's March 18, 2022 Opinion & Order is available at https://tinyurl.com/278z5m7f from Leagle.com. Spencer Sheehan, Esq. -- spencer@spencersheehan.com -- Sheehan & Associates, P.C., in Great Neck, New York, Counsel for the Plaintiff. Paul Garrity, Esq. -- pgarrity@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton LLP, in New York City, Counsel for the Defendant. TELEFONAKTIEBOLAGET LM: CEO, CFO Sued Over Alleged Corruption ------------------------------------------------------------- fiercewireless.com reports that Ericsson, which has been under scrutiny since February for potential bribery payments to the ISIS terror organization, is now facing a U.S. class action lawsuit. On March 3, Ericsson's CEO Borje Ekholm and CFO Carl Mellander were named as defendants in the lawsuit. The class action lawsuit alleges that Ericsson paid bribes to ISIS in order to gain access to certain transport routes in Iraq. The U.S. Department of Justice stated on March 1 that Ericsson violated its 2019 deferred prosecution agreement (DPA) by failing to fully disclose details of the company's operations in Iraq between 2011 and 2019. The DoJ also deemed Ericsson's internal investigation regarding its activities in Iraq insufficient. In 2019, Ericsson paid over $1 billion in penalties for the company's involvement in multiple cases of bribery and corruption in multiple foreign countries. The DoJ notified Ericsson of a prior DPA breach last October 2021. Cevian Capital, Europe's largest activist investor, is calling for an overhaul in Ericsson's corporate governance. "Inferior corporate governance of Ericsson is costing shareholders $14 billion," Cevian co-founder Christer Gardell told the Financial Times. Gardell argued that Investor and Industrivarden, Ericsson's two largest traditional investors, hold a disproportionate amount of voting power over the other company shareholders. Ekholm informed Swedish press on February 16 that it had yet to determine the recipients of expenses dating back to 2018 and that the company was using "considerable resources" to resolve the situation. Following Ekholm's statement, Ericsson's shares dropped by nearly 15%. The International Consortium of Investigative Journalists(ICIJ) published a report on February 27 unveiling Ericsson's alleged dealings with ISIS in Iraq, claiming that Ericsson made "tens of millions of dollars in suspicious payments" for the past decade to maintain its business relations in the country. Ericsson shares are now at risk of becoming "uninvestable," according to Citibank analysts, while the DoJ proceeds with its investigation. Ericsson has had "significant control failures in the past" with managing suspicious expense claims and activities, Ekholm said in a media conference call on March 2. The company reported over 2,000 compliance concerns in the past year, compared to only 145 reports in 2016. While the increased number of allegations indicates progress in reporting unusual activity, Ekholm added that further internal discussion within Ericsson is necessary to "drive commitment to compliance." [GN] TIRAMISU RESTAURANT: Fails to Provide Overtime Wages, Mauricio Says ------------------------------------------------------------------- JUAN LOPEZ MAURICIO, individually, and on behalf of all others similarly situated v. TIRAMISU RESTAURANT, LLC, SAID VEDAD and KAREN VEDAD, Case No. 1:22-cv-02500 (S.D.N.Y., March 28, 2022) alleges seeks redress against the Defendants for systematic and class-wide failure to provide overtime wages, spread of hour wages, and for the failure to provide Plaintiff all others similarly situated with wage payment statements and hiring wage rate notifications in violation of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff worked for Defendants at Tiramisu as a cook from February 2019 through December 24, 2021. For the majority of the Plaintiff's employment, the Plaintiff worked between 12:00 p.m. and 10:30 p.m., Thursday through Tuesday six days per week, without lunch breaks, for an approximate total of 53.5 hours per week. Irrespective of the number of hours worked per week, Plaintiff was paid at a flat weekly salary of $850.00 to $900.00 and at no time did the Plaintiff receive overtime wages, spread of hour wages, nor was Plaintiff provided with wage payment statements or an hourly rate notice at the time of hiring, the lawsuit says. In addition to working at Tiramisu, the Plaintiff additionally was assigned by the Defendants to work at Defendants' restaurant known as "Jardino", located at 1159 3rd Ave, New York, New York 10065. As a cook, Plaintiff's duties included without limitation food preparation, cooking and cleaning. The Defendants are the owners and/or operators of an Italian cuisine and pizzeria restaurant known as "Tiramisu", located at 1410 3rd Avenue, New York, New York, that has been in operation since 1989.[BN] The Plaintiff is represented by: Matthew Madzelan, Esq. BELL LAW GROUP, PLLC 116 Jackson Avenue Syosset, NY 11791 Telephone: (516) 280-3008 E-mail: Matthew.M@Belllg.com TOTALENERGIES SE: Court Junks Gas Trading Suit ---------------------------------------------- TotalEnergies SE disclosed in its Form 10-K Report for the quarterly period ended December 31, 2021, filed with the Securities and Exchange Commission on March 25, 2022, that a class action, launched to seek damages from TotalEnergies Gas & Power North America, Inc. (TGPNA), a US subsidiary of TotalEnergies, and TotalEnergies Gas & Power Ltd. was dismissed by the US District Court of New York on June 8, 2020 and this judgment was confirmed on appeal by a ruling issued on December 3, 2021. The Office of Enforcement of the US Federal Energy Regulatory Commission (FERC) began in 2015 an investigation in connection with the natural gas trading activities of TGPNA. The investigation covered transactions made by TGPNA between June 2009 and June 2012 on the natural gas market. TGPNA received a Notice of Alleged Violations from FERC on September 21, 2015. On April 28, 2016, FERC issued an order to show cause to TGPNA and two of its former employees regarding the same facts. The case was remanded on July 15, 2021 to the FERC Administrative Judge for hearing and consideration on the merits. TotalEnergies SE is into crude petroleum and natural gas and is based in Courbevoie, France. TRANSWORLD SYSTEMS: Bid for Class Certification Stricken -------------------------------------------------------- In the class action lawsuit captioned as ESTHER HOFFMAN; SARAH DOUGLASS; ANTHONY KIM; and IL KIM and DARIA KIM, husband and wife and the marital community comprised thereof, on behalf of themselves and on behalf of others similarly situated, v. TRANSWORLD SYSTEMS INCORPORATED; PATENAUDE AND FELIX, A.P.C.; MATTHEW CHEUNG, and the marital community comprised of MATTHEW CHEUNG and JANE DOE CHEUNG; National Collegiate Student Loan Trust 2004-2; National Collegiate Student Loan Trust 2005-2; National Collegiate Student Loan Trust 2005-3; National Collegiate Student Loan Trust 2006-1; National Collegiate Student Loan Trust 2006-3; National Collegiate Student Loan Trust 2007-4, Case No. 2:18-cv-01132-TSZ (W.D. Wash.), the Hon. Judge Thomas S. Silly entered an order on deadline for plaintiffs' response to motion for summary judgment and concerning discovery and related issues as follows: 1. Any motion concerning the scope of any continuation deposition of TSI's Designated Representative should be filed by March 17, 2022, and noted for consideration on April 1, 2022. 2. The filing deadline and noting dates for TSI's Motion for Summary Judgment and responses thereto, Plaintiffs' Motion for Class Certification and responses thereto are stricken until further Order of the Court. 3. Within five days of the Court's decision on any motion concerning the continuation deposition of TSI's Designated Representative, the parties shall meet and confer to agree on a new filing deadline and noting dates for TSI's Motion for Summary Judgment and responses thereto, and Plaintiffs' Motion for Class Certification and responses thereto; for the completion of Jonathan Boyd's deposition and, if required by the Court's decision, the continuation of TSI's Designated Representative's deposition. In the event the parties cannot agree on any such dates, the Plaintiffs and Defendants shall each submit their proposals for such dates to the Court within eight days of the Court's decision. 4. All other case deadlines imposed by previous orders shall remain in full force and effect. TSI provides accounts receivable management and student loan servicing solutions. A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3LrC1op at no extra charge.[CC] The Plaintiffs are represented by: Sam Leonard, Esq. LEONARD LAW, PLLC 3614 California Ave. SW, #151 Seattle, WA 98116 Telephone: (206) 486-1176 E-mail: sam@seattledebtdefense.com - and - Guy W. Beckett, Esq. BERRY & BECKETT, PLLP 1708 Bellevue Avenue Seattle, WA 98122 Telephone: (206) 441-5444 E-mail: gbeckett@beckettlaw.com - and - Christina L. Henry, Esq. HENRY & DeGRAAFF, P.S. 119 -- 1st Ave. S., Ste. 500 Seattle, WA 98104 Telephone: (206) 330-0595 E-mail: chenry@HDM-legal.com - and - Amanda N. Martin, Esq. NORTHWEST CONSUMER LAW CENTER 936 North 34th Street, Suite 300 Seattle, WA 98103 Telephone: (206) 805-0989 E-mail: Amanda@NWCLC.org The Attorneys for Patenaude and Felix, A.P.C., and Matthew Cheung: Marc Rosenberg, Esq. LEE SMART, P.S., INC. 1800 One Convention Place 701 Pike St. Seattle, WA 98101-3929 Telephone: (206) 624-7990 E-mail: mr@leesmart.com The Attorneys for National Collegiate Student Loan Trust Defendants, are: J. Matthew Goodin, Esq. Gregory T. Casamento, Esq. R. James DeRose, III, Esq. Andrew Braunstein, Esq. LOCKE LORD LLP LOCKE LORD LLP Brookfield Place 200 Vesey St., 20th Floor New York, NY 10281-2101 E-mail: gcasamento@lockelord.com rderose@lockelord.com andrewbraunstein@lockelord.com jmgoodin@lockelord.com - and - Timothy J. Filer, Esq. FOSTER GARVEY PC 1111 Third Ave., Ste. 3000 Seattle, WA 98101 Telephone: (206) 447-4000 Attorneys for Defendant Transworld Systems Inc., are: Justin Homes, Esq. Bryan C. Shartle, Esq. SESSIONS, ISRAEL & SHARTLE 3850 N. Causeway Blvd., Ste. 200 Metairie, LA 70002-7227 Telephone: (504) 828-3700 E-mail: jhomes@sessions.legal bshartle@sessions.legal - and - James K. Schultz, Esq. 1545 Hotel Circle S., Ste. 150 San Diego, CA 92108 Telephone: (619) 758-1891 E-mail: jschultz@sessions.legal TRI-W GLOBAL: Powell Suit Seeks OT Pay for Employees Under FLSA --------------------------------------------------------------- Eric Powell and Marie Pendleton, individually and on behalf of all others similarly situated v. Tri-W Global, Inc., Case No. 6:22-cv-00112 (E.D. Tex., March 28, 2022) seeks damages for the Defendant's failure to pay Plaintiff's time and one-half the regular rate of pay for all hours worked over 40 during each seven day workweek under the Fair Labor Standards Act and the Portal-to-Portal Act. Mr. Powell Powell began working for the Defendant on or about March 1, 2021. Powell is a former employee. Powell stopped working for Defendant on or about December 15, 2021. Powell earned a day rate of approximately $350.00 per day in connection with work for Defendant. Pendleton began working for the Defendant on or about April 1, 2021. Pendleton is a former employee. Pendleton stopped working for Defendant on or about December 15, 2021. The Plaintiffs and the Collective Action Members seek all damages available under the FLSA, including back wages, liquidated damages, legal fees, costs, and post-judgment interest. Tri-W Global is a first class manufacturer of oil and gas equipment specializing in flowback, well testing, and production equipment.[BN] The Plaintiff is represented by: Ricardo J. Prieto, Esq. Melinda Arbuckle, Esq. SHELLIST LAZARZ SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Telephone: (713) 621-2277 Facsimile: (713) 621-0993 E-mail: rprieto@eeoc.net marbuckle@eeoc.net TUPELO, MS: Court Tosses Edwards Bid for Reconsideration -------------------------------------------------------- In the class action lawsuit captioned as VINCENT EDWARDS, Individually, and on behalf of all others similarly situated, v. THE CITY OF TUPELO, MISSISSIPPI, et al., Case No. 1:17-cv-00131-DMB-DAS (N.D. Miss.), the Hon. Judge Debra M. Brown entered an order denying the motion for reconsideration. Because Edwards' arguments for reconsideration do not alter the Court's determination that he failed to satisfy the excusable neglect standard so as to be granted leave to file a renewed motion for class certification after the deadline, the Court says. Over four months after the deadline set by the Court for Vincent Edwards to renew his motion for class certification, Edwards moved for leave to file such a motion based on his attorney's "medical restriction." By order issued January 11, 2022, this Court denied Edwards' motion for leave after considering the excusable neglect factors and concluding: The justification for and length of the delay weigh against a finding of excusable neglect, the risk of prejudice is neutral, and the movant's good faith weighs in favor of finding excusable neglect. Accordingly, after weighing the relevant factors, the Court determines that Edwards has not shown excusable neglect in support of his motion for leave to file a renewed motion for class certification. The Court also noted that Edwards' proposed motion for class certification violated the Local Rules and that "[this procedural deficiency is additional reason to deny the motion for leave as the Court declines to allow the filing of a document which does not comply with Local Rule requirements." On January 26, 2022, Edwards filed a motion for reconsideration pursuant to Rule 54(b) asking the Court to "reconsider its discretionary ‘good cause' and ‘excusable neglect' findings" and allow him "a last opportunity to correctly file his documents in accordance with Local Rules to correct his attorney's violation." A copy of the Court's order dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3tW0MTO at no extra charge.[CC] UHS OF TUCSON: FAA Applies in Adams Class Suit, Ariz. App. Holds ---------------------------------------------------------------- In the case, UHS OF TUCSON, LLC, A DELAWARE LIMITED LIABILITY COMPANY DBA PALO VERDE BEHAVIORAL CENTER, UNIVERSAL HEALTH SERVICES INC., A DELAWARE CORPORATION, UHS OF DELAWARE INC., A DELAWARE CORPORATION, Petitioners v. HON. D. DOUGLAS METCALF, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA, Respondent, and KIMBERLY ADAMS, ELISA ALTAMIRANO, ERIC ALVAREZ, MAUREEN BATES, JOSHUA BEALL, LARRY CASWELL II, NATHAN COHEN, KARYN DALRYMPLE, SOMA HELU, TODD HERRES, MICKIE HEWLIN, BRIDGET RINEHART, ANTONIO SOLIS, TRENT TILLMAN AND JAMIE VENTURA, Real Parties in Interest, Case Nos. 2 CA-SA 2022-0001 and 2 CA-SA 2022-0008 (Consolidated) (Ariz. App.), the Court of Appeals of Arizona, Division Two, accepts special-action jurisdiction of the Hospital's petition to review of the respondent judge's denial of their motion to compel arbitration and grants relief. I. Introduction In the consolidated special-action proceeding, petitioners UHS of Tucson LLC (doing business as Palo Verde Behavioral Health Center), Universal Health Services Inc., and UHS of Delaware Inc. (collectively, the Hospital) seek review of the respondent judge's denial of their motion to compel arbitration in the underlying class-action lawsuit brought by real parties in interest (collectively, the Employees) for unpaid compensation. The Hospital contends the respondent erred in concluding that the Federal Arbitration Act (FAA) did not apply in the case because the parties had agreed it would apply in arbitration agreements. In their separate petition for special action, the Employees seek to preserve "additional reasons" why the respondent's order should be upheld. Because it agrees with the Hospital, the Court of Appeals accepts jurisdiction of the petition for special action and grants relief. However, the Court of Appeals declines jurisdiction of the Employees' petition. II. Background In April 2020, in response to the Covid-19 pandemic, Palo Verde adopted a policy under which designated employees would receive additional compensation for each shift they worked in addition to their regular schedule during a staffing shortage. In September 2020, the Employees filed a class action against Palo Verde, alleging it had refused to pay any such compensation. The Employees filed a first amended complaint in March 2021, adding Universal Health Services Inc. and UHS of Delaware Inc. as Defendants. The Hospital filed a motion to compel arbitration, asserting the Employees had "all signed arbitration agreements requiring that all claims related to or arising out of their employment would be resolved through binding arbitration" and their claims here "all clearly related to" their employment. The respondent judge heard argument on the motion to compel arbitration in July 2021. In its August 2021 under-advisement ruling, the respondent judge denied the motion to compel arbitration. Relying on Arkansas Diagnostic Center, P.A. v. Tahiri, 257 S.W.3d 884 (Ark. 2007), and Shield Security & Patrol LLC v. Lionheart Security & Consulting LLC, No. 1 CA-CV 16-0678 (Ariz. App. Oct. 31, 2017) (mem. decision), the respondent explained, "By its plain terms, the FAA does not apply because a party to the contract is engaged in interstate commerce, but rather because the contract in dispute evidences a transaction involving commerce." The respondent further reasoned that the Hospital had failed to establish that the "employment contracts evidence a transaction involving commerce." To "avoid piecemeal litigation," the respondent also addressed the other issues raised by the parties, rejecting the Employees' additional defenses against enforcement of the arbitration agreements. The Hospital filed a timely notice of appeal. However, the Court of Appeals dismissed the appeal for lack of jurisdiction -- "without prejudice to the Hospital to file a petition for special action" -- because it involved an interlocutory order, citing Adams v. UHS of Tucson, No. 2 CA-CV 2021-0120 (Ariz. App. Dec. 2, 2021) (order). The Hospital then filed the petition for special action. After briefing on the Hospital's petition was complete, the Employees filed their own petition for special action, seeking to preserve "additional reasons" that the respondent judge's denial of the motion to compel arbitration should be upheld. The Court of Appeals declines jurisdiction of the Employees' petition. Special-action jurisdiction is appropriate when a party has no "equally plain, speedy, and adequate remedy by appeal," and when the issue raised is a pure question of law and matter of first impression. As the Court of Appeals explained in the prior attempted appeal, the Hospital has no adequate remedy by appeal from the denial of its motion to compel arbitration. In addition, the primary issue presented here is a question of law -- whether the FAA applies -- that "requires neither factual review nor interpretation." And there appears to be no published Arizona case directly on point. The Court of Appeals therefore exercises its discretion and accepts special-action jurisdiction. III. Discussion The issue in the special action is whether the arbitration agreements are enforceable under the FAA. In part, the FAA provides: "A written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction will be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. The FAA preempts state law and governs all agreements involving interstate commerce, including arbitration agreements in employment contracts. The Hospital points out that the arbitration agreements in the case state, "This agreement is governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq., and evidences a transaction involving commerce." It therefore reasons that "the parties have already agreed the FAA applies and the agreement involves commerce" and this "alone" is sufficient to support application of the FAA in the case. The respondent judge seemingly rejected this argument in the under-advisement ruling. In their response to the petition for review, the Employees similarly assert that the Hospital's failure to raise below the issue of whether "the arbitration agreements' incorporation of the FAA is enough" renders it waived before the Court of Appeals. The Court of Appeals finds that the plain language of the arbitration agreements in the case unambiguously provides that they are governed by the FAA and involve interstate commerce. It must therefore give effect to this clear intention of the parties. Accordingly, the FAA applies, and the respondent judge erred as a matter of law in concluding otherwise. The respondent judge also concluded the Employees' claims in the class action are covered by the arbitration agreements and rejected the Employees' other defenses against enforcement of the arbitration agreements. Consequently, as the Hospital maintains, the respondent was required to grant the motion to compel arbitration. The Court of Appeals therefore reverses the August 2021 under-advisement ruling and remand the case for proceedings consistent with this decision. Finally, the Hospital and the Employees have requested their attorney fees and costs incurred in this special-action proceeding. The Hospital relies on A.R.S. Section 12-341, 12-341.01, while the Employees cite A.R.S. Section 12-341, 12-341.01, 12-349, 12-2106. The Court of Appeals denies the Employees' request because they are not the prevailing party. In its discretion, the Court of Appeals also denies the Hospital's request for attorney fees. However, the Hospital is entitled to its costs upon compliance with Rule 21, Ariz. R. Civ. App. P. IV. Disposition For the foregoing reasons, the Court of Appeals accepts special-action jurisdiction of the Hospital's petition and grants relief. It declines jurisdiction of the Employees' petition for special action. A full-text copy of the Court's March 18, 2022 Memorandum Decision is available at https://tinyurl.com/3f7jyffw from Leagle.com. Littler Mendelson P.C., Phoenix, By Kristy L. Peters -- kpeters@littler.com -- and Lewis Brisbois Bisgaard & Smith LLP, Phoenix, By Erica K. Rocush -- Erica.Rocush@lewisbrisbois.com -- Counsel for the Petitioners. Gammage & Burnham PLC, Phoenix, By David A. Selden -- dselden@messner.com -- Julie A. Pace, and Daniel L. Marks, Counsel for the Real Parties in Interest. UNITED STATES: HBA Seeks Deadline Extension to File Class Cert Bid ------------------------------------------------------------------ In the class action lawsuit captioned as HAITIAN BRIDGE ALLIANCE et al., v. JOSEPH R. BIDEN et al., Case No. 1:21-cv-03317-EGS (D.D.C.), the Plaintiffs pursuant to Federal Rule of Civil Procedure 6(b)(1), asks a deadline extension to seek class certification until 90 days after a Local Civil Rule 16.3 scheduling conference is held or, if only Administrative Procedure Act claims remain following a decision on the Defendants' Motion to Dismiss, 90 days after the Court's decision on the Defendants' Motion to Dismiss. Defendants do not oppose this Motion. On December 20, 2021, the Plaintiffs filed the Complaint in this action. On January 13, 2022, Summons and Complaint were delivered to the U.S. Attorney's Office for the District of Columbia. Pursuant to Local Civil Rule 23.1(b), the Plaintiffs must move for class certification within 90 days of filing the complaint. Under Federal Rule of Civil Procedure 6(a)(1), the deadline for Plaintiffs to move for class certification is thus currently March 21, 2022. A copy of the Plaintiffs' motion dated March 16, 2022 is available from PacerMonitor.com at https://bit.ly/3LFmqlg at no extra charge.[CC] The Plaintiffs are represented by: Esther H. Sung, Esq. Karen C. Tumlin, Esq. Jane Bentrott, Esq. Lauren Wilfong, Esq. JUSTICE ACTION CENTER P.O. Box 27280 Los Angeles, CA 90027 Telephone: (323) 316-0944 Facsimile: (323) 450-7276 E-mail: karen.tumlin@justiceactioncenter.org esther.sung@justiceactioncenter.org jane.bentrott@justiceactioncenter.org lauren.wilfong@justiceactioncenter.org - and - Stephen Manning, Esq. Tess Hellgren, Esq. INNOVATION LAW LAB 333 SW Fifth Avenue #200 Portland, OR 97204 Telephone: (503) 922-3042 Facsimile: (503) 882-0281 E-mail: stephen@innovationlawlab.org tess@innovationlawlab.org - and - Nicole Phillips, Esq. HAITIAN BRIDGE ALLIANCE 4265 Fairmount Avenue, Suite 280 San Diego, CA 92105 Telephone: (949) 603-5751 E-mail: nphillips@haitianbridge.org UNITED SURGICAL: Texas Court Grants Bid to Dismiss Perkins Suit --------------------------------------------------------------- Judge Brantley Starr of the U.S. District Court for the Northern District of Texas grants the Defendants' motion to dismiss the lawsuit entitled AMANDA PERKINS; HEATHER C HOLST; TERRY J WILLAMS; TANYA C STANDIFER; and KARLEY MAYHILL, Plaintiffs v. UNITED SURGICAL PARTNERS INTERNATIONAL INC; THE BOARD OF DIRECTORS OF UNITED SURGICAL PARTNERS INTERNATIONAL INC; THE RETIREMENT PLAN ADMINISTRATION COMMITTEE OF UNITED SURGICAL PARTNERS INTERNATIONAL INC; and JOHN DOES 1-30, Defendants, Civil Action No. 3:21-CV-00973-X (N.D. Tex.). The Defendants moved to dismiss the lawsuit for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure and for lack of standing under Rule 12(b)(1). I. Background The lawsuit is a putative class action suit for breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA). The Plaintiffs are five former employees of United Surgical who previously participated in the now terminated United Surgical 401(k) Plan (the Plan). The Plan merged into the Tenet Healthcare Corporation 401(k) Retirement Savings Plan effective Jan. 1, 2019. All participant account balances were transferred to the Tenet Plan, and the United Surgical Plan ceased to exist. So, the Plaintiffs assert claims solely with respect to administration of the United Surgical Plan between April 15, 2015, and Dec. 31, 2018 (the class period). United Surgical was the Plan sponsor and named fiduciary during this period. Acting through its Board of Directors, United Surgical appointed the Retirement Plan Administration Committee of United Surgical Partners International, Inc. to, among other things, ensure that the investments available to the Plan participants were appropriate, had no more expense than reasonable, and performed well as compared to their peers. The Plan at issue is a defined-contribution plan, which "provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participant's account." Unlike a defined-benefit plan, each participant has discretion to direct his or her plan contributions to one or more investment options in a lineup chosen by the plan's fiduciaries. Each participant's account value fluctuates with changes in the value of the investment chosen by the participant. The Plaintiffs bring two counts against the Defendants: breach of the fiduciary duty of prudence against the Committee and failure to adequately monitor other fiduciaries against the Board of Directors and United Surgical. Count one of the complaint alleges that the Committee breached its fiduciary duty of prudence in three ways: "(1) failing to objectively and adequately review the Plan's investment portfolio with due care to ensure that each investment option was prudent in terms of cost; and (2) maintaining certain funds in the Plan despite the availability of identical or similar investment options with lower costs and/or better performance histories; and (3) failing to control the Plan's administrative and recordkeeping costs." Count two of the complaint alleges that the Board of Directors and United Surgical had a duty to monitor the Committee and ensure the Committee was adequately performing its fiduciary obligations. The Plaintiffs allege that the Board and United Surgical breached this duty by failing to monitor and evaluate the performance of the Committee; failing to monitor the process by which the Plan's investments were evaluated and failing to investigate the availability of identical lower-cost funds; and failing to remove the Committee as a fiduciary whose performance was inadequate. The Defendants moved to dismiss the Plaintiffs' complaint in its entirety for three reasons: (1) the Plaintiffs fail to state a claim for breach of the duty of prudence and the breach of the duty to monitor; (2) the Plaintiffs lack Article III standing; and (3) the Plaintiffs cannot support claims of liability against the Board of Directors or individual doe Defendants II. Analysis A. Standing The Defendants challenge the Plaintiffs' Article III standing to seek prospective relief, to challenge funds in which they never invested, and to challenge revenue-sharing fee agreements. In response, the Plaintiffs make two arguments. First, they argue that they have established individual standing by alleging that they have invested in the "Plan investments which are the subject of this lawsuit." Second, they argue that because this is a derivative action under section 1132(a)(2), they have standing to "seek relief that sweeps beyond their own injury" and can therefore seek recovery on behalf of the entire plan, even if they did not personally invest in every one of the funds that caused injury. Judge Starr finds the Plaintiffs' allegations conclusory. By failing to allege injury to their own investment accounts or their investment in of any of the challenged funds, the Plaintiffs have alleged an injury to the Plan and participants generally, but not to the individual plaintiffs themselves. The Plaintiffs also make no allegations that the revenue sharing fees are charged to all participants, regardless of which funds they invested in. Therefore, Judge Starr cannot conclude that the Plaintiffs have properly alleged an injury from revenue sharing. For these reasons, Judge Starr grants the Defendants' Rule 12(b)(1) motion as to the Plaintiffs' claim for prospective relief and as to the Plaintiffs' standing to challenge certain funds and revenue sharing fees as the basis for an alleged breach of fiduciary duty. But he believes the Plaintiffs may be able to establish standing by alleging the requisite facts for each element. Therefore, he dismisses the Plaintiffs' claim without prejudice. Within 28 days of the Order, the Plaintiffs may file an amended complaint addressing the deficiencies outlined. B. Failure to State a Claim Judge Starr next turns to the Defendants' Rule 12(b)(6) arguments. The Defendants argue that the Plaintiffs have failed to state a claim for the breach of the duty of prudence and the duty to monitor. The breach of duty to monitor claim is derivative of the breach of the duty of prudence claim, so Judge Starr addresses the breach of the duty of prudence claim first. 1. Count One: Duty of Prudence The Defendants challenge the Plaintiffs' remaining allegations on the breach of duty of prudence on two grounds: (1) the Plaintiffs' allegations concerning the cost of the Plan's investment options do not support an imprudence claim and (2) their allegations that defendants charged excessive administrative fees are conclusory and do not support an imprudence claim. Judge Starr agrees with the Defendants that the Plaintiffs have failed to plead sufficient factual allegations about the Plan's offered services and fee structures for the Court to infer more than a possibility of misconduct. He grants the motion on this ground. But because the Plaintiffs may be able to cure these deficiencies with an amended complaint, he grants them 28 days to do so. 2. Count Two: Duty to Monitor Finally, the Defendants argue that the Plaintiffs cannot support claims of liability against the Board of Directors or the individual doe defendants for a breach of the duty to monitor. They argue that first, under Texas law the Board is not an entity that can be sued separate and apart from the corporation it serves, and second, the individual corporate directors cannot be held liable under Fifth Circuit precedent. As to the doe Defendants, Judge Starr agrees with the Defendants. The Fifth Circuit has "never recognized a theory of ERISA fiduciary liability" that holds corporate directors personally liable for failing to monitor fiduciaries appointed by the directors." Therefore, he grants the motion as to the doe Defendants. Judge Starr also need not address whether the Board has capacity to be sued under Texas law because under the same logic in dismissing the doe Defendants, the Board of Directors should also be dismissed. In any event, he says, the Plaintiffs have also sued United Surgical -- a party that has capacity to be sued -- for breach of the duty to monitor. United Surgical acts through its Board of Directors, so any separate claim against the Board is duplicative. III. Conclusion Judge Starr granted the Defendants' motion to dismiss. Because the deficiencies outlined in the Order could possibly be cured by amendment, the Plaintiffs may amend their complaint within 28 days of the Order. Leave to amend does not extend to the Plaintiffs' request for injunctive relief or to their claims against the Board or the doe Defendants. The Plaintiffs may make no other changes than the ones the Order addresses. A full-text copy of the Court's March 18, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2zwwzbes from Leagle.com. UNIVERSITY OF KENTUCKY: Niblock Bid for Class Status Partly Granted ------------------------------------------------------------------- In the class action lawsuit captioned as Niblock, et al., v. University of Kentucky, et al., Case No. 1:19-cv-01042-TSB (S.D. Ohio), the Hon. Judge Karen Caldwell entered an order: 1. granting in part amended motion for class certification; 2. certifying the following class seeking injunctive and declaratory relief pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: "All present and future female students at the University of Kentucky (UK) who are harmed by and seek change of UK’s allocation of athletic participation opportunities for female students;" 3. appointing Ala Hassan as class representative; and 4. appointing Jill Zwagerman, Lori Bullock, and Barbara Bonar as class counsel pursuant to Federal Rule of Civil Procedure 23(g). Elizabeth Niblock, the sole named Plaintiff in the original motion for class certification, was a University of Kentucky student interested in lacrosse and field hockey that graduated in July 2021. The other Plaintiff named in the amended motion for class certification, Ala Hassan, is a current UK student that claims to be interested in joining a varsity lacrosse team if UK started one. The Plaintiffs assert that UK discriminates against female students on the basis of sex by providing them fewer and poorer opportunities in sports than male students in violation of the Equal Athletic Participation Opportunity requirements of Title IX of the Education Amendments of 1972. A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3tSHcYH at no extra charge.[CC] UPFIELD US INC: Ledezma Sues Over Mislabeled Vegetable Oil Spread ----------------------------------------------------------------- CASSANDRA LEDEZMA, individually and on behalf of all others similarly situated, Plaintiff v. UPFIELD US INC., Case No. 1:22-cv-01618 (N.D. Ill., March 28, 2022) alleges that the defendant markets and sells mislabeled vegetable oil spread and misrepresented as made "With Olive Oil" under the I Can't Believe It's Not Butter! ("ICBINB") brand. According to the Plaintiff in the complaint, by representing the Product as made "With Olive Oil," with pictures of olive ingredients, across green label statements and packaging, touting "Simple Ingredients," and references to nutritional properties associated with olive oil, through statements, "Good Fats From Plant-Based Oils," and "Contains Omega-3 ALA*," "Simple Ingredients," consumers expect it will contain a significant, non-de minimis amount of olive oil, in relative and absolute amounts to all oils used. However, the ingredient list reveals the Product allegedly contains a de minimis amount of olive oil in relative and absolute amounts to all oils used. The Plaintiff would not have purchased the Product if she knew the representations and omissions were false and misleading or would have paid less for it. UPFIELD USA CORP. operates manufactures and produces food ingredients. [BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Telephone: (516) 268-7080 Email: spencer@spencersheehan.com VARIABLE ANNUITY: D.L. Markham ERISA Suit Transferred to S.D. Tex. ------------------------------------------------------------------ The case styled D.L. MARKHAM, DDS, MSD, INC. 401(K) PLAN and D.L. MARKHAM, DDS, MSD, INC., on behalf of themselves and all others similarly situated v. THE VARIABLE ANNUITY LIFE INSURANCE COMPANY (VALIC); VALIC FINANCIAL ADVISORS, INC.; and VALIC RETIREMENT SERVICES COMPANY, Case No. 2:21-cv-00007, was transferred from the U.S. District Court for the Eastern District of California to the U.S. District Court for the Southern District of Texas on March 25, 2022. The Clerk of Court for the Southern District of Texas assigned Case No. 4:22-cv-00974 to the proceeding. The case arises from the Defendants' retention of a surrender fee of $20,703 from D.L. Markham, DDS, MSD, Inc. 401(K) Plan's account balances following the transfer of the Plan's assets from the Defendants' platform to the successor service provider's platform. The furnishing of services to a plan by VALIC, a party-in-interest with respect to the plan, constitutes a prohibited transaction under the Employee Retirement Income Security Act of 1974. D.L. Markham, DDS, MSD, Inc. is a dental practice located in Auburn, California. The Variable Annuity Life Insurance Company (VALIC) is an insurance corporation headquartered in Houston, Texas. VALIC Financial Advisors, Inc. is a subsidiary of The Variable Annuity Life Insurance Company. VALIC Retirement Services Company is a subsidiary of The Variable Annuity Life Insurance Company. [BN] The Plaintiffs are represented by: Chris Baker, Esq. Mike Curtis, Esq. BAKER CURTIS & SCHWARTZ, P.C. 1 California Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 433-1064 Facsimile: (415) 366-2525 E-mail: cbaker@bakerlp.com mcurtis@bakerlp.com - and – David Crutcher, Esq. 790 Mission Avenue San Rafael, CA 94901 E-mail: david@crutcherlaw.com VERTIV HOLDINGS: Gainey McKenna Reminds of May 23 Deadline ---------------------------------------------------------- Gainey McKenna & Egleston announces that a class action lawsuit has been filed against Vertiv Holdings Co ("Vertiv" or the "Company") (NYSE: VRT) in the United States District Court for the Southern District of New York on behalf of investors who purchased Vertiv stock between April 28, 2021 and February 23, 2022, inclusive (the "Class Period"). The Complaint alleges that Defendants made false and misleading statements and failed to disclose that: (i) Vertiv could not adequately respond to supply chain issues and inflation by increasing its prices; (ii) as a result of the increasing costs, Vertiv's earnings would be adversely impacted; and (iii) consequently, Defendants' positive statements about Vertiv's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On February 23, 2022, Vertiv reported disappointing financial results, including $0.06 earnings per share for fourth quarter 2021, missing analyst estimates of $0.28 per share. Vertiv's Chief Executive Officer attributed the poor results to management "consistently underestimat[ing] inflation and supply chain constraints for both timing and degree, which dictated a tepid 2021 pricing response." On this news, the price of Vertiv stock declined by approximately 37%, damaging investors. Investors who purchased or otherwise acquired shares of Vertiv should contact the Firm prior to the May 23, 2022 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] VERTIV HOLDINGS: Robbins Geller Reminds of May 23 Deadline ---------------------------------------------------------- Robbins Geller Rudman & Dowd LLP announces that purchasers of Vertiv Holdings Co (NYSE: VRT) securities between April 28, 2021 and February 23, 2022, inclusive (the "Class Period") have until May 23, 2022 to seek appointment as lead plaintiff in Vinings v. Vertiv Holdings Co, No. 22-cv-02416 (S.D.N.Y.). The Vertiv class action lawsuit charges Vertiv as well as certain of its top executive officers with violations of the Securities Exchange Act of 1934. If you suffered significant losses and wish to serve as lead plaintiff of the Vertiv class action lawsuit, please provide your information by clicking here. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the Vertiv class action lawsuit must be filed with the court no later than May 23, 2022. CASE ALLEGATIONS: Vertiv purports to be a "global leader in the design, manufacturing and servicing of critical digital infrastructure technology that powers, cools, deploys, secures and maintains electronics that process, store and transmit data." The Vertiv class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) Vertiv could not adequately respond to supply chain issues and inflation by increasing its prices; (ii) as a result of the increasing costs, Vertiv's earnings would be adversely impacted; and (iii) consequently, defendants' positive statements about Vertiv's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On February 23, 2022, Vertiv reported disappointing financial results, including $0.06 earnings per share for fourth quarter 2021, missing analyst estimates of $0.28 per share. Vertiv's Chief Executive Officer attributed the poor results to management "consistently underestimat[ing] inflation and supply chain constraints for both timing and degree, which dictated a tepid 2021 pricing response." On this news, the price of Vertiv stock declined by approximately 37%, damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Vertiv securities during the Class Period to seek appointment as lead plaintiff in the Vertiv class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class action lawsuit. An investor's ability to share in any potential future recovery of the class action lawsuit is not dependent upon serving as lead plaintiff. ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: Robbins Geller Rudman & Dowd LLP is one of the world's leading complex class action firms representing plaintiffs in securities fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class Action Services Top 50 Report for recovering nearly $2 billion for investors last year alone - more than triple the amount recovered by any other plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller's attorneys have obtained many of the largest securities class action recoveries in history, including the largest securities class action recovery ever - $7.2 billion - in In re Enron Corp. Sec. Litig. Please visit http://www.rgrdlaw.comfor more information. [GN] VIACOMCBS INC: Court Resets Case Schedule in DeRosa Class Suit -------------------------------------------------------------- In the class action lawsuit captioned as Sara DeRosa v. ViacomCBS, Inc. et al., Case No. 2:20-cv-02965-MCS-GJS (C.D. Cal.), the Hon. Judge Mark C. Scarci entered an order granting in part and denying in part the parties' stipulation to continue the class certification motion briefing and hearing schedule by over four months. The Court resets the case schedule as follows: Event Old Date New Date Deadline to File Motion May 2, 2022 June 6, 2022 for Class Certification: Deadline to File an May 25, 2022 June 27, 2022 Opposition to the Motion for Class Certification: Deadline to File a Reply: June 17, 2022 July 18, 2022 Hearing Date on Motion June 27, 2022 Aug. 1, 2022 for Class Certification: No further extensions will be granted absent an extraordinary showing of good cause supported by a detailed declaration of counsel stating what class discovery remains outstanding, why that discovery must be completed before submission of class certification briefs, and when the parties anticipate that discovery to be completed. The Court said, "The parties fail to establish why such a long extension of time is appropriate. First, the stipulation does not elucidate why it took nearly half a year from Magistrate Judge Standish's approval of a stipulation regarding the privacy notice to generate the protocol for and issue the notice. Second, the parties do not indicate why they need more than five months to complete class discovery and prepare a class certification motion after the claims administrator finalizes the list of non-objectors. Third, this case is one of the oldest cases on the Court's docket. The Court already has extended class certification dates by over three months." The Court endeavors to bring all cases to trial within 18 months of filing. This case already is nearly two years old, and the parties' proposed schedule would require the Court to set the case for trial about three years after it was filed. The Court doubts that the parties' proposed schedule would facilitate the "just, speedy, and inexpensive determination" of the case. At best, the parties have presented cause for a much shorter continuance, the Court adds. Paramount Global is an American diversified multinational mass media and entertainment conglomerate corporation operated and owned by theater company National Amusements and headquartered at the One Astor Plaza complex in Midtown Manhattan, New York City. A copy of the Court's order dated March 11, 2022 is available from PacerMonitor.com at https://bit.ly/36Acz1m at no extra charge.[CC] VIVINT INC: Extension to File Class Cert Reply Sought ----------------------------------------------------- In the class action lawsuit captioned as CRAIG CUNNINGHAM and ANDREW PERRONG, on behalf of themselves and others similarly situated, v. VIVINT, INC. and DSI DISTRIBUTING, INC. d.b.a. DSI SYSTEMS, Case No. 2:19-cv-00568-DBB-CMR (D. Utah), the Plaintiffs asks the Court to enter an order extending the deadline for filing a reply in support of Plaintiffs' motion for class certification. Defendants Vivint, Inc. and DSI Distributing, Inc. filed their Oppositions to Plaintiffs' Motion on March 7, 2022 and March 14, 2022, respectively. The Plaintiffs intend to file one consolidated reply brief in response to Defendants' Oppositions and, due to the Plaintiffs' counsel's professional and personal schedules and commitments to other cases, require additional time to prepare the appropriate consolidated reply brief. Accordingly, the Plaintiffs request that the deadline for filing their consolidated reply be extended up to and including April 11, 2022. Defendants Vivint, Inc. and DSI Distributing, Inc. have been contacted and have agreed to the requested extension. Vivint provides smart home products and services. A copy of the Plaintiffs' motion to certify class dated March 16, 2022 is available from PacerMonitor.com at https://bit.ly/3NWmgYW at no extra charge.[CC] The Plaintiffs are represented by: Brian K. Murphy, Esq. Jonathan P. Misny, Esq. MURRAY MURPHY MOUL + BASIL LLP 1114 Dublin Road Columbus, OH 43215 Telephone: (614) 488-0400 Facsimile: (614) 488-0401 E-mail: murphy@mmmb.com misny@mmmb.com - and - Anthony I. Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln Street, Suite 2400 Hingham, MA 02043 Telephone: (508) 221-1510 E-mail: anthony@paronichlaw.com - and - Jared B. Pearson, Esq. PEARSON LAW FIRM, PLLC 9192 South 300 West, Suite 35 Sandy, UT 84070 Telephone: (801) 888-0991 E-mail: jared@pearsonlawfirm.org VIVINT INC: Seeks Denial of Cunningham Class Certification Bid -------------------------------------------------------------- In the class action lawsuit captioned as CRAIG CUNNINGHAM, ROBERT HOSSFELD and ANDREW PERRONG, on behalf of themselves and others similarly situated, v. VIVINT, INC. and DSI DISTRIBUTING, INC. d.b.a. DSI SYSTEMS, Case No. 2:19-cv-00568-DBB-CMR (D. Utah), DSI asks the Court to enter an order denying the Plaintiffs class certification. The Plaintiffs did not timely move for certification. They have not produced evidence sufficient to define a class, and they do not properly represent a class. They do not meet the class requirements set forth in Rule 23(a), the the Court should deny class certification to Plaintiffs on their claims against DS, the Defendant contends. DSI moves the Court to deny class certification to Andrew Perrong and Craig Cunningham specifically with regard to DSI in this putative class action lawsuit brought pursuant to the Telephone Consumer Protection Act (TCPA). The Plaintiffs have not timely moved for class certification in accordance with Fed. R. Civ. P. 23 and the 90-day requirement of DUCivR 23-1, as the original Complaint was filed on August 14, 2019 and class discovery was completed by July 14, 2021. Vivint is a public smart home company in the United States and Canada. DSI distributes satellite and consumer electronic equipment. A copy of the Defendant's motion dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3ITJbjP at no extra charge.[CC] The Defendant is represented by: Stephen K. Christiansen, Esq. Kathleen M. Liuzzi, Esq. CHRISTIANSEN LAW, PLLC 311 South State Street, Ste. 250 Salt Lake City, UT 84111 Telephone: (801) 716-7016 Facsimile: (801) 716-7017 E-mail: steve@skclawfirm.com kathe@skclawfirm.com VIVINT SOLAR: Court Grants Dekker's Bid for Class Certification --------------------------------------------------------------- In the case, GERRIE DEKKER, et al., Plaintiffs v. VIVINT SOLAR, INC., et al., Defendants, Case No. C 19-07918 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted the Plaintiff's motion for certification of a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure. I. Background Defendant Vivint, in its various corporate forms, installs solar panels on customers' roofs and, at least as advertised, sells those customers the low cost, clean energy produced over a twenty-year term pursuant to their "power purchase agreement" (PPA). The Plaintiff alleges, however, that Vivint's contract contains unlawful liquidated-damages clauses, provisions which impose harsh and unlawful penalties onto customers should they seek to dissolve the contract. Early on in the action, a March 2020 order compelled all but two plaintiffs to arbitration. The exceptions were Ms. Dekker, whose early version of the PPA did not contain an arbitration clause, and Mr. Bautista, who had not agreed to arbitrate, given Vivint had the native Spanish speaker, with virtually no English proficiency, sign an English-form contract after conducting negotiations in Spanish. Vivint appealed that decision, the Plaintiffs amended their complaint, and the action continued apace. Vivint, however, dropped the ball on its JAMS fee deadline, a material breach of the arbitration agreements under California's recently enacted Code of Civil Procedure Section 1281.97. So, an August 14 order vacated the March 24 order as far as it compelled select plaintiffs to arbitrate and invited those plaintiffs back into this forum. Vivint appealed this decision as well. The court of appeals decided Vivint's first appeal on Jan. 25, 2021. The order didn't answer many questions, merely dismissing the case for lack of jurisdiction. Leave to amend was granted. In June, Vivint moved for judgment on the pleadings, which was granted as to the Plaintiffs' Section 17200 claim as to unfairness based on violations of the Translation Act allegedly endured by Mr. Bautista. The Plaintiffs were permitted to amend their pleadings, and an August 11 order granted the motion for leave to amend in part but denied as futile the Plaintiffs' Section 17200 unfairness claim as to the Translation Act and further denied leave to include a restitution claim per the CLRA and Section 17200. Then, in late October, the other shoe dropped, and the court of appeals ruled on Vivint's second appeal, finding that whether Vivint's failure to pay the JAMS filing fees qualifies as a breach of the arbitration agreement fell within the scope of the PPA's delegation clause. The order compelling those relevant plaintiffs to arbitration was hence reinstated. In November, Plaintiff Bautista dropped out of the case when he settled with Vivint. Ms. Dekker became the only named Plaintiff. The Plaintiff now seeks certification of a Rule 23(b)(2) class defined as follows: "All persons in California who entered into Version 1 of the Residential Solar Power Purchase Agreement with Vivint Solar." The Plaintiff asserts a claim for violations of Civil Code Section 1671 for including liquidated damages clauses in the PPA, as well as claims under Section 17200 and the Consumer Legal Remedies Act (CLRA). Both the Section 17200 and CLRA claims are predicated on Vivint's alleged violation of Section 1671. The Plaintiff generally seeks an injunction invalidating the PPA's liquidated damages provisions. She emphasized in both the papers and at the hearing she is not seeking any classwide monetary remedies. Shortly before the class certification motion ripened, Vivint moved for partial summary judgment on three discrete issues related to the injunctive relief the Plaintiff seeks. Due to those issues comingling with those of class certification, a decision on that motion was held in abeyance until the class certification motion could be heard. That order is filed in tandem with this one. The Order follows full briefing and oral argument. II. Analysis Certification under Rule 23(b)(2) is a two-step process. A plaintiff must first show that the four prerequisites of Rule 23(a) are met: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. For a class seeking declaratory or injunctive relief under Rule 23(b)(2), a plaintiff must also establish that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Rule 23(b)(2) "applies only when a single injunction or declaratory judgment would provide relief to each member of the class." The plaintiff bears the burden of demonstrating that these requirements are met. Judge Alsup finds that (i) the Plaintiff asserts the proposed class numbers approximately 825 people which satisfies the numerosity requirement; (ii) Ms. Dekker qualifies as an adequate class representative; (iii) common questions with common answers regarding whether the default provisions constitute unenforceable liquidated damages provisions will drive the resolution of the litigation; (iv) Vivint has not adequately shown the litigation of classwide answers will be derailed by statute of limitations issues particularly unique to Ms. Dekker; and (v) the requested injunctive relief will be appropriate with respect to the class as a whole. In sum, the Plaintiff has satisfied her burden under Rule 23(b)(2). The Plaintiff objects to several paragraphs of the declaration of Colton Burr that Vivint filed in support of its opposition. She filed her objections in contravention of Civil Local Rule 7-3(c), which reads in relevant part: "Any evidentiary and procedural objections to the opposition must be contained within the reply brief or memorandum. Pursuant to Civil L.R. 7-4(b), the reply brief or memorandum may not exceed 15 pages of text." Regardless, Judge Alsup holds that his Order relied on none of the portions of the Burr declaration that the Plaintiff objects to, so the objections are denied as moot. III. Conclusion For the foregoing reasons, Judge Alsup granted the Plaintiff's motion for class certification under Rule 23(b)(2). Judge Alsup certified following class: All persons in California currently in privity of contract with Vivint Solar because they are subject to Version 1 of the Residential Solar Power Purchase Agreement. The class definition will apply for all purposes, including settlement. Plaintiff Gerrie Dekker is appointed as the class representative. The Plaintiff's counsel, Matern Law Group, PC, is appointed as the class counsel. By April 8 at noon, Vivint will submit a list of people who qualify as class members and the parties will jointly submit a proposal for class notification with a plan to distribute notice, including by first-class mail. A full-text copy of the Court's March 18, 2022 Order is available at https://tinyurl.com/y8r457y8 from Leagle.com. VIVINT SOLAR: Summary Judgment Bid in Dekker Suit Granted in Part ----------------------------------------------------------------- In the case, GERRIE DEKKER, et al., Plaintiffs v. VIVINT SOLAR, INC., et al., Defendants, Case No. C 19-07918 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendant's motion for summary judgment. I. Background Vivint, in its various corporate forms, installs solar panels on customers' roofs and, at least as advertised, sells those customers the low cost, clean energy produced over a twenty-year term pursuant to their "power purchase agreement" (PPA). The Plaintiff alleges, however, that Vivint's contract contains unlawful liquidated-damages clauses, provisions which impose harsh and unlawful penalties onto customers should they seek to dissolve the contract. Early on in the action, a March 2020 order compelled all but two plaintiffs to arbitration. The exceptions were Ms. Dekker, whose early version of the PPA did not contain an arbitration clause, and Mr. Bautista, who had not agreed to arbitrate, given Vivint had the native Spanish speaker, with virtually no English proficiency, sign an English-form contract after conducting negotiations in Spanish. Vivint appealed that decision, the Plaintiffs amended their complaint, and the action continued apace. Vivint, however, dropped the ball on its JAMS fee deadline, a material breach of the arbitration agreements under California's recently enacted Code of Civil Procedure Section 1281.97. So, an August 14 order vacated the March 24 order as far as it compelled select plaintiffs to arbitrate and invited those plaintiffs back into this forum. Vivint appealed this decision as well. The court of appeals decided Vivint's first appeal on Jan. 25, 2021. The order didn't answer many questions, merely dismissing the case for lack of jurisdiction. Leave to amend was granted. In June, Vivint moved for judgment on the pleadings, which was granted as to the Plaintiffs' Section 17200 claim as to unfairness based on violations of the Translation Act allegedly endured by Mr. Bautista. The Plaintiffs were permitted to amend their pleadings, and an August 11 order granted the motion for leave to amend in part but denied as futile the Plaintiffs' Section 17200 unfairness claim as to the Translation Act and further denied leave to include a restitution claim per California's Consumer Legal Remedies Act (CLRA) and Section 17200. Then, in late October, the other shoe dropped, and the court of appeals ruled on Vivint's second appeal, finding that whether Vivint's failure to pay the JAMS filing fees qualifies as a breach of the arbitration agreement fell within the scope of the PPA's delegation clause. The order compelling those relevant Plaintiffs to arbitration was hence reinstated. In November, Plaintiff Bautista dropped out of the case when he settled with Vivint. Ms. Dekker became the only named plaintiff. Now, Vivint seeks to narrow the issues and moves for partial summary judgment. Due to these summary judgment issues comingling with those of class certification, a decision on the motion was held in abeyance until the class certification motion could be heard. The class certification order is filed in tandem with this one. The Order follows full briefing and oral argument held telephonically due to the COVID-19 pandemic. II. Analysis Vivint moves for partial summary judgment on the Plaintiff's claim for injunctive relief premised on three grounds: (1) that an order enjoining Vivint's allegedly unfair and unlawful sales practices is now moot; (2) that the Plaintiff is not entitled to injunctive relief because she has an adequate remedy at law; and (3) that that an order enjoining Vivint from enforcing the PPA would not qualify as public injunctive relief. A. Mootness Judge Alsup first considers Vivint's contention that the Plaintiff's prayer for injunctive relief regarding Vivint's unfair or unlawful sales practices are moot. Vivint argues the Plaintiff's request for injunctive relief as to Vivint's sales practices is moot because "as of November 8, it is no longer engaged in sales practices to newly contacted consumers." On Oct. 8, 2020, Sunrun, another residential solar company, acquired Vivint. As of March 21, 2021, Vivint no longer has any employees, which all became employees of either Sunrun or Sunrun Installation Services Inc. Vivint clarifies, however, that a "small number of prospective customers who had already initiated the sales process, before November 8, may complete that process by signing a Vivint Solar PPA." Moreover, it also maintains a "Homebuilder Sales Channel" through which it works with builders to install its systems on new homes. Judge Alsup finds that as of Dec. 31, 2021, Vivint no longer "initiated the execution of any PPAs with home buyers in the Homebuilder Sales Channel. To the extent that, as of December 31, there are ongoing interactions with a homebuyer, those agreements would continue under a Vivint Solar PPA, even after December 31." So, by Vivint's own declaration, it has not conclusively stopped its sales practices. Vivint has not specified how many potential customers still remain in Vivint's sales pipeline. The issue is not moot. Vivint has not met its burden so its motion as to mootness is denied. B. Inadequate-Remedy-At-Law Doctrine Next, Vivint seeks partial summary judgment that the Plaintiff is not entitled to injunctive relief because she has an adequate remedy at law. It asserts a purely legal question premised on an August 2021 that reviewed the court of appeals' decision Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), in the context of Vivint's motion for judgment on the pleadings. Sonner held that, despite California's standard, federal courts apply traditional equitable principles pursuant to federal common law before awarding restitution. Sonner concluded that the plaintiff had not properly alleged the inadequacy of legal remedies available to her and affirmed the district court's denial of leave to add the restitution claim. Judge Alsup states that the August 2021 order explained when denying the request to add a restitution claim: The "Plaintiffs also fail to differentiate their request for restitution from their request for damages." The order did not hold that the Plaintiffs failed to adequately allege the need for all other equitable relief. It specifically granted judgment on the pleadings only as to restitution. Damages would not provide an adequate remedy for the Plaintiff, who remains subject to potential liquidated damages clauses should she try to disentangle herself from her contract with Vivint. For this, an injunction would be proper. Vivint's motion for summary judgment that the Plaintiff's equitable claim for injunctive relief fail as a matter of law is denied. C. Public Injunctive Relief Finally, Vivint argues that the Plaintiff has asserted a claim for private, rather than public, injunctive relief. In effect, Vivint's argument would limit the putative class action only to those Vivint customers whose PPAs did not contain a mandatory arbitration provision. In light of two recent opinions from the court of appeals, Judge Alsup agrees the Plaintiff only seeks private injunctive relief. Due to recent changes in Vivint's business model, he says, the Plaintiff's requested relief no longer benefits the general public as a whole. As explained, as of Dec. 31, 2021, Vivint no longer engages in any sales activities with anyone beyond those who have previously initiated negotiations. Consequently, injunctive relief would only benefit a group of individuals similarly situated to the Plaintiff. In short, Vivint's cap of sales activity downgrades the Plaintiff's claim from public to private injunctive relief. While this may not moot the Plaintiff's requested injunctive relief, it does limit the number of consumers that would benefit from a favorable ruling on the issue. In short, Vivint's motion for summary judgment that the Defendant seeks private injunctive relief is granted. III. Conclusion For these reasons, Judge Alsup granted in part and denied in part the Defendant's motion for summary judgment. The Plaintiff seeks only private injunctive relief. The Plaintiff's request for injunctive relief regarding Vivint's unfair or unlawful sales practices are not moot, and the Plaintiff's remaining claims for equitable relief may proceed because she does not have an adequate remedy at law. A full-text copy of the Court's March 18, 2022 Order is available at https://tinyurl.com/3d7btzur from Leagle.com. VOLKSWAGEN GROUP: Faces Adamson Suit Over Antitrust Violation ------------------------------------------------------------- PORTIA ADAMSON, individually and on behalf of all others similarly situated, Plaintiff v. VOLKSWAGEN GROUP OF AMERICA, INC. d/b/a AUDI OF AMERICA, INC.; VOLKSWAGEN AG; and AUDI COLORADO SPRINGS, Defendants, Case No. 1:22-cv-00740 (D. Colo., March 25, 2022) alleges violation of the Sherman Antitrust Act. The Plaintiff alleges in the complaint that the Defendants, in violation of the Sherman Antitrust Act, have acted in concert to restrict the entry of off-lease Audi automobiles into the free, open used car market by refusing to provide payoff figures to Lessees of those automobiles and by also refusing to accept third-party funds on behalf of a Lessee once a payoff figure is obtained. The Defendants' concerted action restricts used Audis' entry into the open, free market, unreasonably restrains trade, affecting both interstate and foreign commerce, added the suit. VOLKSWAGEN GROUP OF AMERICA, INC. markets and distributes automobiles and auto parts. The Company, through its subsidiary, rents, leases, and finances cars and vans. Volkswagen Group of America serves customers in the United States. [BN] The Plaintiff is represented by: Joseph A. O'Keefe, Esq. PSOK VENTURE LLC 31 N. Tejon, Ste. 400 Colorado Springs, CO 80903 Telephone: (719) 630-1556 Email: joe@psokventurellc.com VOYAGER 888: King, et al., File Bid for for Class Certification --------------------------------------------------------------- In the class action lawsuit captioned as DORA KING and SYDNEY JACOBS and MOMO JOHNSON and UNIQUE BUTLER and JADA MORALES On Behalf of Themselves and All Other Similarly Situated Individuals, v. VOYAGER 888, LLC D/B/A ASSETS GENTLEMEN'S CLUB, ET AL., Case No. 1:21-cv-00991-RMM (D.D.C.), the Plaintiffs ask the Court to enter an order: 1. Certifying the proposed Class(es) pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3); 2. Appointing Named Plaintiffs as the Class Representative for each respective Class pursuant to Federal Rule of Civil Procedure 23; 3. Appointing Named Plaintiffs’ undersigned counsel as Class Counsel for each Class pursuant to Federal Rule of Civil Procedure 23(g); and 4. Providing for such other and further relief as the Court deems just and proper. A copy of the Plaintiffs' motion to certify class dated March 15, 2022 is available from PacerMonitor.com at https://bit.ly/3uDDgdy at no extra charge.[CC] The Plaintiffs are represented by: Gregg C. Greenberg, Esq. ZIPIN, AMSTER & GREENBERG, LLC 8757 Georgia Avenue, Suite 400 Silver Spring, MD 20910 Telephone: (301) 587-9373 E-mail: GGreenberg@ZAGFirm.com WAL-MART ASSOCIATES: Seeks Extension to Oppose Class Cert Bid ------------------------------------------------------------- In the class action lawsuit captioned as CHRISTOPHER NELSON, on behalf of himself and all others similarly situated, v. WAL-MART ASSOCIATES, INC. and DOES 1 through 50, inclusive, Case No. 3:21-cv-00066-MMD-CLB (D. Nev.), the Parties ask the Court to enter an order extending the time for the Defendant to file its Opposition to Plaintiff's Motion for Conditional and Collective Class Action Certification and for the related Reply deadline: -- New deadline for filing the July 28, 2022 Motion for Fed. R. Civ. P. Rule 23 Class Certification would be: Response would be due: Nov. 9, 2022 Reply would be due: Jan. 8, 2023 The parties say that this is their third request for an extension of these deadlines. The first request was made on November 19, 2021 and granted on December 2, 2021. The second request was made on January 21, 2022 and granted on January 25, 2022. A copy of the Parties' motion dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/36YdOqX at no extra charge.[CC] The Plaintiff is represented by: Joshua D. Buck, Esq. Leah L. Jones, Esq. Joshua R. Hendrickson, Esq. THIERMAN BUCK LLP 7287 Lakeside Drive Reno, NV 89511 The Defendant is represented by: Anthony L. Martin, Esq. Dana B. Salmonson, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10801 W. Charleston Blvd., Ste. 500 Las Vegas, NV 89135 Telephone: (702) 369-6800 Facsimile: (702) 369-6888 E-mail: anthony.martin@ogletreedeakins.com dana.salmonson@ogletreedeakins.com WELCOME SKATEBOARDS: CMP & Scheduling Order Entered in Sanchez Suit ------------------------------------------------------------------- In the class action lawsuit captioned as CRISTIAN SANCHEZ v. WELCOME SKATEBOARDS INC., Case No. 1:21-cv-02598-KPF (S.D.N.Y.), the Hon. Judge Katherine Polk Failla entered a civil case management plan and scheduling order as follows: -- All fact discovery shall be completed July 5, 2022 no later than: -- All expert discovery, including Aug. 15, 2022 reports, production of underlying documents, and depositions, shall be completed no later than: -- Depositions of fact witnesses June 3, 2022 shall be completed by: A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3uKzj6G at no extra charge.[CC] WOODS GOODS: CMP & Scheduling Order Entered in Cruz Suit -------------------------------------------------------- In the class action lawsuit captioned as SHAEL CRUZ, Individually, and On Behalf of All Others Similarly Situated, v. WOODS GOODS COMPANY LLC, Case No. 1:21-cv-10047-AT (S.D.N.Y.), the Hon. Judge Analisa Torres entered a civil case management plan and scheduling order as follows: -- All fact discovery shall be July 8, 2022 completed no later than: -- Initial requests for production April 11, 2022 of documents to be served by: -- Interrogatories to be served by: April 11, 2022 -- Depositions to be completed by: July 8, 2022 -- All expert discovery shall be Aug. 22, 2022 completed no later than: -- The next Case Management July 26, 2022 Conference is scheduled for: A copy of the Court's order dated March 14, 2022 is available from PacerMonitor.com at https://bit.ly/3NABgv7 at no extra charge.[CC] ZARBEE'S INC: Faces Class Action Over Deceptive Gripe Water ----------------------------------------------------------- John O'Brien at Legal Newsline reports that a new class action lawsuit says parents who give their children Gripe Water in order to help with colic might as well be giving them regular water. None of the ingredients in Zarbee's Gripe Water have been shown to help colic in newborns, says a March 14 class action filed in San Francisco federal court by lawyers at Bursor & Fisher. At issue is the claim Gripe Water "helps ease occasional gas & stomach discomfort" associated with colic and hiccups. "However, Defendant's product does not provide effective relief for any symptoms," the suit says. "This is not surprising, as the product's main ingredients are water and organic agave syrup. "The product is nothing more than sweetened, flavored water with trace amounts of the product's touted ingredients." The lawsuit cites a study in the Journal of Clinical and Diagnostic Research that found Gripe Water ineffective for treating colic. The suit makes claims under the California Consumer Legal Remedies Act, the Unfair Competition Law and the False Advertising Law. [GN] [*] Judge Rejects Class Counsel's Payout in Lithium Battery Suit ---------------------------------------------------------------- Alison Frankel at Reuters reports that in the most comprehensive analysis of a proposed payout to a class action objector since 2018 amendments to the Federal Rules of Civil Procedure, U.S. District Judge Yvonne Gonzalez Rogers of Oakland, California, on rejected a $25,000 settlement between class counsel and a pro se objector whose appeal was delaying a $45 million distribution to class members in a long-running antitrust case. The $25,000 would have been paid directly to objector Christopher Andrews by class counsel from Cotchett, Pitre & McCarthy; Hagens Berman Sobol Shapiro; and Lieff Cabraser Heimann & Bernstein. The plaintiffs' firms had argued that the payout would speed up recovery for class members in the case -- which alleged a price-fixing cartel in the lithium ion battery market -- without costing the class itself any money. Class counsel also said the payment would compensate Andrews for his efforts as an objector, which, they said, contributed to the development of an allocation formula that directed most of the class recovery to residents of states that allow claims by end-use consumers. Plaintiffs' lawyers said they had reluctantly decided the payout served the interests of the class. "While it might be wished otherwise," wrote Adam Zapala of Cotchett in a March 7 filing, "de minimis settlements like this one are at times the best alternative in a system that can still be exploited by objectors threatening the interests of the class." The judge gave careful consideration to that argument, starting with the observation that the amended rules do not flat-out prohibit deals like the proposed payout to Andrews. As you know, the 2018 amendment addressed so-called "objector blackmail," in which class action objectors motivated by self-interest filed frivolous appeals solely to obtain side payments from class counsel. The new rule, as Rogers explained, requires trial judges to sign off when an objector drops an appeal in exchange for a payment from class counsel. For that reason alone, the judge said, the proposed Andrews settlement "is not the prototypical private payment that rightfully elicits court scrutiny." The judge acknowledged that class counsel worked with a mediator from the 9th U.S. Circuit Court of Appeals to reach the proposed settlement, which, she said, does not affect the class recovery, at least on its face. And though the Rules Advisory Committee warned judges not to approve objector settlements simply in order to speed payouts to class members, Rogers said, the lithium battery class would also benefit marginally from eliminating the tiny risk that Andrews would prevail in his appeal. But other factors, Rogers said, outweighed those rationales. The proposed $25,000 payment to Andrews was more much than the $10,000 incentive payments Rogers had approved for name plaintiffs, the judge said, and Andrews failed to document his claim to have spent 600 hours on the case. Andrews' appeal, she said, is pretty much doomed, considering that the 9th Circuit has already rejected identical arguments in a different tranche of the lithium ion battery case. Finally, Rogers said, approval of the Andrews settlement would set precedent that might encourage objectors to file doomed appeals in the hopes of obtaining a payout to drop those cases - exactly the scenario that the 2018 amendment sought to discourage. "The court is sympathetic to class counsel's efforts to reach quick and judicious resolution on appeal," the judge wrote. "While an appeal would undeniably cause some delay and increase costs to defend against an appeal, the record also suggests that the appeal lacks merit." Rogers did not rule out approval of a smaller settlement between class counsel and Andrews. I emailed Zapala of Cotchett, Elizabeth Cabraser of Lieff Cabraser and Steve Berman of Hagens Berman but didn't hear back. Andrews told me he was gratified that Rogers did not disregard his contributions to the litigation. "I don't have any objection to what she said," he told me. "I understand her thought process." Andrews said he has not heard from class counsel about a revised settlement proposal. Unless he reaches a new deal with them, he said, he will refile an appeal at the 9th Circuit. I pointed out that Rogers said his appellate arguments were nearly certain to fail. Andrews said he has written a new appellate brief, focusing on Rule 23's requirement that common issues predominate over individual questions. He said he was previously reluctant to argue a position that could overturn the $44 million settlement. Rogers' opinion, as I mentioned, is the first to provide thorough analysis of a proposed objector settlement under the amended rules. (There have been only a handful of previous rulings since the 2018 amendment, and those, Rogers said, show that "little case law has developed in reported forms.") In addition to setting out factors to consider in evaluating a proposed deal, the decision broke new ground on who can protest a proposed settlement. I told you last month that Ted Frank's Hamilton Lincoln Law Institute filed an objection to the Andrews settlement, as did another pro se objector, Shiyang Huang. Class counsel argued that neither had constitutional standing to object because class members could not allege any injury to them from a settlement to be paid entirely by class counsel. Rogers agreed, in a footnote that also concluded Huang and Frank's client were not entitled to protest the Andrews settlement under the class action rule requiring trial court approval of payments to objectors. In an email, Frank said Rogers had misread 7th Circuit precedent in 2020's Pearson v. Target Corp, which held that class members can move for a trial court to order the disgorgement of side payments by class counsel to objectors who agree to drop appeals. Overall, Frank said, Rogers reached the "right result for the wrong reason [and] seems to suggest a smaller extortion without benefit to class would be kosher." 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