/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220408.mbx C L A S S A C T I O N R E P O R T E R Friday, April 8, 2022, Vol. 24, No. 65 Headlines 99 FAVOR TASTE: Iskhakova Files ADA Suit in E.D. New York A LA MODE SHOPPE: Iskhakova Files ADA Suit in E.D. New York ABBOTT LABORATORIES: Similac Products Contain GMOs, Lopez Alleges ABSOLUTELY MARIO: Fails to Pay Proper Wages, Urrutia Alleges AKRON CHILDREN'S HOSPITAL: Lawsuit Challenges Firing of 66 Workers AMERICA OOTOYA: Hanyzkiewicz Files ADA Suit in E.D. New York BEAUMONT INDEPENDENT: Sued Over Constitutional Rights' Violations BEST CHOICE: Jaquez Files ADA Suit in S.D. New York BINANCE: Wins Dismissal of Suit Over Unregistered Crypto Tokens BIOELEMENTS INC: Lawal Files ADA Suit in S.D. New York BLANK SHIRTS: Lawal Files ADA Suit in S.D. New York BNPC LLC: Gilder Class Suit Seeks Damages for Unpaid Meal Periods BOOKING HOLDINGS: Jaquez Files ADA Suit in S.D. New York CALIFORNIA: Lawsuit Filed Against State Bar After Data Breach CELTIC INSURANCE: Court Tosses TCPA & IATDA Claims in Bennett Suit CHOCZERO INC: Mejia Files ADA Suit in S.D. New York CHRISTIANBOOK LLC: Sells Data Without Consent, Bozung Alleges CIRKUL INC: Fischler Files ADA Suit in S.D. New York CLARIFAI INC: Goodman Sues Over Misuse of Biometric Information CLEAN CITY: Faces Livingston Suit Over Unpaid Wages & Kick-Backs COMPLETELY BARE: Mejia Files ADA Suit in S.D. New York CONCIMED LLC: Fischler Files ADA Suit in S.D. New York DAVE INC: Settlement of Data Breach Suit Ongoing EASTLAND SHOE: Sanchez Files ADA Suit in S.D. New York ESSEX CLASSICS: Guerrero Files ADA Suit in S.D. New York EUGENIA KIM INC: Sanchez Files ADA Suit in S.D. New York EVANSTON, IL: Mayor Biss, Landlord Sued for Living Conditions FACETS OF TOUCH: McCary Seeks MInimum, OT Wages Under FLSA, IWPCA FAMILY DOLLAR: Distribution Center Infested With Rodents, Suit Says FARMVET.COM INC: Jaquez Files ADA Suit in S.D. New York FINANCIAL INDEMNITY: Court Refuses to Certify Class in Bhasker Suit FIRST WESTERN: Bid to Dismiss Tort Claims in Fleck Suit Denied FRED ASTAIRE DANCE: Williams Files ADA Suit in S.D. New York FRESHLY PICKED: Sanchez Files ADA Suit in S.D. New York FULLBEAUTY BRANDS: Lawal Files ADA Suit in S.D. New York GANNETT CO: Sells Private Data Without Consent, Batts Alleges GEICO ADVANTAGE: Murphy Suit Removed to E.D. Pennsylvania GEOVERA SPECIALTY: Court Denies Bid to Dismiss Alexander Suit GRAYL INC: Tavarez-Vargas Files ADA Suit in S.D. New York GREY DOG: Fails to Pay Minimum, OT Wages, Jerez Class Suit Alleges H&R ACCOUNTS INC: Powell Files TCPA Suit in D. South Carolina HEALTH PLUS: Jaquez Files ADA Suit in S.D. New York HOMOLOGY MEDICINES: Bronstein Gewirtz Reminds of May 24 Deadline HORNELL BREWING: Iglesias Sues for False and Misleading Advertising IRVING FARM COFFEE: Iskhakova Files ADA Suit in E.D. New York J.MCLAUGHLIN LLC: Dawkins Files ADA Suit in E.D. New York JIMMY'S HEALTHY FOODS: Mejia Files ADA Suit in S.D. New York KAO USA: Jergens Ultra Recalled Due to Bacterial Contamination KIRAKU GLEN: Ng Seeks Unpaid Minimum, OT Wages Under FLSA, NYLL LAKEVIEW LOAN: Faces Guarino Class Action Suit Over Data Breach LAKEVIEW LOAN: Fails to Secure Customers' Info, Rivera Suit Says LAKEVIEW LOAN: Fails to Secure Customers' Personal Info, Suit Says LEMONADE INC: Faces Clarke Class Suit Over Biometrics' Collection MCDONALD'S CORP: Big Mac's Packaging Contains PFAS, McDowell Says MCDONALD'S CORP: Faces Class Suit Over PFAS Use in Packaging MORGAN GRAHAM: Fails to Pay Proper Wages, Baker Suit Alleges NEOGENOMICS INC: Rosen Law Discloses Securities Class Action NEW YORK, NY: Leslie Sues Over Unlawful Collection of DNA NEW YORK: Srabyan's Amended Complaint Dismissed With Prejudice OGAWA USA: Guerrero Files ADA Suit in S.D. New York ONE MEDICAL GROUP: Etri Suit Removed to S.D. Florida OPTAVIA LLC: Zeller Files Suit in S.D. California OTG EXPERIENCE: Dawkins Files ADA Suit in E.D. New York P&M SOLUTIONS: Jaquez Files ADA Suit in S.D. New York PENN CREDIT: Summary Judgment Bid in Schmelczer FDCPA Suit Granted PENTEGRA SERVICES: Bid to Dismiss Khan ERISA Suit Granted in Part PEPSICO INC: Fails to Pay Workers' OT After Onset of Kronos Hack PORTFOLIO RECOVERY: Martinez FDCPA Suit Removed to D. New Jersey POWER BALANCE: Mejia Files ADA Suit in S.D. New York PREMIER LACROSSE: Jaquez Files ADA Suit in S.D. New York PRILLA INC: Guerrero Files ADA Suit in S.D. New York PROGRESSIVE CORP: Faces Suit Over Undervalued "Total Loss" Vehicles PUBLIC BENEFIT: Jaquez Files ADA Suit in S.D. New York PURE FISHING: District Court Grants Bid to Dismiss Chung Class Suit PURPOSE POINT: Faces Labor Class Suit Over Human Trafficking REALOGY BROKERAGE: Court Certifies 3 Classes in Bumpus TCPA Suit RECOVERY AGENTS: Faces Zahriyeh Suit Over Telephonic Sales Calls ROCKY MOUNTAIN: Guerrero Files ADA Suit in S.D. New York SAF-HOLLAND INC: Mejia Files ADA Suit in S.D. New York SCOTT SHAW: Suit Filed in Cal. Super. Ct. SHORE FUNDING: Floyd Sues Over Unsolicited Prerecorded Calls THIARA LIQUORS: Fails to Pay OT Premiums, Esquivel Class Suit Says TWITTER INC: Ninth Circuit Affirms Dismissal of Weston Class Suit USPACK LOGISTICS: Denial of Arbitration in Easterday Suit Affirmed VOLTA INC: Faces Kampe Securities Class Suit Over Share Price Drop VOLTA INC: Robbins Geller Reminds Investors of May 31 Deadline WIRELESSPCS CHICAGO: Hunter's Bid for Certification Partly Granted XCEL ENERGY: Faces Class Action Lawsuit Over Marshall Fire [*] Canadian Beef Consumers Get Relief From High Prices After Suit [*] London Court Blocks Planned Forex Class Suit Against Big Banks [^] CLASS ACTION Money & Ethics Conference on May 2 - Register Now Asbestos Litigation ASBESTOS UPDATE: Ballantyne Defends Personal Injury Suits ASBESTOS UPDATE: H.B. Fuller Defends Product Liability Claims ASBESTOS UPDATE: J&J Granted Expedited Appeal of Ch. 11 Strategy ASBESTOS UPDATE: Park-Ohio Co-Defends 106 Personal Injury Cases ********* 99 FAVOR TASTE: Iskhakova Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against 99 Favor Taste Restaurant, Inc. The case is styled as Marina Iskhakova, on behalf of herself and all others similarly situated v. 99 Favor Taste Restaurant, Inc., Case No. 1:22-cv-01848-BMC (E.D.N.Y., April 1, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. 99 Favor Taste -- https://www.99favortaste.com/ -- is an all-you-can-eat hotpot and bbq restaurant in NYC.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com A LA MODE SHOPPE: Iskhakova Files ADA Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against A La Mode Shoppe, Inc. The case is styled as Marina Iskhakova, on behalf of herself and all others similarly situated v. A La Mode Shoppe, Inc., Case No. 1:22-cv-01846 (E.D.N.Y., April 1, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. A La Mode Shoppe -- https://alamodeshoppe.com/ -- is an Allergy Friendly Ice Cream brand sold online and in grocery stores across the United States.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com ABBOTT LABORATORIES: Similac Products Contain GMOs, Lopez Alleges ----------------------------------------------------------------- ROCIO LOPEZ, individually and on behalf of all others similarly situated v. ABBOTT LABORATORIES, Case No. 3:22-cv-00421-L-RBB (S.D. Cal., March 30, 2022) is a putative class action lawsuit against the Defendant for allegedly cheating consumers by uniformly advertising, marketing, and selling nutritional food products under the brand name "Similac", each of which prominently features the representations "Non-GMO," or similar claims related to the absence of ingredients derived from genetically modified organisms ("GMO"), wherein contrary to Defendant's claims, each of the purportedly "Non-GMO" Products do, in fact, contain ingredients that are derived from genetically modified food sources and therefore constitute GMOs. According to the complaint, the Defendant prominently labels every Product sold in the United States as "Non-GMO." The Defendant does this because consumers perceive all-natural foods as better, healthier, and more wholesome. Indeed, in recent years, consumers have become significantly more aware and sensitive to genetically modified organisms ("GMOs") in their food. Many consumers want to avoid GMOs for a variety of reasons, including, but not limited to, the following: (1) health risks associated with ingesting foods derived from genetically modified ("GM") crops; (2) concerns of the ingestion of pesticides and other toxins; (3) interest in promoting sustainable living and local farming; and (4) negative environmental effects associated with growing GM crops. As a result, many consumers, including Plaintiff, try to buy products that are not derived from GMOs, and a movement has developed demanding consumer products that are non-GMO products. Thus, the market for all natural foods has grown rapidly in recent years, and Defendant seeks to take advantage of this trend through false advertising, says the suit. But Defendant's Non-GMO Claims concerning the Products are false, misleading, and deceptive to consumers, who reasonably understand such claims to mean that a product was produced without genetic engineering and its ingredients are not derived from GMOs. Accordingly, the Defendant's Non-GMO Claims are misleading and highly deceptive to reasonable consumers, the suit addedd. The Plaintiff brings this action individually and on behalf of similarly situated individuals against Defendant for: (i) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code sections 17200, et 22 seq.; (ii) violation of California's False Advertising Law ("FAL"), Cal. Bus. & Prof. 23 Code sections 17500, et seq.; (iii) violation of California's Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code sections 1750, et seq.; (iv) breach of express warranty; (v) breach of the implied warranty of merchantability; (vi) unjust enrichment restitution; (vii) negligent misrepresentation; (viii) fraud; and (ix) fraudulent misrepresentation. In October 2021, Ms. Lopez purchased Defendant's Similac Pro-Advance Infant Formula With Iron Milk-Based Powder from a Costco brick-and-mortar retail store located in Imperial. Prior to her purchase, Ms. Lopez reviewed the labeling, packaging, and marketing materials of her Products and saw the false and misleading claims that, among other things, the Products are purportedly "Non-GMO" infant formulas. The Defendant Abbott Laboratories sells its baby food and infant formulas under the "Similac" brand name. Similac's baby food products and infant formulas are sold nationwide, including throughout the State of California. The World Health Organization defines GMOs as "organisms in which the genetic material (DNA) has been altered in a way that does not occur naturally." Genetic modification ("GM"), also called genetic engineering, biotechnology, or bioengineering, is the process scientists use to make GMOs. It is an artificial laboratory-based technique that is specifically designed to enable the transfer of genes between unrelated or distantly related organisms. GM crops, such as canola, corn, and soy, are crops whose genetic 15 material has been altered by humans using genetic engineering techniques. GM crops are not natural, but man-made. There are wide-ranging controversies related to GM crops, including health risks from ingesting GM foods and negative environmental effects associated with growing GM crops.[BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. Sean L. Litteral, Esq. Julia K. Venditti, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com slitteral@bursor.com jvenditti@bursor.com ABSOLUTELY MARIO: Fails to Pay Proper Wages, Urrutia Alleges ------------------------------------------------------------ JOSE ARMANDO URRUTIA, individually and on behalf of other similarly situated, Plaintiff v. ABSOLUTELY MARIO, INC.; and CARLOS MARIO GARCIA, Defendants, Case No. 2:22-cv-01819 (E.D.N.Y., March 31, 2022) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. Plaintiff Urrutia was employed by the Defendants as chef. ABSOLUTELY MARIO, INC. operates an Italian-style restaurant in the County of Nassau and State of New York. [BN] The Plaintiff is represented by: Matthew J. Farnworth, Esq. Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO, P.L.L.C. 490 Wheeler Road, Suite 250 Hauppauge, NY 11788 Telephone: (631) 257-5588 AKRON CHILDREN'S HOSPITAL: Lawsuit Challenges Firing of 66 Workers ------------------------------------------------------------------ Doug Livingston at Akron Beacon Journal reports that Akron Children's Hospital is "confident" that its firing of dozens of unvaccinated employees will withstand a federal class action lawsuit. And the attorney making a First Amendment issue of the matter is already preparing for an appeal. Akron attorney Warner Mendenhall filed the lawsuit March 3 in the Ohio Northern District Court. Judge Charles Esque Fleming, who was appointed by President Joe Biden in February, is assigned to the case at the federal courthouse in Cleveland. His courtroom deputy confirmed that no dates have been set for initial briefs or hearings. The lawsuit names two lead plaintiffs: certified surgical technologist Brian Tessane and help desk worker Richard Brimer. Tessane worked five years at Akron Children's Hospital and Tessane for two years before each was let go in late January, about two weeks after missing the hospital's deadline for all staff members to get their initial COVID-19 vaccine shot. The plaintiffs, according to the lawsuit, were denied "reasonable accommodations" due to their Christian faith. Mendenhall said his clients were ultimately forced "to choose between violating their sincerely held religious beliefs or losing their jobs." Hospitals took lead on enforcing vaccine mandates Sharona Hoffam, a Case Western Reserve University professor of law and bioethics, said 'there have been challenges to every mandate" imposed during the pandemic. Few have succeeded. And challenging requirements imposed by a private employer, in accordance with federal rules, can be particularly difficult to argue. The U.S. Supreme Court in January struck down an attempt by the Biden administration to mandate COVID-19 vaccines in the private sector. The 7-6 ruling, however, upheld the federal government's ability to withhold funding from health care organizations with unvaccinated employees. After the Centers for Disease Control and Prevention issued the order and before the Supreme Court ruled, health care organizations across the country set their own deadlines amid a surge of hospitalizations linked to the omicron variant. Summa Health System was among the first in the region to enforce a self-imposed vaccine deadline for its workers, firing seven employees by the end of 2021. By the end of January, the Cleveland Clinic placed 450 of its 65,000 employees systemwide on unpaid leave. Akron Children's originally proposed a policy that would have allowed unvaccinated employees to test regularly. The pediatric hospital then required all employees to get a first shot by Jan. 11. In early February, Children's announced that 66 employees, including Tessane and Brimer, would be placed on unpaid leave and fired by the end of the month if still out of compliance. "Akron Children's Hospital is confident that our procedures for reviewing exemption requests from our COVID vaccination requirement are appropriate and legal," Children's spokeswoman Laurie Schueler said. "A vaccinated work force is the best protection we can offer our patients, many of whom are vulnerable and not eligible for vaccination, and is the best way to move beyond the pandemic." Hoffman said the courts have long upheld the right of private employers to make special demands of their employees, such as dress codes or no-smoking policies. That Akron Children's was implementing a vaccine mandate "in accordance with a CMS order" makes the action "doubly fine," she said. More Than Their Jobs Mendenhall said his lawsuit will cover "all persons who requested reasonable accommodations from the SARS-CoV-2 injection policy due to their sincerely held religious beliefs and who were summarily denied . . . absent a meaningful interactive process to determine whether reasonable accommodations could be made." He speculates that there could be hundreds of employees either fired or forced to get what he characterizes as an "experimental" shot after their religious exemptions were rejected. "Based on a violation of Plaintiff's First Amendment right to freely exercise their religion," the attorney is asking a federal judge to issue a temporary injunction. In addition to attorney fees, Mendenhall is seeking "damages including back pay, reinstatement or front pay, pre-judgment and post-judgment interest, punitive damages, and compensatory damages as applicable." But beyond serving his clients, Mendenhall said he wants "to establish government actor doctrine in the Sixth Circuit" federal courts covering Michigan, Ohio, Kentucky and Tennessee. The doctrine considers private businesses like Akron Children's Hospital as extensions of state or federal governments that impose what he sees as unconstitutional restrictions. He's applying the same strategy to another case, which the Ohio Supreme Court on March 23 agreed to hear on appeal. That case, which Mendenhall lost in common pleas and state appellate courts in Franklin County, involves Akron's Highland Tavern suing Ohio Gov. Mike DeWine and the Ohio Liquor Control Commission for enforcing a 10 p.m. bar curfew in the early months of the pandemic. Highland Tavern was a repeat offender of the new rule, receiving three citations in August 2020. The Akron establishment was stripped of its liquor permit that September. Along with reinstatement of the liquor permit, Mendenhall said he hopes to set a similar precedent to the one he's after in the class action lawsuit against Children's Hospital. "There's a theory in this case, kind of like the one in the Highland Tavern case, that I'm trying to pursue," he said. "And it's essentially that . . . Children's Hospital was coerced by the federal government to impose the vaccine mandate. Because of that coercion, [the private hospital] is actually standing in the shoes of the federal government. "So, we can sue directly under the First Amendment." "They weren't standing in for the federal government," Hoffman said of the "government actor approach" to challenging mandates. "They were complying with rules." The law professor said Mendenhall would have a better case had the state stripped the bar of its liquor license after new state laws limiting public health powers passed in 2021. "Certainly in August of 2020, [state government] had the power under the public health laws of the state to respond to the pandemic, to issue orders that were designed to safeguard the public and to enforce them through punishment," said Hoffman. "And that's what the government did." Reach reporter Doug Livingston at dlivingston@thebeaconjournal.com or 330-996-3792. [GN] AMERICA OOTOYA: Hanyzkiewicz Files ADA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against America Ootoya, Inc. The case is styled as Marta Hanyzkiewicz, on behalf of herself and all others similarly situated v. America Ootoya, Inc., Case No. 1:22-cv-01849 (E.D.N.Y., April 1, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. OOTOYA -- https://ootoya.us/ -- is one of the top Japanese restaurants in NY serving home style Japanese comfort food, Soba, Teishoku, Sushi and other authentic Japanese food in NY.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com BEAUMONT INDEPENDENT: Sued Over Constitutional Rights' Violations ----------------------------------------------------------------- GREG MURPHY, individually and on behalf of all others similarly situated v. BEAUMONT INDEPENDENT SCHOOL DISTRICT and SHANNON ALLEN, Case No. 1:22-cv-00135 (E.D. Tex., March 31, 2022) alleges that the Defendants violated the constitutional rights of Murphy and the proposed class members. The Plaintiffs file this Original Complaint seeking just compensation under both the Texas and United States Constitutions for Premium Pay wages earned for time worked during school closures due to the COVID-19 pandemic. The Plaintiffs are/were nonexempt, auxiliary workers employed by BISD during the school closures caused by the COVID-19 pandemic. As nonexempt, essential workers, (i.e. custodians, plumbers, food service workers, electricians and support and maintenance personnel) at the time of the COVID-19 emergency school closure, which began on or about March 23, 2020, the Plaintiffs were entitled to be paid Premium Pay, pursuant to BISD policy. The closure continued for months without pay being made consistent with the BISD policy. The Plaintiffs were asked to work during the school closures and took on essential roles of sanitizing the buildings, upkeeping the campus grounds, and providing meals and logistical support to allow for teachers and students to continue to teach and learn from their homes. BISD support staff also took on the role of sanitizing the buildings after a COVID-19 infection or exposure was reported. Initially, this work had been completed by independent contractors who were provided proper PPE. BISD did not provide the same PPE to the BISD employees who were asked to perform the same service related to COVID-19. The Plaintiffs were not informed that they would not be paid Premium Pay During Disasters until after they had worked during the closures.[BN] The Plaintiffs are represented by: Brandon P. Monk, Esq. THE MONK LAW FIRM 4875 Parker Drive Beaumont, TX 77705 Telephone: (409) 724-6665 Facsimile: (409) 729-6665 E-mail: brandon@themonklawfirm.com - and - Larry Watts, Esq. WATTS & COMPANY, LTD P.O. Box 2214 Missouri City, TX 77459 Telephone: (281) 431-1500 Facsimile: (877) 797-4055 E-mail: Wattstrial@gmail.com BEST CHOICE: Jaquez Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Best Choice Products, Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Best Choice Products, Inc., Case No. 1:22-cv-02673 (S.D.N.Y., March 31, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Best Choice Products -- https://bestchoiceproducts.com/ -- offers a catalog that's developed in-house with home furniture, toys, outdoor and seasonal products, all at value prices.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com BINANCE: Wins Dismissal of Suit Over Unregistered Crypto Tokens --------------------------------------------------------------- cointelegraph.com reports that a federal judge has dismissed a class action complaint asserting Binance violated United States securities laws by not registering as a broker-dealer or exchange and sold crypto tokens that were not registered with the U.S. Securities and Exchange Commission (SEC). The original complaint filed in the U.S. District Court for the Southern District of New York was brought by a group of investors who say they invested in the tokens EOS, BNT, SNT, QSP, KNC, TRX, FUN, ICX, OMG, LEND, ELF and CVC around 2017 and 2018. An amended complaint was filed, only listing nine tokens, with BNT, SMT and CVC removed. The investors said the tokens had lost much of their value since purchasing and were seeking compensation for the price paid for the tokens and the fees paid to Binance in connection with their purchases. "Binance and the Issuers wrongfully engaged in millions of transactions, including the solicitation, offer, and sale of securities, without registering the Tokens as securities, and without Binance registering with the SEC as an exchange or broker-dealer. As a result, investors were not informed of the significant risks inherent in these investments, as federal and state securities laws require." The investors further claimed that Binance capitalized on the enthusiasm brought on by cryptocurrencies, marketing tokens and initial coin offerings (ICOs) on behalf of projects and profited off the associated trading fees, adding that investors "purchased the tokens with a reasonable expectation of profit from owning them." In his decision, judge Andrew Carter said that as the investors waited more than a year after purchasing the tokens to file the complaint, they had sued too late. Most of the tokens were purchased in 2018 and the original filing wasn't until April 2020. The investors argued that as the SEC published a framework asserting digital tokens were securities in April 2020, the timeline for complaint submission should have started then. Carter found that the relevant laws apply when the supposed violation occurs, not when it is detected. Judge Carter also said that domestic securities laws are not applicable to Binance, as it is not a domestic exchange in the U.S., being headquartered in the Cayman Islands. Binance does use Amazon Web Services to host its infrastructure and that is based in the U.S., but that isn't enough to consider Binance as a domestic exchange. "Plaintiffs must allege more than stating that plaintiffs bought tokens while located in the U.S. and that title passed in whole or in part over servers located in California that host Binance's website," Carter wrote in the motion. This isn't the only class-action lawsuit filed against a crypto exchange on such grounds. On March 11, a suit was filed against Coinbase in the same court, alleging that it's operating as an unregistered securities exchange. Similar arguments are being directed at Coinbase, with plaintiffs saying they were not warned of the risks of cryptocurrency investments. Binance did not immediately respond to Cointelegraph's request for comment. [GN] BIOELEMENTS INC: Lawal Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Bioelements, Inc. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Bioelements, Inc., Case No. 1:22-cv-02692 (S.D.N.Y., April 1, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bioelements -- https://www.bioelements.com/ -- professional skin care has been committed to estheticians, awarded by experts and loved by clients for over 25 years.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com BLANK SHIRTS: Lawal Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Blank Shirts, Inc. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Blank Shirts, Inc., Case No. 1:22-cv-02637 (S.D.N.Y., March 31, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Blank Shirts, Inc. -- https://www.blankshirts.com/ -- is an e-commerce apparel site.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com BNPC LLC: Gilder Class Suit Seeks Damages for Unpaid Meal Periods ----------------------------------------------------------------- WILLIE GILDER, Individually, and on behalf of himself and others similarly situated v. BNPC, LLC and SERVPRO OF MONTGOMERY COUNTY, LLC, Case No. 3:22-cv-00224 (M.D. Tenn., March 31, 2022) is a collective action for violations of the Fair Labor Standards Act brought against the Defendants on behalf of all hourly-paid production techs who worked for the Defendants during the past three years. The Plaintiff and the putative class seek damages for unpaid meal periods during which they performed work duties, an/or were not fully relieved from work duties during such unpaid meal periods. The unpaid wage claims of Plaintiff and those similarly situated are unified through a common theory of Defendants' FLSA violations. Plaintiff Gilder was employed by Defendants as a production tech during all times relevant and material to this action. The Defendants provide commercial and residential restoration and clean-up services for customers.[BN] The Plaintiff is represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. Robert E. Morelli, III, Esq. B. Alan Matthews, Esq. JACKSON, SHIELDS, YEISER, HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail; gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com amatthews@jsyc.com BOOKING HOLDINGS: Jaquez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Booking Holdings Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Booking Holdings Inc., Case No. 1:22-cv-02567-JPO (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Booking Holdings Inc. -- https://www.bookingholdings.com/ -- is an American travel technology company organized in Delaware and based in Norwalk, Connecticut.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com CALIFORNIA: Lawsuit Filed Against State Bar After Data Breach ------------------------------------------------------------- Veronica Miller at davisvanguard.org reports that a law firm here said it's filed a class action lawsuit against an individual, Judyrecords.com, and the State Bar of California—despite a chance of harassment by the attorney licensing agency—because of an alleged data breach of 260,000 records. Lenore Albert from Law Offices of Lenore Albert said the class action lawsuit was filed March 18 on behalf of four people, including two California residents who had filed complaints against an attorney with the State Bar, and two members of the State Bar. This class action lawsuit claims that the State Bar of California, through the release of 260,000 confidential records, violated privacy rights. The release of these confidential records happened after the State Bar intentionally transferred some of its confidential records into a new Case Management System, and then intentionally published all of their public records online. This lawsuit also claims that there was a violation of constitutional rights, state law, and federal antitrust laws. Albert stated that the agency failed to secure this confidential information that they were trusted with and failed to notify any of the affected California residents. The Plaintiffs' attorney also notes that in 2022 this is not what protecting the public is supposed to look like. Especially with so much information shifted onto the internet in terms of work, school, and shopping. Albert states that the State Bar suggests it has no liability because the law does not apply to them, but Albert argues this "is the type of thinking and reaction that is wrong in California and destroys public trust in the government and integrity of the judicial system." Albert added that the Bar, with $300 million in revenue coming from attorneys and having some of the highest paid public servants in the state, has "is no legitimate excuse for this breach or lack of proper response." Albert proceeded to highlight the California Information Practices Act of 1977, which may put the potential defendant Tyler Technology under a liability for actual damages and statutory damages of $2,500 plus, per person. Albert noted the severity and danger of such data breaches, including potential theft, extortion, job loss, harassment or even bodily harm. Albert said, unlike the previous OPM (Office of Personnel Management) breach when a hacker unlawfully accessed employee records, this case was caused by the State Bar's own conduct, which she deemed "highly offensive and embarrassing." Albert emphasized the possible retaliation to his credibility because she's filing the class action against the State Bar, including unjustified investigation, suspension, and even disbarment of his license. "The State Bar has the ability to erase all credibility of an attorney and take away their livelihood in one fell swoop," said Albert, adding she is pursuing the action because "it is meritorious and the victims want justice but are too.[GN] CELTIC INSURANCE: Court Tosses TCPA & IATDA Claims in Bennett Suit ------------------------------------------------------------------ In the case, TAWNI BENNETT, individually and on behalf of all other similarly situated, Plaintiff v. CELTIC INSURANCE COMPANY, CR INSURANCE GROUP, LLC, and JOEL ORTIZ, Defendant, Case No. 20-cv-06172 (N.D. Ill.), Judge John Robert Blakey of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted Celtic's motion to dismiss. Plaintiff Tawni Bennett brings putative class-action claims against Defendants Celtic Insurance Company, CR Insurance Group, LLC, and Joel Ortiz for violating the Telephone Consumer Protection Act (TCPA) and the Illinois Automatic Telephone Dialers Act (IATDA). She alleges that the Defendants "placed thousands of nonconsensual automated or prerecorded calls to consumers' cellphones," including hers, using an "automatic telephone dialing system." The Court previously dismissed the Plaintiff's claims against Defendants CR and Ortiz for lack of personal jurisdiction. Defendant Celtic now moves to dismiss the Plaintiff's TCPA and IADTA claims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). I. Introduction Plaintiff Bennett brings putative class-action claims against Defendants Celtic Insurance Co., CR Insurance Group, LLC, and Joel Ortiz for violating the TCPA and the IATDA. She alleges that the Defendants "placed thousands of nonconsensual automated or prerecorded calls to consumers' cellphones," including hers, using an "automatic telephone dialing system." The Court previously dismissed the Plaintiff's claims against Defendants CR and Ortiz for lack of personal jurisdiction. Defendant Celtic now moves to dismiss the Plaintiff's TCPA and IADTA claims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). II. Background In December 2019, the Plaintiff began receiving telemarketing calls on her cellular phone trying to sell her health insurance. These unsolicited calls continued through October 2020, even though Plaintiff registered her cellphone number on the National Do-Not-Call Registry in 2014. The Plaintiff incurred charges for the calls. The Plaintiff claims that the calls were made using an automatic telephone dialing system (ATDS). She knew this because the calls were prerecorded, "sounded the same," and "had the same or substantially similar" generic message that "the caller had a 'very important call to help you' with 'renewal of your insurance.'" The Plaintiff additionally alleges, based on "information and belief," that the ATDS at issue can "store or produce telephone numbers using a random or sequential number generator" and "dial numbers without human intervention." She states that the caller used "spoofed" phone numbers because most calls she received "displayed a different number." While investigating the source of the calls, the Plaintiff connected with the caller's live operators on two occasions. The live operators "identified themselves as sales agents who worked with Ambetter to sell an Ambetter plan." One of them referred to the insurance product as "our plans" and stated that she was calling "with Ambetter" from "the call center." Ambetter, the only policy offered in the calls, is a product of Defendant Celtic. Upon agreeing to purchase "the health insurance product offered in the calls," the Plaintiff received a copy of the insurance policy, which "confirmed" that the "calls and product sold were from, or on behalf of Celtic." The Plaintiff alleges that the "Defendants promote and market Celtic services and products" through unlawful telemarketing. In her second amended complaint, she names as Defendants CR and Ortiz, "licensed and authorized Celtic insurance broker and/or sales agents," and Celtic, a company that "hires, authorizes, and pays third-party brokers and sales agents, including but not limited to CR and Ortiz," to sell its products via telemarketing. The Plaintiff also alleges that "Celtic and/or CR" provided "interim instructions" to "CR and/or Ortiz regarding the calls" and specified "the geographic location and/or volume of the calls." Additionally, the "Defendants specified the criteria of potential customers," allowed their marketers to access "records and data concerning the persons called," and "had access to the sales and customers generated by the illegal robocalling." Finally, the Plaintiff claims that she reasonably believed "the telemarketers who called her had received permission, authority, and instruction to conduct activity on behalf of Defendant Celtic." III. Analysis In its motion, Celtic seeks to dismiss both of the Plaintiff's claims for failure to state a claim. A. The Sufficiency of Plaintiff's TCPA Allegations The Plaintiff claims that Celtic is directly or vicariously liable for the unlawful calls at issue in the case. She alleges that she received calls from the "Defendants," CR, Ortiz, or an unknown telemarketer. She further claims that Celtic is liable as part of a joint enterprise with CR and Ortiz for the alleged TCPA violations. Celtic argues that the Plaintiff's claims fail for various reasons, including that she did not allege facts showing that Celtic itself physically placed the calls and did not allege facts to demonstrate any agency relationship between Celtic and the individuals or entities that called her. Judge Blakey opines that (i) although the Plaintiff claims that CR and Ortiz have engaged in unlawful telemarketing, her complaint does not plausibly link their conduct to the calls she received; (ii) the Plaintiff failed to allege facts that would provide a substantive basis to hold Celtic either directly or vicariously liable for the calls that connected her to Ambetter's call center; (iii) the Plaintiff's allegations fail to state a claim against Celtic for direct liability under the TCPA; and (iv) because the Plaintiff's allegations do not support the existence of active interactions between the telemarketer and the defendant, the Court dismisses her vicarious liability claims against Celtic based upon the Ambetter caller. B. The Sufficiency of Plaintiff's IADTA Allegations The IADTA makes it unlawful for a person to "operate an autodialer in this State except in accordance with this Act." To state a claim under the IADTA, a plaintiff must allege that: "(1) she is a telephone customer; (2) the defendant placed a call using an autodialer; (3) the defendant played a prerecorded message; (4) the call was not made with her consent; and (5) she was injured by the defendant's alleged violation." The Plaintiff alleges that Celtic violated the IADTA because Celtic "caused calls to be made to the phones of the Plaintiff" using an autodialer that played a prerecorded message. As Judge Blakey discussed, however, the Plaintiff has not plausibly alleged that either Celtic or its third-party agent placed the calls she received. He, therefore, finds that the Plaintiff's allegations fail to state a claim under the IADTA and dismisses her IADTA claims against Celtic. IV. Conclusion For the reasons he explained, Judge Blakey granted Defendant Celtic's Rule 12(b)(6) motion to dismiss and dismissed Counts I through VI of the Plaintiff's second amended complaint. Judge Blakey notes that the Plaintiff has already amended her complaint twice, including once in response to Celtic's Rule 12(b)(6) arguments. Yet, given Rule 15(a)(2)'s mandate to freely give leave to amend, she will give the Plaintiff one last chance to cure the deficiencies noted. If, consistent with Rule 11, the Plaintiff can allege facts to support her claims against Celtic, she may amend her complaint by April 15, 2022. If the Plaintiff fails to file an amended complaint by this date, the Court will dismiss the case. A full-text copy of the Court's March 23, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2p9e26ye from Leagle.com. CHOCZERO INC: Mejia Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Choczero, Inc. The case is styled as Jose Mejia, individually, and on behalf of all others similarly situated v. Choczero, Inc., Case No. 1:22-cv-02615 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. ChocZero -- https://www.choczero.com/ -- offers sugar free chocolate, jams, and syrup and make keto chocolate and treats sweetened with monk fruit.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com CHRISTIANBOOK LLC: Sells Data Without Consent, Bozung Alleges ------------------------------------------------------------- TIMOTHY BOZUNG, individually and on behalf of all others similarly situated, Plaintiff v. CHRISTIANBOOK, LLC, Defendant, Case No. 1:22-cv-00304-PLM-SJB (W.D., Mich., March 31, 2022) alleges violation of the Michigan's Preservation of Personal Privacy Act. The Plaintiff alleges in the complaint, to supplement its revenues, the Defendant rents, exchanges, or otherwise discloses its customers' information -- including their full names, titles of publications subscribed to, and home addresses ("Private Reading Information"), as well as myriad other categories of individualized data and demographic information such as gender and interests -- to data aggregators, data appenders, data cooperatives, and other third parties without the written consent of its customers. By renting, exchanging, or otherwise disclosing - rather than selling - its customers' Private Reading Information, the Defendant is able to disclose the information time and time again to countless third parties, says the suit. The Defendant's alleged disclosure of Private Reading Information and other individualized information is not only unlawful, but also dangerous because it allows for the targeting of particularly vulnerable members of society. While the Defendant profits handsomely from the unauthorized rental, exchange, and disclosure of its customers' Private Reading Information and other individualized information, it does so at the expense of its customers' statutory privacy rights (afforded by the PPPA) because the Defendant does not obtain its customers' written consent prior to disclosing their Private Reading Information. GANNETT CO., INC. operates as a local newspaper company. The Company publishes news through storytelling and events that connect readers and communities, as well as focuses on business practices for sourcing, consumption, and waste. Gannett serves customers in the United Stated. [BN] The Plaintiff is represented by: Frank S. Hedin, Esq. Arun G. Ravindran, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 1140 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 Email: fhedin@hedinhall.com aravindran@hedinhall.com - and - Joseph I. Marchese, Esq. Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212)989-9163 Email: jmarchese@bursor.com pfraietta@bursor.com - and - E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Dennis A. Lienhardt, Esq. William Kalas, Esq. THE MILLER LAW FIRM, P.C. 950 W. University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841-2200 Email: epm@millerlawpc.com ssa@millerlawpc.com dal@millerlawpc.com wk@millerlawpc.com CIRKUL INC: Fischler Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Cirkul, Inc. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated v. Cirkul, Inc. doing business as: Cirkul, Case No. 1:22-cv-01786 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Cirkul -- https://drinkcirkul.com/ -- makes drinking water easy, fun, and delicious from unflavored to fully flavored water or anywhere in between.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170 Phone: (212) 764-7171 Email: chris@lipskylowe.com CLARIFAI INC: Goodman Sues Over Misuse of Biometric Information --------------------------------------------------------------- Debra Goodman, individually and on behalf of all others similarly situated v. CLARIFAI, INC., a Delaware corporation, Case No. 1:22-cv-02280-JPC (S.D.N.Y. March 21, 2022), is brought as a result of the surreptitious misappropriation and misuse of potentially hundreds of thousands of Illinois residents' biometric information by a tech startup named Clarifai. Like other businesses that harness the power of AI/ML to create facial recognition models, Clarifai needed an enormous amount of training data--in particular, pictures of people's faces--to build its tools. Luckily for Clarifai--and unluckily for users of a popular dating service, OkCupid--one of Clarifai's funders, Corazon Capital, was in a position to help. Clarifai used those images to train or refine its facial recognition software, a process that necessarily extracts biometric data in the form of maps of facial geometry. Given the immutability of biometric information and the difficulty of completely hiding one's face in public, facial recognition poses severe risks to security and privacy. The capture and storage of faceprints leaves people vulnerable to data breaches and identity theft. It can also lead to unwanted tracking and invasive surveillance by making it possible to passively identify individuals in public places or, worse, in sensitive locations like health care facilities, addiction treatment centers, religious institutions, and more. In recognition of these threats, more than a decade ago the Illinois General Assembly enacted the Illinois Biometric Information Privacy Act ("BIPA"), which protects people against the surreptitious and nonconsensual capture of their biometric identifiers, including faceprints. In enacting BIPA, the Legislature explained: "Biometrics are unlike other unique identifiers that are used to access finances or other sensitive information. For example, social security numbers, when compromised, can be changed. Biometrics, however, are biologically unique to the individual; therefore, once compromised, the individual has no recourse and is at heightened risk for identity theft." Clarifai's brazen disregard for individual privacy rights violates Illinoisans' rights under BIPA, which was specifically designed to protect Illinois residents from this kind of underhanded behavior. As part of her use of OkCupid over the years, the Plaintiff has uploaded several photographs to the service. The Plaintiff's photographs existed in OkCupid's database at the time when Defendant Clarifai misappropriated OkCupid's database of photographs in order to train its facial recognition algorithms. The Plaintiff had her biometric identifiers extracted from her OkCupid profile photographs by Clarifai, which used them to build or enhance the facial recognition tools from which it derives revenue. Clarifai did not notify the Plaintiff that it was collecting, using, or storing her biometric identifiers. At no time did Clarifai notify the Plaintiff about the purpose or length of time for which it was collecting, using, or storing her biometric identifiers. At no time did the Plaintiff provide her consent, whether in writing or any other means, for Clarifai to extract her biometric information from her photographs in order to train its facial recognition algorithms. Had the Plaintiff been asked to provide consent to Clarifai for use of her biometric information, she would have declined, says the complaint. The Plaintiff is a citizen and resident of the State of Illinois who began using OkCupid on or about September 2011 and continues to maintain an active account. Clarifai is a Delaware corporation headquartered in New York.[BN] The Plaintiff is represented by: Benjamin R. Osborn, Esq. LAW OFFICES OF BENJAMIN R. OSBORN 102 Bergen Street Brooklyn, NY 11201 Phone: 347.645.0464 Email: ben@benosbornlaw.com - and - J. Eli Wade-Scott, Esq. Schuyler Ufkes, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 Email: ewadescott@edelson.com sufkes@edelson.com CLEAN CITY: Faces Livingston Suit Over Unpaid Wages & Kick-Backs ---------------------------------------------------------------- CAROLYN LIVINGSTON Individually and on Behalf of All Similarly Situated v. CLEAN CITY LTD. D/B/A PEACHES OF ATLANTA and CORNELIUS L. STEPHENS, Case No. 1:22-cv-01259-LMM (N.D. Ga. March 30, 2022) alleges that the Defendants violated the minimum wage and record keeping requirements of the Fair Labor Standards Act, seeking to recover unpaid wages, including "kick-backs," liquidated damages and reasonable attorneys' fees and costs. According to the complaint, the Defendants made the decision to misclassify the Plaintiff and other similarly situated dancers as independent contractors rather than employees, and not pay them the minimum wage. The Plaintiff Livingston was a former employee of the the Defendants, having been employed at Peaches from Winter 2018 to May 2021. The FLSA Class Members are all current and former exotic dancers who worked at Peaches located at 779 Ralph David Abernathy, Atlanta, Georgia, at any time starting three years before this Complaint was filed, up to the present. The Defendant Stephens owns and operates Peaches. The Defendants jointly owned, operated and managed Peaches and were all involved in the day-to-day operation of the Club.[BN] The Plaintiff is represented by: Mutepe Akemon, Esq. THE RICHARDS LAW GROUP, LLC P.O. Box 360295 Decatur, GA 30036 Telephone: (404) 289-6816 Facsimile: (404) 795-0727 E-mail: mutepe.akemon@richardslegal.com COMPLETELY BARE: Mejia Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Completely Bare Distributors, LLC. The case is styled as Jose Mejia, individually, and on behalf of all others similarly situated v. Completely Bare Distributors, LLC, Case No. 1:22-cv-02619 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Completely Bare -- https://completelybare.com/ -- offers spa-quality hair removal at home.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com CONCIMED LLC: Fischler Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Concimed, LLC. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated v. Concimed, LLC doing business as: Concimed, Case No. 1:22-cv-02598 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. ConciMed -- https://www.concimed.com/ -- offers fast & reliable Covid-19 test results in Florida & New York.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170 Phone: (212) 764-7171 Email: chris@lipskylowe.com DAVE INC: Settlement of Data Breach Suit Ongoing ------------------------------------------------ Dave Inc. 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 Dave is in the process of settling a class action lawsuit captioned Stoffers v. Dave Inc. filed in Los Angeles Superior Court in September 16, 2020 in connection with the data breach it experienced in June 2020. Dave is in the process of settling this matter and estimates the settlement to be approximately $3.2 million, which is included with legal settlement expenses, net of insurance reimbursements, within the statements of operations for the year ended December 31, 2020. Dave Inc. is integrated financial services online platform that provides intuitive financial products. EASTLAND SHOE: Sanchez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Eastland Shoe Corp. The case is styled as Cristian Sanchez, individually, and on behalf of all others similarly situated v. Eastland Shoe Corp., Case No. 1:22-cv-02577 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Eastland Shoe Corporation -- https://www.eastlandshoe.com/ -- is a leather casual shoe company based in Maine..[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com ESSEX CLASSICS: Guerrero Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Essex Classics, Inc. The case is styled as Edelmira Guerrero, individually and on behalf of all others similarly situated v. Essex Classics, Inc., Case No. 1:22-cv-02586 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Essex Classics Inc. -- https://essexclassics.com/ -- is an apparel & fashion company based out in Fleetwood, Pennsylvania.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com EUGENIA KIM INC: Sanchez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Eugenia Kim Inc. The case is styled as Cristian Sanchez, individually, and on behalf of all others similarly situated v. Eugenia Kim Inc., Case No. 1:22-cv-02574 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Eugenia Kim -- https://eugeniakim.com/ -- is an online store that sells a wide range of hair stalls, straw bags, gloves and scarves.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com EVANSTON, IL: Mayor Biss, Landlord Sued for Living Conditions ------------------------------------------------------------- Jorja Siemons at dailynorthwestern.com reports that three former tenants have filed a $10 million class-action lawsuit against an Evanston landlord and his son, as well as Mayor Daniel Biss, for restitution after living in "crumbling properties." Carlene Clarke filed the suit last December -- citing infestations, water damage, mold problems and sewage leaks -- against Sargon Isaac, the owner of the unit she rented in the 2100 block of Emerson. The lawsuit accuses Isaac of racial discrimination and alleges his actions violated the federal Fair Housing Act. The suit states that when Clarke and her family moved in last April, they faced "uninhabitable conditions" including a leaking roof, inoperable heating and cracked walls and window frames. Additionally, the suit alleges the unit had a rodent infestation so severe that the family could hear "mice and rats scratching and clawing in the walls every day." According to her legal complaint, Clarke alerted Isaac to the property's conditions, but he allegedly told her that "every country has people who must struggle, and in the United States those people are Black." Clarke also named the landlord's son, Peter Isaac, as a defendant in the Dec. 23, 2021 filing, alleging he gave his father preferential treatment due to his position on the Evanston Plan Commission. According to previous versions of the Commission's webpage, Peter Isaac served as chair but his term expired in April 2021. The current webpage does not list him as a member. Danielle Malaty of Kopka Pinkus Dolin, Sargon and Peter Isaac's attorney, could not be reached for comment. Biss has also been named as a defendant in his capacity as the city leader. The suit calls for the Circuit Court of Cook County to "put a stop to Sargon Isaac's racism and Evanston's protection of that racism." City Communications Manager Patrick Deignan said the city does not comment on pending litigation. According to court documents, Sargon Isaac tried to evict Clarke following the lawsuit's filing. In response, a Cook County judge issued a temporary restraining order on Jan. 18 blocking that action and ordering the landlord to complete apartment repairs. Sheryl Ring, the attorney who filed the suit, also said she does not comment on ongoing litigation. Residents Radiance Collins and Victoria Fahnbulleh, who have also been Sargon Isaac's tenants, joined the suit and corroborated Clarke's concerns about the defendants. Collins entered a one-year lease agreement for an Evanston property operated by Sargon Isaac last December. The lawsuit alleges that Collins' heating and plumbing were inoperable, and at the time Isaac neglected to disclose the more than $25,000 already owed on the electric bill. According to court documents, after Sargon Isaac threatened to evict Collins unless she paid the rent in full, local nonprofit Connections for the Homeless provided money to help her pay rent. Collins, through an attorney, terminated her lease on Feb. 8, according to the suit. Fahnbulleh also alleges Sargon Isaac refused to fix a broken heater in her apartment, where she was his tenant from from 2016 to 2021. This led to frozen pipes and a leaking kitchen ceiling last winter. According to court documents, Sargon Isaac owns and manages over 50 residential housing units throughout Evanston and has been conducting business "under the fictitious name 'SI Properties.'" While the lawsuit said two "SI Properties" exist in the state of Illinois, neither indicate Isaac as affiliated and connected. [GN] FACETS OF TOUCH: McCary Seeks MInimum, OT Wages Under FLSA, IWPCA ----------------------------------------------------------------- KRISTIN MCCARY on behalf of herself, and all other plaintiffs similarly situated, known and unknown v. FACETS OF TOUCH, LLC., AN ILLINOIS LIMITED LIABILITY COMPANY, THEODORE LEWIS, INDIVIDUALLY AND JEANNETTE LEWIS, INDIVIDUALLY, Case No. 1:22-cv-01681 (N.D. Ill. March 31, 2022) seeks to recover minimum wages and overtime pay under the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act. FOT owns and operates a nail salon by the same name. FOT provides manicure, pedicure and other salon, spa and beauty services to appointment and walk-in customers. FOT is located at 19265 Burnham Ave. in Lansing, Illinois. The Plaintiff is a former worker of the Defendants who worked as a receptionist and nail technician from January 2021 to January 2022. She worked at Defendants' Lansing, Illinois salon. The Plaintiff worked for Defendants as a receptionist from January 2021 to February 2022, and as a nail technician from February 2021 until January 2022. During the Plaintiff's entire employment, FOT improperly classified Plaintiff as a 1099 independent contractor and compensated Plaintiff on a commission basis and as such, illegally failed to compensate her proper minimum wages and overtime pay for hours worked over 40 per work week. FOT also improperly deducted their own expenses and costs from Plaintiff's pay without receiving proper, contemporaneous authorizations from Plaintiff, including through failure to use compliant deduction authorization forms, the lawsuit says.[BN] The Plaintiff is represented by: Samuel D. Engelson, Esq. John W. Billhorn, Esq. Samuel D. Engelson, Esq. BILLHORN LAW FIRM Monadnock Building 53 W Jackson Blvd Suite 401 Chicago, IL 60604 Telephone: (888) 408-0401 FAMILY DOLLAR: Distribution Center Infested With Rodents, Suit Says ------------------------------------------------------------------- KAREN SHARP, individually and on behalf all others similarly situated v. FAMILY DOLLAR and DOLLAR TREE, INC., Case No. 3:22-cv-00090-BSM (E.D. Ark., March 30, 2022) arises out of the recently disclosed rodent infestation of a distribution center operated by Defendant Family Dollar in West Memphis, Arkansas. According to the complaint, the warehouse stored and shipped products, including products that were intended for human and animal consumption. As a result of the rodent infestation, Plaintiff and thousands of Class Members who purchased these products were subjected to actual harm. The U.S. Food and Drug Administration announced on February 18, 2022, that Family Dollar stores in six states may have received products from a distribution center in West Memphis, Arkansas that were contaminated by a rodent infestation. The agency warning includes items purchased since January of 2021, such as food for herself and her family, cosmetics, vitamins and dietary supplements, over-the-counter medications, surgical masks, feminine hygiene products, and contact lens cleaning solutions, and toiletry items among others. The FDA is asking Family Dollar customers to contact the company if they purchased any of these products. The agency also recommends discarding any medical items immediately and is working with the store chain to begin a product recall. Family Dollar has issued a voluntary recall which covered numerous FDA regulated products, including medicine, pet food and cosmetics, that were sold between January 2021 and February 2022 in Family Dollar stores in Alabama, Arkansas, Louisiana, Mississippi, Missouri and Tennessee (the "Recalled Products"), says the suit. Allegedly, the use or consumption of affected products presents a risk of illness due to the potential presence of Salmonella, an organism which can cause serious and sometimes fatal infections in infants, young children, frail or elderly people, pregnant persons, persons with pre-pathology (e.g., patients with cancer undergoing chemotherapy treatments, organ transplant recipient, etc.) and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis. Accordingly, the Plaintiff, individually and on behalf of a Class of all persons similarly situated, brings claims for breach of the implied warranty of merchantability, unjust enrichment, and violation of the Arkansas Deceptive Trade Practice Act.[BN] The Plaintiff is represented by: Stephen F. Libby, Esq. LAW OFFICES OF STEPHEN F. LIBBY 5384 Poplar Avenue, Suite 410 Memphis, TN, 38119 FARMVET.COM INC: Jaquez Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Farmvet.com, Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Farmvet.com, Inc., Case No. 1:22-cv-02675 (S.D.N.Y., March 31, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. FarmVet -- https://www.farmvet.com/ -- is the premier source for horse and pet supplements, supplies and prescriptions.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com FINANCIAL INDEMNITY: Court Refuses to Certify Class in Bhasker Suit ------------------------------------------------------------------- In the case, HELEN BHASKER, on behalf of herself and all others similarly situated, Plaintiff v. FINANCIAL INDEMNITY COMPANY, Defendant, Case No. 1:17-cv-00260-KWR-JHR (D.N.M.), Judge Kea W. Riggs of the U.S. District Court for the District of New Mexico denied the Plaintiff's Motion for Class Certification. I. Background The putative class action arises out of a dispute over "underinsured motorist coverage." In New Mexico, underinsured motorist coverage generally consists of the difference between an insured's uninsured motorist coverage limit and a tortfeasor's liability coverage. In New Mexico Statutes Annotated (NMSA) Section 66-5-301, 'underinsured motorist' means an operator of a motor vehicle with respect to the ownership, maintenance or use of which the sum of the limits of liability under all bodily injury liability insurance applicable at the time of the accident is less than the limits of liability under the insured's uninsured motorist coverage. On June 24, 2015, the Plaintiff was injured in an automobile collision with another driver. The tortfeasor carried minimum limits of liability coverage, that is, $25,000 per person and $50,000 per accident. The Plaintiff received the full extent of liability coverage carried by the tortfeasor, but that coverage was insufficient to fully compensate Plaintiff for her damages. When the Plaintiff requested that the Defendant provide her with the UIM benefits for which she paid a premium, the Defendant denied her claim. The Plaintiff argues that pursuant to the statutory offset under NMSA Section 66-5-301, underinsured motorist coverage at minimum limits generally does not exist. If a tortfeasor's liability limit is $25,000 and an insured's uninsured motorist coverage limit is $25,000, the insured will rarely access the underinsured motorist coverage portion of his or her motorist insurance. The Plaintiff alleges that the Defendant sold her underinsured motorist coverage but did not disclose that it had limited value. Defendant asserts there are instances where underinsured motorist coverage at minimum limits has value. The Plaintiff subsequently filed the putative class action, asserting the following claims: Count I - Negligence; Count II - Violations of the Unfair Trade Practices Act (N.M.S.A.1978, Section 57-12-2) (UPA); Count III - Violations of the Unfair Insurance Practices Act (N.M.S.A.1978, Sections 59A-16-1 et seq.) (UIPA); Count IV - Breach of Contract and claim for Motorist Coverage; Count V - Breach of Contract and Covenant of Good Faith and Fair Dealing; Count VI - Injunctive Relief; Count VII - Declaratory Judgment; and Count VIII - Punitive Damages. The Plaintiff moves to certify the class action. The Defendant argues that certification is inappropriate. It also argues that certification under Fed. R. Civ. P. 23(b)(3) is inappropriate because individual issues predominate over common ones. II. Discussion The Plaintiff seeks to certify a class that consists of the following: "All persons (and their heirs, executors, administrators, successors, and assigns), from whom Defendant collected a premium for underinsured motorist coverage after Aug. 14, 1985 to present, on a policy that was issued or renewed in New Mexico by Defendants and that purported to provide underinsured motorist coverage, but which effectively provides no underinsured motorist coverage (UIM) and/or misleading UIM coverage, because of the statutory offset recognized in Schmick v. State Farm Mutual Automobile Insurance Company, 704 P.2d 1092 (1985)." The Plaintiff also seeks to certify the following subclass: "All Class Members (and their heirs, executors, administrators, successors, and assigns) where an underinsured motorist coverage on a policy that was issued or renewed in New Mexico by Defendant and that purported to provide an amount of UM/UIM limits per occurrence, but which in fact provides none or a misleading amount of underinsured motorists coverage, because of the statutory offset recognized in Schmick v. State Farm Mutual Automobile Insurance Company, 704 P.2d 1092 (1985), and who sustained damages in excess of an insured tortfeasor's policy limits, received the extent of all bodily injury liability limits available, made a claim with Defendants for underinsured motorist, and who received no UIMBI, or reduced UIMBI, benefits because of application of the Schmick offset." Judge Riggs opines that the Plaintiff has satisfied the majority of the requirements under Fed. R. Civ. P. 23(a) and (b)(3) for class certification. However, because of a potential conflict of interest, she cannot find at this time that representation is adequate under Fed. R. Civ. P. 23(a)(4). The Plaintiff also did not move to certify class counsel, which would also prevent the Court from entering an order certifying the class. Judge Riggs finds that a potential conflict may exist because of the familial relationship between the class representative and one of her attorneys. The class representative is a fiduciary to the class, but the Plaintiff may place the interests of her brother ahead of the class, such as by consenting to a high award of attorney fees or entering into a settlement which benefits her brother over the class. At least upon viewing the record created by the Defendant, Judge Riggs is concerned whether the Plaintiff is capable of ensuring the class counsel acts in the best interest of the class. The Plaintiff should make a better record on this issue and make a record showing whether and how potential conflicts could be alleviated by disclosure. III. Conclusion Judge Riggs concludes that the Plaintiff has satisfied most of the requirements under Fed. R. Civ. P. 23(a) and (b)(3) for class certification. However, the Plaintiff has failed to show that representation is adequate under Fed. R. Civ. P. 23(a)(4). Moreover, the Court may not certify the class action until an appropriate motion appointing class counsel is filed and granted. For these reasons, Judge Riggs denied the Plaintiff's Motion for Class Certification. A full-text copy of the Court's March 23, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2p885n35 from Leagle.com. FIRST WESTERN: Bid to Dismiss Tort Claims in Fleck Suit Denied -------------------------------------------------------------- In the case, THE AARON H. FLECK REVOCABLE TRUST, through its Trustees, Aaron H. Fleck and Barbara G. Fleck, THE BARBARA G. FLECK REVOCABLE TRUST, through its Trustees, Aaron H. Fleck and Barbara G. Fleck, AARON FLECK, and BARBARA G. FLECK, on behalf of themselves and all others similarly situated, Plaintiffs v. FIRST WESTERN TRUST BANK, CHARLES BANTIS, and ANDREW GODFREY Defendants, Civil Action No. 21-cv-01073-CMA-GPG (D. Colo.), Judge Christine M. Arguello of the U.S. District Court for the District of Colorado denied the Defendants' Motion to Dismiss the First Amended Complaint's Tort Claims. I. Introduction The matter is before the Court on the Feb. 17, 2022 Recommendation of United States Magistrate Judge, wherein Judge Gordon P. Gallagher recommends that the Court denies the Defendants' Partial Motion to Dismiss. The Defendants timely filed an Objection to the Recommendation. II. Background The case arises from the Defendants' management of two investment accounts for Plaintiffs Aaron and Barbara Fleck. In May 2018, the Flecks hired Defendant First Western Trust Bank ("FWTB") to manage two trusts with a total amount of $8 million. Defendant Charles Bantis was President of the FWTB branch in Aspen, Colorado, and Defendant Andrew Godfrey was a trust officer at the FWTB Aspen branch. The Flecks and the Defendants agreed that the level of income to be generated from the accounts was between $400,000 to $500,000, with an anticipated overall return in the 6% range. The trust management agreement was formalized in May 2018 when FWTB and the Flecks signed an Investment Policy Statement and Investment Services and Custody Agreement. The Investment Agreement also has a section titled "Waiver of Liability for Negligence." The Plaintiffs allege that prior to entrusting their accounts with FWTB, the Defendants told the Flecks that FWTB "employed professional money managers." Further, FWTB "marketed itself as a registered investment advisor, trust company and private wealth institution" with "strong attention to detail, strong commitment to fiduciary management and well-defined portfolio construction and team coverage for personal service." However, the Plaintiffs contend that these and similar representations were "false and misleading." They allege that had they been aware that their fiduciary amounts would be managed by persons who were not registered investment advisors or professional money managers, they would not have placed their accounts with FWTB. The Plaintiffs further allege that FWTB assured them "both orally and in writing that there would be strong communications and concise statements" in the management of their reviews. However, after the Plaintiffs signed the Investment Agreement with FWTB, "not a single representative of FWTB met with them to check on their understanding of the investment strategies, the investments that were made, or if the Flecks understood FWTB's statements." Moreover, the Plaintiffs allege that in over 12 months of serving as a fiduciary, FWTB reported that it had disbursed over $800,000 to the Flecks, but the Flecks received no distributions. Finally, they allege that when Aaron Fleck realized there were major losses in the trusts in excess of $500,000, he directed FWTB to harvest the losses to offset other gains the Flecks had realized on other personal transactions, and FWTB failed to do so. The Plaintiffs filed suit in state court on March 16, 2021, and the Defendants removed the case to federal court on April 16, 2021. In their Amended Complaint, the Plaintiffs assert five claims for relief: (1) breach of fiduciary duty as an individual and class action claim against FWTB; (2) fraudulent inducement as an individual claim against all the Defendants; (3) fraudulent concealment/non-disclosure as an individual claim against all the Defendants; (4) breach of fiduciary duty as an individual claim against FWTB; and (5) breach of contract as an individual claim against FWTB. The Defendants filed the instant Partial Motion to Dismiss with respect to the Plaintiffs' four tort claims pursuant to Fed. R. Civ. P. 12(b)(6) on May 28, 2021. The Court referred the Defendants' Motion to Judge Gallagher, who issued his Recommendation on Feb. 17, 2022. Therein, Judge Gallagher recommends that the Court denies the Defendants' Partial Motion to Dismiss. The Defendants timely objected, and the Plaintiffs filed a Response to the Objection. III. Discussion Judge Arguello's analysis will proceed in two steps. First, she will review the portions of the Recommendation to which no party objects in order to determine whether there are any clear errors in Judge Gallagher's findings and conclusions. Second, she will conduct a de novo review of the portions of the Recommendation to which the Defendants object. A. Clear Error Review The Defendants' objection "focuses on the recommendation not to dismiss the Plaintiffs' First and Fourth Claims for Relief for breach of fiduciary duty." As such, the Defendants do not appear to object to Judge Gallagher's Recommendation to deny their Partial Motion to Dismiss with respect to the Plaintiffs' Second and Third claims for relief. Judge Arguello has reviewed the relevant pleadings concerning the Plaintiffs' Second and Third claims for relief as well as the Recommendation and applicable legal authority. Based on this review, she is satisfied that Judge Gallagher's Recommendation is sound and not clearly erroneous or contrary to law. Therefore, she affirms and adopts the applicable portions of the Recommendation and denies the Defendants' Partial Motion to Dismiss with respect to the Plaintiffs' Second and Third claims for relief. B. De Novo Review The Defendants object to the Recommendation to the extent it concludes that the Plaintiffs' First and Fourth Claims for Relief should survive dismissal. Specifically, they argue that the Recommendation erred in deciding that the Plaintiffs' First and Fourth Claims for Relief for breach of fiduciary duty are not barred by Colorado's economic loss rule or otherwise precluded under Colorado law. In his Recommendation, Judge Gallagher found that the Plaintiffs plausibly alleged claims for common law breach of fiduciary duty and concluded that there was insufficient information to warrant dismissal of those claims pursuant to the economic loss rule at this stage of the litigation. Specifically, Judge Gallagher noted that the "the language in the contract giving rise to a contractual duty, if any at all, is sparse" and determined that it would be premature to dismiss the Plaintiffs' claims without further factual development or discovery. Judge Arguello agrees with Judge Gallagher that barring the Plaintiffs' breach of fiduciary duty claims under the economic loss doctrine, at this stage, would require the Court "to read language into the contract that is simply not there." Moreover, she finds the Plaintiffs have alleged sufficient facts, taken in the light most favorable to them, that would amount to a violation of a tort duty that is independent of the Investment Agreement. Therefore, dismissal pursuant to the economic loss rule is inappropriate. Judge Arguello overrules the Defendants' Objection and affirms and adopts Judge Gallagher's Recommendation. IV. Conclusion For the foregoing reasons, Judge Arguello overruled the Defendants' Objection. She affirmed and adopted the Feb. 17, 2022 Recommendation of United States Magistrate Judge as an order of the Court. Accordingly, the Defendants' Motion to Dismiss the First Amended Complaint's Tort Claims is denied. A full-text copy of the Court's March 23, 2022 Order is available at https://tinyurl.com/5bennfek from Leagle.com. FRED ASTAIRE DANCE: Williams Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Fred Astaire Dance Studios, Inc. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. Fred Astaire Dance Studios, Inc., Case No. 1:22-cv-02717 (S.D.N.Y., April 1, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Fred Astaire Dance Studios, Inc. -- https://www.fredastaire.com/ -- is a ballroom dance franchise chain of studios in the United States and Canada, named after and co-founded by famous dancer Fred Astaire.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: nyjg@aol.com michael@gottlieb.legal FRESHLY PICKED: Sanchez Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Freshly Picked, LLC. The case is styled as Cristian Sanchez, individually, and on behalf of all others similarly situated v. Freshly Picked, LLC, Case No. 1:22-cv-02576 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Freshly Picked -- https://freshlypicked.com/ -- offers high-quality leather moccasins, soft sole shoes and diaper bags.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com FULLBEAUTY BRANDS: Lawal Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against FullBeauty Brands, Inc. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. FullBeauty Brands, Inc., Case No. 1:22-cv-02639 (S.D.N.Y., March 31, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. FullBeauty Brands -- https://www.fbbrands.com/ -- is an American holding company based in New York City, featuring online and catalog retail brands for plus size women's apparel, big & tall men's apparel, and home goods.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com GANNETT CO: Sells Private Data Without Consent, Batts Alleges ------------------------------------------------------------- CHRISTEPHER BATTS, individually and on behalf of all others similarly situated, Plaintiff v. GANNETT CO., Defendant, Case No. 4:22-cv-10685-SDK-CI (E.D., Mi., March 31, 2022) alleges violation of the Michigan's Preservation of Personal Privacy Act. The Plaintiff alleges in the complaint, to supplement its revenues, the Defendant rents, exchanges, or otherwise discloses its customers' information -- including their full names, titles of publications subscribed to, and home addresses ("Private Reading Information"), as well as myriad other categories of individualized data and demographic information such as gender and interests -- to data aggregators, data appenders, data cooperatives, and other third parties without the written consent of its customers. By renting, exchanging, or otherwise disclosing - rather than selling - its customers' Private Reading Information, the Defendant is able to disclose the information time and time again to countless third parties. The Defendant's alleged disclosure of Private Reading Information and other individualized information is not only unlawful, but also dangerous because it allows for the targeting of particularly vulnerable members of society. While the Defendant profits handsomely from the unauthorized rental, exchange, and disclosure of its customers' Private Reading Information and other individualized information, it does so at the expense of its customers' statutory privacy rights (afforded by the PPPA) because the Defendant does not obtain its customers' written consent prior to disclosing their Private Reading Information. GANNETT CO., INC. operates as a local newspaper company. The Company publishes news through storytelling and events that connect readers and communities, as well as focuses on business practices for sourcing, consumption, and waste. Gannett serves customers in the United Stated. [BN] The Plaintiff is represented by: Frank S. Hedin, Esq. Arun G. Ravindran, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 1140 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 Email: fhedin@hedinhall.com aravindran@hedinhall.com - and - Joseph I. Marchese, Esq. Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212)989-9163 Email: jmarchese@bursor.com pfraietta@bursor.com - and - E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Dennis A. Lienhardt, Esq. William Kalas, Esq. THE MILLER LAW FIRM, P.C. 950 W. University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841-2200 Email: epm@millerlawpc.com ssa@millerlawpc.com dal@millerlawpc.com wk@millerlawpc.com GEICO ADVANTAGE: Murphy Suit Removed to E.D. Pennsylvania --------------------------------------------------------- The case styled as Angelica Murphy, individually and on behalf of a class of similarly situated persons v. Geico Advantage Insurance Company, was removed to the U.S. District Court for the District of Eastern District of Pennsylvania on March 31, 2022. The District Court Clerk assigned Case No. 2:22-cv-01232 to the proceeding. The nature of suit is stated as Insurance Contract. GEICO Advantage Insurance Company -- http://www.geico.com/-- operates as an insurance firm. The Company offers property and casualty insurance services.[BN] The Plaintiff appears pro se. The Defendants are represented by: Kymberly Kochis, Esq. EVERSHEDS SUTHERLAND (US) LLP 1114 Ave. of The Americas 38th Fl New York, NY 10036-7703 Phone: (212) 389-5000 Email: kymberlykochis@eversheds-sutherland.com GEOVERA SPECIALTY: Court Denies Bid to Dismiss Alexander Suit ------------------------------------------------------------- In the case, LARRY W. ALEXANDER, ET AL. v. GEOVERA SPECIALTY INSURANCE CO, Case No. 2:21-CV-03166 (W.D. La.), Judge James D. Cain, Jr. of the U.S. District Court for the Western District of Louisiana, Lake Charles Division, denied the Defendant's Motion to Dismiss the Complaint and/or Strike the Class Action Allegations. I. Background In their Second Amended Complaint, the Plaintiffs allege that at some undetermined time and continuing through the current date, the Defendant engaged in a corporate pattern and practice of breaching its insuring agreements with its insureds by violating Louisiana Revised Statute 22:1892. The Plaintiffs complain that the Defendant employed default settings within its Xactimating software that caused its estimates to result in underpayments. Specifically, the Plaintiffs allege that the software failed to "round up" and account and pay for a full commercial sales unit for plywood, drywall, drip edge and roofing felt on property insurance claims. Instead the software paid for only a fraction of commercial sales units for these material components, despite the fact that a person cannot purchase a fraction of a commercial sales unit of these material components. The Plaintiffs further complain that the Defendant's software failed to apply, account, and pay for the labor unit price for handling measuring, cutting, fitting, installing, and/or disposing of the omitted fractions of the full commercial sales units of the specified material components on property insurance claims as well as the state and local sales tax associated with the omitted fractions. The Plaintiffs suggest that such a practice is a breach of Condition D.2.a(2)-(3) of its property insurance policy pertaining to "Loss Settlement." Consequently, they assert that residents of the state of Louisiana who have made claims for property damage under property insurance policies issued by Defendant have received less in payment on their property insurance claims than the Defendant was obligated to pay or that the Plaintiffs and the Class Members were entitled to receive based upon the failure to "round up" and account and pay for a full commercial sales unit of all the specified material components; the labor unit price thereon; and the state and local taxes on such omitted fractions of the full commercial sales units. Before the Court is Defendant Geovera's Motion to Dismiss the Complaint and/or Strike the Class Action Allegations. Geovera maintains that the Plaintiffs have failed to allege a breach of a specific policy provision and facts that could plausibly establish that the total payment they received was less than what their policy requires. In other words, the Complaint fails to allege any facts regarding the Plaintiffs' loss, such as the adjustment of their insurance claim, any specific policy provision, or facts that would establish that the Plaintiffs' total payment was insufficient. In addition, the Defendant maintains that (1) the Plaintiffs' claim for injunctive relief is (1) time-barred by the two-year contractual limitations period in the policy, and/or (2) barred because the Plaintiffs have an adequate remedy at law in the form of monetary damages. Finally, the Defendant maintains that the Plaintiffs' claim for insurance bad faith fails because such a claim is unavailing in the absence of a viable breach of contract claim. The Defendant further moves to strike the Plaintiffs' class action allegations because (1) the Plaintiffs cannot satisfy any of the requirements of Rule 23(b) of the Federal Rules of Civil Procedure, (2) Rule 23(b)(1) is inapplicable, (3) there is no risk of inconsistent adjudications creating incompatible standards of conduct, and (4) the Plaintiffs have not alleged the existence of a limited fund. Subsequent to the Motion to Dismiss and Motion to Strike, the Plaintiffs filed a Second Amended Complaint to cure the alleged deficiencies argued by the Defendant. In response, the Defendants filed "Defendant Geovera Specialty Insurance Co.'s Motion to Dismiss the Second Amended Class Action Complaint and/or Strike the Class Action Allegations" to address the new allegations. II. Analysis Judge Cain will deem the first Motion to Dismiss the Complaint and/or Strike the Class Action Allegations filed by Defendant Geovera as moot and consider its Motion to Dismiss the Second Amended Class Action Compliant and/or Strike the Class Action Allegations. The Defendant argues that the Plaintiffs' breach of contract claims should be dismissed because they have not alleged facts to plausibly establish that the total payment received was insufficient. It also move to dismiss the Plaintiffs' bad faith claims pursuant to Louisiana Revised Statute 22:1892 and to strike the Plaintiffs' class allegations. A. Breach of contract The Defendant argues that the breach of contract claim must be dismissed because the Second Amended Complaint does not allege that the total payment was insufficient under the policy terms. It complains that the Plaintiffs have failed to allege whether any repairs were completed, and if so the cost. It also complains that the Plaintiffs have failed to allege which, if any, of the four building components at issue have been replaced by a contractor or what the contractor actually charged to perform the work, or if the Plaintiffs asked GeoVera to pay more for an additional fraction of the commercial unit. Judge Cain is concerned that the Plaintiffs have failed to allege sufficient facts to establish a breach of contract claim. However, because the case is in its infancy and discovery has not been conducted, he will allow the Plaintiffs to amend their Complaint to cure these deficiencies. B. Class allegations The Plaintiffs bring their claims on behalf of a putative class consisting of GeoVera's property insurance policyholders in Louisiana, from Aug. 31, 2019, to present. The Property insured Class is defined as: All property insurance policyholders of GEOVERA SPECIALTY INSURANCE COMPANY (GeoVera) in the State of LOUISIANA who, between August 31, 2019 and the present made a claim and received a loss payments from Defendant for damage to their insured property, which claim included one or more of the following specified material components: plywood, drywall, drip edge and roofing felt. The Plaintiffs allege that there are thousands of class members who had a well-defined community of interest in law and fact. They allege that GeoVera set its Xactimate estimating system software default settings to not "roundup" and account and pay for a full commercial sales unit of plywood, drywall, drip edge and roofing felt on property insurance claims. The Plaintiffs allege that the common questions of fact and law for the entire Class include, but not limited to: (i) Whether GeoVera had an obligation under property insurance policies under Condition D.2.a(2)-(3) of its property insurance policies pertaining to Loss Settlement to the Plaintiffs and the Class Member to round up and account and pay for a full commercial sales unit of plywood, drywall, drip edge and roofing felt on property insurance claims; (ii) Whether GeoVera had an obligation to Plaintiffs and Class Members to apply, account and pay for the labor unit price for handling measuring, cutting, fitting, installing, and/or disposing of the omitted fractions of the full commercial sales units of the specified material components on property insurance claims; and (iii) Whether GeoVera had an obligation to the Plaintiff and the Class Members to include compensation for state and local taxes on such omitted fractions of the full commercial sales units of the specified material components on the property insurance claims. Rule 23(a) requires as prerequisites to class certification that "(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. In addition, Rule 23(b)(3) requires that the court finds "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The Defendant argues that the class action allegations fail under Rule 23 because the Plaintiffs are unable to show that the total amount they received to repair their property was not sufficient, and that although it did not round up on certain material components, it may have overpaid on other materials. Judge Cain holds that the necessity of calculating damages on an individual basis will not necessarily preclude class certification. He also finds that the case is in its infancy and that it would be premature at this state of the proceeding to strike the class allegations. He will allow the Plaintiffs to amend their complaint to address the Court's concerns regarding the class allegation and the breach of contract claim. III. Conclusion For the reasons he set forth, Judge Cain denied the Motion to Dismiss the Second Amended Class Action Complaint and/or Strike the Class Action Allegations, and the Plaintiffs are allowed to amend their Complaint. A full-text copy of the Court's March 23, 2022 Memorandum Ruling is available at https://tinyurl.com/4hm4ek49 from Leagle.com. GRAYL INC: Tavarez-Vargas Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Grayl Inc. The case is styled as Carmen Tavarez-Vargas, individually and on behalf of all others similarly situated v. Grayl Inc., Case No. 1:22-cv-02624 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. GRAYL -- https://grayl.com/ -- specializes in the fields of manufacturing, food, and beverage.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com GREY DOG: Fails to Pay Minimum, OT Wages, Jerez Class Suit Alleges ------------------------------------------------------------------ JOSE ALEJANDRO JEREZ, on behalf of himself and all others similarly-situated v. THE GREY DOG, INC., DAVID ETHAN, individually, and PETER STEIN, individually, Case No. 1:22-cv-02662 (S.D.N.Y., March 31, 2022) seeks redress against the Defendants for systematic failure by the Defendants to provide the required minimum wage and/or overtimes wages, as well as for the failure to provide accurate wage statements and wage theft prevention act notification in violation of the pursuant to the Fair Labor Standards Act and the New York Labor Law. The Plaintiff worked for Defendants -- a cafe and coffee shop and its day-to-day overseers -- as a non-exempt employee for 25 years, ending on March 14, 2020. During his employment, the Defendants required Plaintiff to work, and Plaintiff indeed did work, at least 40 hours per week while being paid according to a flat weekly rate, by check, regardless of the number of hours worked in a given week. However, the Defendants never paid Plaintiff an overtime premium for those hours worked over 40 in a week while he was employed by Defendants. Thus, the Defendants failed to pay the Plaintiff at a rate of one and one half his regular hourly rate for hours worked in a week over forty in violation of the FLSA and the NYLL, alleges the suit. Moreover, Plaintiff did not receive an accurate wage theft prevent act notification at the time of hiring and did not receive accurate wage statements each week in violation of the NYLL. The Defendants paid and treated all of their non-managerial salespeople in the same manner.[BN] The Plaintiff is represented by: Frank J. Tantone, Esq. BELL LAW GROUP, PLLC 116 Jackson Avenue Syosset, NY 11791 Telephone: (516) 280-3008 E-mail: ft@Belllg.com H&R ACCOUNTS INC: Powell Files TCPA Suit in D. South Carolina ------------------------------------------------------------- A class action lawsuit has been filed against H&R Accounts Inc. The case is styled as Amy Powell, on behalf of herself and others similarly situated v. H&R Accounts Inc., Case No. 7:22-cv-01052-JD (D.N.C., April 1, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. H&R Accounts, Inc. is a debt collection agency located in Moline, Illinois.[BN] The Plaintiff is represented by: Dave Maxfield, Esq. DAVE MAXFIELD, ATTORNEY, LLC PO Box 11865 Columbia, SC 29211 Phone: (803) 509-6800 Fax: (855) 299-1656 Email: dave@consumerlawsc.com HEALTH PLUS: Jaquez Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Health Plus, Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Health Plus, Inc., Case No. 1:22-cv-02669 (S.D.N.Y., March 31, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Health Plus -- https://www.healthplusinc.com/ -- provides 100% Natural Dietary Supplements.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com HOMOLOGY MEDICINES: Bronstein Gewirtz Reminds of May 24 Deadline ---------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Homology Medicines, Inc. ("Homology" or the "Company") (NASDAQ: FIXX ) and certain of its officers, on behalf of all persons and entities that purchased or otherwise acquired Homology securities between June 10, 2019 and February 18, 2022, (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/fixx. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws. 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: (1) the Company had overstated HMI-102's efficacy and risk mitigation; (2) accordingly, it was unlikely that the Company would be able to commercialize HMI-102 in its present form; and (3) as a result, the Company's public statements were materially false and misleading at all relevant times. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/fixx or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Nathanson of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Homology you have until May 24, 2022, to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. Attorney advertising. Prior results do not guarantee similar outcomes. View source version on businesswire.com:https://www.businesswire.com/news/home/20220331005010/en/ [GN] HORNELL BREWING: Iglesias Sues for False and Misleading Advertising ------------------------------------------------------------------- Thomas Iglesias, individually and on behalf of all others similarly situated v. HORNELL BREWING CO., INC., Case No. 3:22-cv-01795-VC (N.D. Cal., March 21, 2022), is brought against the Defendant for false and misleading advertising in violation of California's Business & Professions Codes and the Consumers Legal Remedies Act. The Defendant falsely labels and advertises its AriZona beverage products, including but not limited to, AriZona Kiwi Strawberry Fruit Juice Cocktail, Lemonade Fruit Juice Cocktail, Mucho Mango Fruit Juice Cocktail, Fruit Punch Fruit Juice Cocktail, Orangeade, Grapeade, Lemonade Drink Mix, Golden Bear Strawberry Lemonade, and Rx Energy as being "All Natural," when in reality, they contain added coloring, including but not limited to "beta carotene," "fruit and vegetable juices," "annatto," and "vegetable juice." The "All Natural" AriZona beverages are collectively referred to as (the "Products"). The prominent label "ALL NATURAL" is depicted on the front of the Product container, to mislead consumers to believe that the Products are entirely natural. The Defendant has realized that, based on the public's concern about natural and healthy foods, there is a financial benefit to be derived in selling products claiming to be natural. Accordingly, the Defendant labels its Products as "All Natural," even though the Products contain added coloring in violation of California and federal advertising laws. The Defendant made and continues to make false and misleading statements in its advertising of the Products. Specifically, Defendant labels the Products as "All Natural" (depicted in capital letters on the front label) and markets them as such, even though the Products contain coloring additives, says the complaint. The Plaintiff is a purchaser of the Products within the State of California. The Defendant is among the United States' leading producers of beverage products.[BN] The Plaintiff is represented by: Ryan J. Clarkson, Esq. Yana Hart, Esq. CLARKSON LAW FIRM, P.C. 22525 Pacific Coast Highway Malibu, CA 90265 Phone: (213) 788-4050 Fax: (213) 788-4070 Email: rclarkson@clarksonlawfirm.com yhart@clarksonlawfirm.com IRVING FARM COFFEE: Iskhakova Files ADA Suit in E.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Irving Farm Coffee Co., Inc. The case is styled as Marina Iskhakova, on behalf of herself and all others similarly situated v. Irving Farm Coffee Co., Inc., Case No. 1:22-cv-01845 (E.D.N.Y., April 1, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Irving Farm Coffee -- https://irvingfarm.com/ -- offers the freshest, most delicious coffee that is sourced and roasted by Irving Farm Coffee Roasters.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com J.MCLAUGHLIN LLC: Dawkins Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against J.McLaughlin, LLC. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. J.McLaughlin, LLC, Case No. 1:22-cv-01839-EK-MMH (E.D.N.Y., April 1, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. J.McLaughlin -- https://www.jmclaughlin.com/ -- is a destination for defining style offering a collection of women's and men's clothing and accessories that reflects casual, classic style peppered with a dose of wit.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com JIMMY'S HEALTHY FOODS: Mejia Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Jimmy's Healthy Foods Inc. The case is styled as Jose Mejia, individually, and on behalf of all others similarly situated v. Jimmy's Healthy Foods Inc., Case No. 1:22-cv-02623 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Jimmy's Healthy Foods Inc. doing business as JiMMYBAR -- https://jimmybars.com/ -- offers low sugar, high protein bar.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com KAO USA: Jergens Ultra Recalled Due to Bacterial Contamination -------------------------------------------------------------- Anna Bradley-Smith at topclassactions.com reports that KAO USA Inc. has expanded its Jergens(R) Ultra Healing Moisturizer recall. Two additional lot codes of the 3 oz. size lotion have been added: ZU722861 and ZU722871. The recall stems from suspicion of contamination by the bacterium Pluralibacter gergoviae. This bacterium poses a risk of infection to individuals with weakened immune systems. KAO USA continues to investigate the scope of the potential contamination. Any customers with the affected lot numbers are urged to stop use of the lotion and to contact the Kao USA Inc. Consumer Care Center at 1-800-742-8798 or consumer@kao.com. Customers will receive a free product coupon and a postage paid label with a plastic bag via mail to return the recalled product. Kao USA Jergens Ultra Healing Moisturizer Recall Overview: Who: Kao USA is recalling several lots of Jergens Ultra Healing Moisturizer in 3 oz. and 10 oz. sizes. Why: The products have been pulled from the shelves due to bacterial contamination. Where: The recall is effective in the United States. (3/16/2022) Consumers are being urged to check their Jergens moisturizers after a number of the brands' products were pulled from the shelves due to bacterial contamination. In a recall notice posted by manufacturer Kao USA, the company says it is recalling several lots of Jergens Ultra Healing Moisturizer, 3 oz. and 10 oz. sizes, after Pluralibacter gergoviae bacteria was detected. The company says it "takes the safety of its products seriously," and as such, it was issuing the voluntary recall. Jergens Ultra Healing Moisturizer Bacteria Poses Risk of Infection to Some Although Pluralibacter gergoviae rarely poses medical risk to healthy people, those with weakened immune systems and other health issues may be more susceptible to infections. Kao says the recall is limited to 3 oz. size bottles with lot codes: ZU712851 ZU712861 ZU712871 ZU712881 ZU712911 ZU722851 ZU722881 And 10 oz. bottles with lot codes: ZU722741 ZU722771 ZU722781 ZU732781 ZU732791 ZU732801 ZU732811 ZU732821 Kao is urging customers to stop using the recalled moisturizers and call the company for a replacement coupon. The company says further investigation is needed to determine the scope of the issue, but for now it has removed the product in question from warehouses, and it is working with retailers to ensure the product does not remain on store shelves. In 2020, Kimberly-Clark issued a Cottonelle Flushable Wipes recall over concerns that two varieties of the wipes could be contaminated with the same bacteria. The company was quickly hit with a class action lawsuit from consumers who said they were seeking "recovery for the personal and economic harms caused by the recall of millions of contaminated, dangerous, and now-worthless flushable wipes . . . ." [GN] KIRAKU GLEN: Ng Seeks Unpaid Minimum, OT Wages Under FLSA, NYLL --------------------------------------------------------------- LAI KUAN NG, on behalf of herself and others similarly situated, Plaintiff v. KIRAKU GLEN HEAD INC. d/b/a KIRAKU, JIN HANG ZHENG, and MENG JIN LIN, Case No. 2:22-cv-01780 (E.D.N.Y., March 30, 2022) seeks to recover unpaid minimum wages due to invalid tip credit, unpaid overtime wages due to invalid tip credit, unpaid wages due to time-shaving, liquidated damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act and the New York Labor Law. The Defendants jointly employed Plaintiff and similarly situated employees. The Defendants own and operate a Japanese-cuisine restaurant under the tradename of Kiraku, located at 127 Glen Head Road, Glen Head, New York.[BN] The Plaintiff is represented by: Clara Lam, Esq. BROWN KWON & LAM, LLP 521 Fifth Avenue, 17th Floor New York, NY 10175 Telephone: (212) 295-5828 Facsimile: (718) 795-1642 E-mail: clam@bkllawyers.com LAKEVIEW LOAN: Faces Guarino Class Action Suit Over Data Breach --------------------------------------------------------------- ANDREW GUARINO, individually and on behalf of themselves and all others similarly situated v. LAKEVIEW LOAN SERVICING, LLC, Case No. 1:22-cv-20981 (S.D. Fla., March 31, 2022) arises out of the recent cyber attack and data breach at Lakeview Loan Servicing that targeted the information of consumers who utilized LLS for residential mortgage services (the "Data Breach"). The alleged Data Breach resulted in unauthorized access to the sensitive data of consumers that used LLS's services. Because of the Data Breach, 2,537,261 Class Members' suffered ascertainable losses inclusive of out-of-pocket expenses and the value of their time incurred to remedy or mitigate the effects of the attack and the present and substantial risk of imminent harm caused by the compromise of their sensitive personal information, including their name, address, loan number, and social security number (and, for some, information connected with a loan application, a loan modification, or other items involving their loan's servicing (the "Personally Identifiable Information" or "PII"). To compound matters, LLS's Data Breach occurred from October 27, 2021 through December 7, 2021 and LLS did not ascertain what information was accessed until January 31, 2022. Then LLS sat on the information for over a month -- failing to disseminate data breach consumer notifications until March 18, 2022. When a data set that is inclusive of the aforementioned PII is breached, every moment is precious to ensure that that data is not then weaponized against the rightful owner of that data through identity theft. Sitting on this information allowed LLS to dodge responsibility and inevitably worsened the Data Breach victims' chances at weathering the storm that LLS created, says the suit. As a result of the Data Breach, the Plaintiff and Class Members have been harmed -- they have been exposed to a heightened and imminent risk of fraud and identity theft. The Plaintiff and Class Members must now and forever closely monitor their financial accounts to guard against identity theft. Plaintiff Guarino is a citizen of the Commonwealth of Massachusetts and was harmed by the alleged Data. Lakeview Loan Servicing is a private residential mortgage loan servicer. The Plaintiff is represented by: Jonathan Cohen, Esq. Gary M. Klinger, Esq. David K. Lietz, Esq. Blake Hunter, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 3833 Central Ave. St. Petersburg, FL 33713 Telephone: 865-247-0080 E-mail: jcohen@milberg.com gklinger@milberg.com dlietz@milberg.com byagman@milberg.com LAKEVIEW LOAN: Fails to Secure Customers' Info, Rivera Suit Says ---------------------------------------------------------------- EVELYN RIVERA, ALISHIA CARTAGENA, and DOREEN ENDRESS, on behalf of themselves and all others similarly situated v. LAKEVIEW LOAN SERVICING, LLC, Case No. 1:22-cv-20968 (S.D. Fla., March 30, 2022) is a class action lawsuit that stems from Lakeview's failure to secure the sensitive personal information (PII) of its customers and employees. The PII includes without limitation, name, address, loan number, and Social Security number and, for some, information provided in connection with a loan application, loan modification, or other items regarding loan servicing. On October 27, 2021, an intruder gained entry to Defendant's network system, accessed the PII stored therein, and exfiltrated information from Lakeview's systems (the "Data Breach"). In early December 2021, the Defendant identified this "security incident involving unauthorized access to [its] file servers." The Defendant determined that "an unauthorized person obtained access to files on [its] file storage servers from October 27, 2021 to December 7, 2021." On January 31, 2022, the review process generated a preliminary list of individuals affected by the Data Breach. Defendant determined that the unauthorized actor accessed and exfiltrated the PII of more than 2,537,261 current and former Lakeview customers ("Class Members"), including that of Plaintiffs and Class Members. On March 18, 2022, the Defendant began notifying Plaintiffs and Class Members of the Data Breach. By obtaining, collecting, using, and deriving a benefit from Plaintiffs' and Class Members' PII, Defendant assumed legal and equitable duties to these individuals. The Defendant admits that the unencrypted PII accessed and exfiltrated includes highly sensitive information, such as names, dates of birth, addresses, phone numbers, financial or bank account information, Social Security numbers, insurance information and account numbers, medical information including history, condition, treatment and diagnosis, medical record numbers, driver's license numbers, and email addresses. The exposed PII of Defendant's current and former customers can be sold on the dark web. Plaintiffs are informed and believe that their information has already been placed onto the dark web. Hackers can now access and/or offer for sale the unencrypted, unredacted PII to criminals. Defendant’s current and former customers face a lifetime risk of identity theft, which is heightened by the loss of their Social Security numbers, the lawsuit says. Until notified of the breach, the Plaintiffs and Class Members had no idea their PII had been compromised, and that they were, and continue to be, at significant risk of identity theft and various other forms of personal, social, and financial harm. The risk will remain for their rest of their lives. The Plaintiffs and Class Members who obtained loan services from Defendant were required to entrust some of their most sensitive and confidential information. The Defendant is a mortgage loan servicer. Lakeview obtains certain personally identifying information related to its customers -- current and former mortgagees, as well as mortgage applicants—in furtherance of services it performs on their behalf.[BN] The Plaintiffs are represented by: John A. Yanchunis, Esq. Ryan D. Maxey, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jyanchunis@ForThePeople.com rmaxey@ForThePeople.com - and - Adam E. Polk, Esq. Jordan Elias, Esq. Simon Grille, Esq. Kimberly Macey, Esq. GIRARD SHARP LLP 601 California St, Ste 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 E-mail: apolk@girardsharp.com jelias@girardsharp.com sgrille@girardsharp.com kmacey@girardsharp.com - and - Joseph M. Lyon, Esq. THE LYON FIRM, LLC 2754 Erie Avenue Cincinnati, OH 45208 Telephone: (513) 381-2333 E-mail: jlyon@thelyonfirm.com LAKEVIEW LOAN: Fails to Secure Customers' Personal Info, Suit Says ------------------------------------------------------------------ JOHN MCMAHON, individually and on behalf of all others similarly situated v. LAKEVIEW LOAN SERVICING, LLC, Case No. 1:22-cv-20978-RNS (S.D. Fla., March 31, 2022) is a class action complaint against Lakeview Loan to hold the Defendant accountable for the harm it caused Plaintiff and over 2.5 million similarly situated people (Class Members), from its failure to properly secure and safeguard its customers' sensitive personally identifiable information (PII), including their names, addresses, loan numbers and Social Security numbers, and potentially information provided in connection with a loan application, loan modification, or other items regarding loan servicing. In early December 2021, Lakeview discovered that an unauthorized threat actor gained access to its file servers. Upon further investigation, Lakeview determined that the unauthorized threat actor obtained access to files on Lakeview’s server for at least almost a month and a half, from October 27, 2021 to December 7, 2021, which included Plaintiff's and Class Members' sensitive PII (the Data Breach). In mid-March 2022, almost five months after Lakeview believes the Data Breach began, Lakeview finally started sending Data Breach incident letters to Plaintiff and Class Members. Lakeview also sent templates of the Data Breach incident letters to state attorneys general including the Maine Attorney General. The notification sent to the Maine Attorney General identified that approximately 2,537,261 individuals like Plaintiff had their PII accessed, exfiltrated, and/or compromised by the Data Breach. Lakeview also reported the Data Breach to the California Attorney General's Office, says the suit. According to the complaint, the Data Breach occurred because Lakeview failed to adequate and reasonable cyber-security procedures and protocols to protect the PII of Plaintiff and Class Members. Indeed, the deficiencies in Lakeview's data security protocols and practices were so significant that unauthorized person(s) were able to access, view, and/or exfiltrate Plaintiff's and Class Members’ PII that can be made available for sale on the illegal marketplace known as the "dark web." Accordingly, Plaintiff, on behalf of himself and Class Members, assert claims for negligence, negligence per se, breach of contract, breach of implied contract, breach of confidence, intrusion upon seclusion, violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), and violation of the Maryland Consumer Protection Act. The Plaintiff and Class Members seek declaratory and injunctive relief, monetary damages, and all other relief as authorized in equity or by law. Lakeview touts itself as the Fourth Largest Mortgage Servicer in the United States and claims to work with more than 1.4 million customers annually with their mortgages. [BN] The Plaintiff is represented by: Stuart A. Davidson, Esq. Dorothy P. Antullis, Esq. Eric S. Dwoskin, Esq. Maxwell H. Sawyer, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 Facsimile: (561) 750-3364 E-mail: sdavidson@rgrdlaw.com dantullis@rgrdlaw.com edwoskin@rgrdlaw.com msawyer@rgrdlaw.com - and - Terence R. Coates, Esq. Dylan J. Gould, Esq. MARKOVITS, STOCK & DEMARCO, LLC 119 E. Court Street, Suite 530 Cincinnati, OH 45202 Telephone: (513) 651-3700 Facsimile: (513) 665-0219 E-mail: tcoates@msdlegal.com dgould@msdlegal.com LEMONADE INC: Faces Clarke Class Suit Over Biometrics' Collection ----------------------------------------------------------------- Alexander Clarke, Milton Citchens, Andrew Garcia, Ebony Jones, Kyle Swerdlow, Marlaw Walker, and Ryan Webb, individually and on behalf of all others similarly situated, v. Lemonade, Inc., Lemonade, Ltd. Lemonade Insurance Company, Lemonade Insurance Agency, LLC, and Lemonade Life Insurance Agency, LLC, Case No. 2022LA000308 (Ill. Cir., Dupage Cty., March 31, 2022) seeks damages and other legal and equitable remedies resulting from the illegal actions of the Defendants in collecting, storing, and using the Plaintiffs' and other similarly situated individuals' biometric identifiers and biometric information without obtaining informed written consent or providing the data retention and destruction policies to consumers. The Plaintiffs bring this action for damages and other legal and equitable remedies against all Defendants resulting from their unfair and deceptive collection, storage, and use of biometric information without Plaintiffs' and the Class's knowledge and consent in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, and the California Unfair Competition Law. Additionally, the Defendants Lemonade, Inc. and Lemonade, Ltd.'s alleged collection, storage and use of biometric information without Plaintiffs' and the Class's knowledge and consent constitutes unfair and deceptive acts and practices in violation of the Illinois Consumer Fraud and Deceptive Businesses Practices Act, and the California Unfair Competition Law. Lemonade, Inc. is a Delaware holding company with operating subsidiaries based in New York. The company uses artificial intelligence and behavioral economics to process insurance claims from its subsidiaries, Lemonade Insurance, which offer homeowners, renters, and pet insurance in the United States. According to Lemonade's securities filing, customers seeking renters or homeowners' insurance can have a two-minute chat with its bot, AI Maya, while claims can be filed by chatting with another bot, AI Jim, which pays claims in as little as three seconds.[BN] The Plaintiff is represented by: Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Telephone: (866) 252-0878 E-mail: gklinger@milberg.com - and - Katrina Carroll, Esq. CARLSON LYNCH, LLP 111 W. Washington Street, Suite 1240 Chicago, IL 60602 Telephone: (312) 750-1265 E-mail: kcarroll@carlsonlynch.com - and - Joseph P. Guglielmo SCOTT+SCOTT ATTORNEYS AT LAW LLP 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: 212-223-6444 Facsimile: 212-223-6334 E-mail: jguglielmo@scott-scott.com - and - Frederick J. Klorczyk III, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-Mail: fklorczyk@bursor.com - and - Jonathan M. Jagher, Esq. FREED KANNER LONDON & MILLEN LLC 923 Fayette St. Conshohocken, PA 19428 Telephone: (610) 234-6487 Facsimile: (224) 632-4521 E-mail: jjagher@fklmlaw.com MCDONALD'S CORP: Big Mac's Packaging Contains PFAS, McDowell Says ----------------------------------------------------------------- KEN MCDOWELL, individually and on behalf of all others similarly situated v. MCDONALD'S CORPORATION, Case No. 1:22-cv-01688 (N.D. Ill., March 31, 2022) is a class action lawsuit on behalf of the Plaintiff and similarly situated consumers who purchased for personal, family, or household use, Defendant's Big Mac, which is unfit for human consumption because the packaging in which it is contained -- and is essential and integral to delivering the Product to the consuming public contains unsafe per- and polyfluoralkyl substances. PFAS are a group of synthetic chemicals known to be harmful to both the environment and humans. Because PFAS persist and accumulate over time, they are harmful even at very low levels. Indeed, "PFAS have been shown to have a number of toxicological effects in laboratory studies and have been associated with thyroid disorders, immunotoxic effects, and various cancers in epidemiology studies." In fact, scientists are studying -- and are extremely concerned about -- how PFAS affect human health. Consequently, the CDC outlined "a host of health effects associated with PFAS exposure, including cancer, liver damage, decreased fertility, and increased risk of asthma and thyroid disease." Despite Defendant's alleged representations to consumers that their products are "safe," and "sustainable," including in its website and the Product packaging -- which is an essential and integral part of delivering the Product to consumers -- independent research conducted by Consumer Reports determined that the Product packaging—which is an essential and integral part of delivering the Product to consumers -- contains 195.3 parts per million (ppm) of total organic fluorine." Accordingly, Plaintiff brings his claims against Defendant individually and on behalf of a class of all other similarly situated for violation of California's Unfair Competition Law; violation of the Consumer Legal Remedies Act; (3) breach of the Implied Warranty under Song-Beverly Consumer Warranty Act and California Commercial Code; violation of California's False Advertising Law; Fraud; Constructive Fraud; Fraudulent Inducement; Money Had And Received; Fraudulent Omission or Concealment; Fraudulent Misrepresentation; and Negligent Misrepresentation. Plaintiff Ken McDowell is a natural person and citizen of California who resides in San Rafael, California. Plaintiff McDowell has purchased the Product from Defendant for several years, including as recently as March 2022 from a McDonald's located in San Rafael, California. Mr. McDowell suffered and continues to suffer, economic injuries, the suit says. McDonald's is an American multinational fast food corporation, founded in 1940 as a restaurant operated by Richard and Maurice McDonald, in San Bernardino, California, United States.[BN] The Plaintiff is represented by: Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W. Jackson St., Suite 1700 Chicago, IL 60604 Telephone: (312) 984-0000 Facsimile: (212) 686-0114 E-mail: malmstrom@whafh.com - and - L. Timothy Fisher, Esq. Sean L. Litteral, Esq. Julia K. Venditti, Esq. Joshua D. Arisohn, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com slitteral@bursor.com jvenditti@bursor.com jarisohn@bursor.com aleslie@bursor.com MCDONALD'S CORP: Faces Class Suit Over PFAS Use in Packaging ------------------------------------------------------------- The Madison County Record reports that McDonald's is facing a multi-state consumer class action lawsuit over its use of per- and polyfluoroalkyl (PFAS) substances in packaging because of alleged migration of those chemicals into food products. PFAS are considered "forever chemicals" because their carbon-fluorine bonds are extremely strong and not appreciably degraded under environmental conditions, according to the lawsuit filed March 28 at the Southern District of Illinois. "Exposure to PFAS can be incredibly devastating to vulnerable populations including young children and pregnant women," the suit claims. "PFAS are capable of crossing the placenta, meaning pregnant women transfer PFAS to their unborn children. Women exposed to PFAS during pregnancy have higher risks of gestational diabetes and pre-eclampsia, and their babies are more likely to undergo abnormal growth in utero, leading to low birth weight, and later face an increased risk of childhood obesity and infections." McDonald's has not yet responded to a request for comment. The suit was filed by attorney Steffan T. Keeton of the Keeton Firm in Pittsburgh on behalf of lead plaintiff Larry Clark of Illinois who claims to have made purchases primarily in Effingham, Jackson, Madison and St. Clair counties, as well as across the U.S. Keeton seeks to include class members from California, Florida, Massachusetts, Minnesota, Missouri, New Jersey, New York, Pennsylvania, Oregon, and Washington. Compensatory and punitive damages in excess of $5 million are sought, as well as an order requiring McDonald's to immediately cease and desist from selling their "misbranded products," among other demands. According to the lawsuit, the use of PFAS in McDonald's packaging "stands in stark contrast to McDonald's brand identity which espouses food safety." "Even though McDonald's Corporation has been using PFAS in its products for decades, it repeatedly denied that PFAS were used in the products," it claims. "Only recently in 2021, McDonald's Corporation admitted that PFAS are used in the Products." It further claims that McDonald's uses a "profits over people" approach to "save pennies" per unit sold. "The Products Plaintiff and Class Members purchased are either worthless or worth less than the purchase price because Defendant failed to disclose that they contain PFAS which are dangerous to the health of the consumer and to the environment." The suit claims violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. breach of express warranties, breach of implied warranty of merchantability, violation of Magnusson-Moss Warrant Act and unjust enrichment. U.S. District Judge Nancy Rosenstengel has been assigned to the case. [GN] MORGAN GRAHAM: Fails to Pay Proper Wages, Baker Suit Alleges ------------------------------------------------------------ BRIANNA D. BAKER, individually and on behalf of all others similarly situated, Plaintiff v. MORGAN GRAHAM, INC. d/b/a AROUND THE CLOCK CARE, Defendant, Case No 3:22-cv-00035-RLY-MPB (S.D., IN., March 31, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Baker was employed by the Defendant as caregiver. MORGAN GRAHAM, INC. d/b/a AROUND THE CLOCK CARE provides 24/7 in-home care services in Sydney, Central Coast and the Blue Mountains. [BN] The Plaintiff is represented by: Robert P. Kondras, Jr., Esq. HASSLER KONDRAS MILLER LLP 100 Cherry Street Terre Haute, IN 47807 Telephone: (812) 232-9691 Facsimile: (812) 234-2881 Email: kondras@hkmlawfirm.com NEOGENOMICS INC: Rosen Law Discloses Securities Class Action ------------------------------------------------------------ WHY: Rosen Law Firm, a global investor rights law firm, announces an investigation of potential securities claims on behalf of shareholders of NeoGenomics, Inc. (NASDAQ: NEO) resulting from allegations that NeoGenomics may have issued materially misleading business information to the investing public. SO WHAT: If you purchased NeoGenomics securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law Firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to https://rosenlegal.com/submit-form/?case_id=4888 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On March 28, 2022, NeoGenomics issued a press release announcing that its Chief Executive Officer "will step down as CEO and member of the Board, effective immediately." The Company also announced that it "expects revenue for Q1 2022 may be below the low end of its prior guidance of $118 - $120 million and EBITDA for Q1 2022 will be below the low end of its prior guidance of $(15) - $(12) million." NeoGenomics disclosed that "[t]he larger than anticipated EBITDA loss was primarily driven by higher than anticipated Clinical Services cost of goods sold" and that it "has withdrawn its 2022 annual financial guidance issued February 23, 2022." On this news, NeoGenomics's stock price fell $5.30 per share, or 29%, to close at $12.49 per share on March 29, 2022. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources, or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. [GN] NEW YORK, NY: Leslie Sues Over Unlawful Collection of DNA --------------------------------------------------------- Shakira Leslie and Shamill Burgos, on behalf of themselves and all others similarly situated v. CITY OF NEW YORK; KEECHANT SEWELL, Police Commissioner for the City of New York, in her official capacity; KENNETH COREY, Chief of Department for the New York City Police Department, in his official capacity; JAMES ESSIG, Chief of Detectives for the New York City Police Department, in his official capacity; EMANUEL KATRANAKIS, Deputy Chief in the Forensic Investigations Division of the New York City Police Department, in his official capacity; and DR. JASON GRAHAM, Acting Chief Medical Examiner for the City of New York, in his official capacity; Case No. 1:22-cv-02305-NRB (S.D.N.Y. March 21, 2022), is brought to challenge New York City's policy and practice of secretly taking and analyzing the DNA of people whom the police suspect of committing a crime without a warrant or court order and maintaining this DNA in an index where it is perpetually compared to past and future crime scene evidence. Through this practice, the City has seized the DNA of thousands of unsuspecting, primarily Black and Latinx New Yorkers, and turned them into permanent criminal suspects. For years now, New York City Police Department ("NYPD") detectives have targeted unsuspecting New Yorkers, including young children, by bringing them into interrogation rooms that have been prepared in advance to capture saliva, skin cells, or other genetic material. In these interrogation rooms, detectives offer people cigarettes and drinks to secretly collect their DNA. In one example, detectives handed a 12-year-old boy a McDonald's soda and, after the boy drank from it and was escorted out the room, they secretly removed the straw for DNA testing and placed the boy's DNA in an index of people suspected of criminal activity ("the Suspect Index"). The NYPD sends these DNA samples to the Office of Chief Medical Examiner ("OCME"), which analyzes the samples, creates a DNA profile, and compares that profile to crime scene DNA evidence in perpetuity. Through the Suspect Index, the NYPD and OCME partner to put people's DNA profiles through a genetic lineup that compares the profiles against all past and future crime scene DNA evidence—all without obtaining a warrant or court order to conduct these DNA searches. The Suspect Index is illegal. Unlike state and federal DNA index systems, the City's Suspect Index lacks legislative authorization. As a result, it operates without any independent oversight. New York law prohibits the indexing of a person's DNA unless the person has been convicted of a crime. Nonetheless, the City's Suspect Index ignores state laws and regulations that limit DNA indexing and hoards the DNA of arrestees and suspects. Without any independent oversight, the NYPD and OCME have additionally deployed a new and invasive investigatory technique using DNA samples to investigate a suspect's entire family. Because of a history of institutional racism and disparities in arrest rates in New York City, Black and Latinx people make up the vast majority of arrestees who are subject to the City's DNA taking and indexing practice. And, with the City's new genealogical investigative technique, the parents, grandparents, siblings, children, and even the distant relatives of suspects and arrestees can be swept into the City's genetic investigations. The Defendants have violated and continue to violate the Plaintiffs' rights under the Fourth Amendment of the United States Constitution and their rights under New York law. The Plaintiffs seek injunctive and declaratory relief to end the City's practice of targeting thousands of individuals, many of whom have never been convicted of a crime, to take their DNA and turn them into permanent suspects, says the complaint. The Plaintiffs are a Black and a Latino residents of New York City and has no criminal convictions whose DNA was taken from them by the Defendants without their knowledge. The City of New York is a municipal corporation within the State of New York.[BN] The Plaintiffs are represented by: Philip Desgranges, Esq. J. David Pollock, Esq. Brittany Thomas, Esq. Anna Blondell, Esq. Allison Durkin, Esq. Lisa Freeman, Esq. Corey Stoughton, Esq. THE LEGAL AID SOCIETY 199 Water Street New York, NY 10038 Phone: 212-577-3398 Email: pdesgranges@legal-aid.org jpollock@legal-aid.org bthomas@legal-aid.org ablondell@legal-aid.org adurkin_fellow@legal-aid.org lafreeman@legal-aid.org cstoughton@legal-aid.org NEW YORK: Srabyan's Amended Complaint Dismissed With Prejudice -------------------------------------------------------------- In the case, NVARD SRABYAN, A.V., a minor, by his parent and guardian ad litem, NVARD SRABYAN, and M.V., a minor, by her parent and guardian ad litem, NVARD SRABYAN, individually and on behalf of all others similarly situated, Plaintiffs v. THE STATE OF NEW YORK, NEW YORK STATE EDUCATION DEPARTMENT, ANDREW CUOMO, in his personal capacity and official capacity as Governor of the State of New York, SHANNON TAHOE, in her personal capacity and official capacity as Interim Commissioner of Education for the State of New York, BILL DE BLASIO, in his personal capacity and official capacity as Mayor of New York City, THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION, and RICHARD CARRANZA, in his personal capacity and official capacity as Chancellor of the New York City Department of Education, Defendants, Case No. 20-CV-3137 (NGG) (RML) (E.D.N.Y.), Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York dismissed the Plaintiffs' Amended Complaint. I. Background The Plaintiffs are two New York City public school students, A.V. and M.V., and their mother, Nvard Srabyan. Together they bring the putative class action following a series of Executive Orders issued by then-Governor Andrew Cuomo in response to the COVID-19 pandemic that directed every school in New York State to close its doors and shift to remote learning for the remainder of the 2019-2020 school year. According to the Plaintiffs, these Orders, and the blended learning plans for the 2020-2021 school year, represent "an attack on our liberties and unalienable rights for all students to have an equal opportunity to receive education," and "can be construed as an attempt to subvert our democratic government and move this nation a step closer towards totalitarianism." The Plaintiffs' 70-page, 264-paragraph amended complaint begins with a quote from Lewis Carroll's Alice's Adventures in Wonderland. An apt reference, because by the end, one feels as if they've gone through the looking glass. They allege the Executive Orders violated some 19 federal and state constitutional rights. Under the U.S. Constitution, they allege that Defendants violated the Commerce Clause; Contracts Clause; Republican Guarantee Clause; prohibition on Bills of Attainder and Ex Post Facto laws; the Fifth Amendment's Takings Clause; the Sixth, Seventh, Ninth, Tenth, and Thirteenth Amendments; and the Fourteenth Amendment's Procedural Due Process, Substantive Due Process, Equal Protection, and Privileges and Immunities Clauses. For good measure, they tack on several alleged violations of the New York State Constitution. They seek declaratory and injunctive relief, as well as a general request for unspecified damages. The Defendants move to dismiss the complaint on a host of grounds pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). II. Discussion A. Plaintiffs Abandoned most of their Claims The Defendants moved to dismiss each alleged cause of action for failure to state a claim. The Plaintiffs respond to only three of those arguments and have, therefore, abandoned the unaddressed causes of action. Thus, all but three of the original 19 causes of action are dismissed. The remaining claims are for alleged violations under the Equal Protection Clause, the Commerce Clause, and the Contracts Clause. B. Plaintiffs' Request for Declaratory & Injunctive Relief is Moot Judge Garaufis explains that a case becomes moot—and therefore no longer a 'Case' or 'Controversy' for purposes of Article III -- when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." In the case, New York (City and State) has reopened its schools; Governor Cuomo rescinded the declaration of a disaster emergency and the challenged Executive Orders; and the New York Legislature curtailed the Governor's emergency powers to reissue COVID-19 restrictions. In light of these developments, the Second Circuit in a series of summary orders has held that similar challenges to previous COVID-19-related Executive Orders were moot. Judge Garaufis now follows suit and dismisses the Plaintiffs' claims for declaratory and injunctive relief as moot. Because the Plaintiffs also seek damages, however, their remaining claims survive. C. Plaintiffs Lack Standing To establish standing, the plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" A "particularized" injury "affects the plaintiff in a personal and individual way." "A 'concrete' injury must be 'de facto'; that is, it must actually exist"; it must be "real," and not "abstract." Judge Garaufis dismisses the remaining claims for damages because he finds that the Plaintiffs lack standing to assert them. He holds that the Plaintiffs fail to establish injury in fact, "the first and foremost of standing's three elements," because the alleged injuries are neither particularized nor concrete. The Plaintiffs' displeasure with the New York City Public Schools curricula is not a concrete injury arising out of remote learning that satisfies Article III standing. In addition, the alleged injury as to Srabyan involving some vague economic harm to parents who must stay home to supervise their children's remote learning, is not particularized as to the Plaintiffs, and they lack standing to bring a claim based on it. D. Plaintiffs Fail to State a Claim Even if the Plaintiffs alleged facts sufficient to demonstrate Article III standing, Judge Garaufis holds that their complaint would still fail. He disposes of the three remaining claims pursuant to the Defendants' motions to dismiss for a failure to state a claim under Rule 12(b)(6). First, the Commerce Clause claim fails because the Plaintiffs do not come close to adequately pleading that the Executive Orders "interfered with the natural functioning of the interstate market either through prohibition or through burdensome regulation." Second, the Contracts Clause claim fails for the simple reason that the Plaintiffs fail to "identify the precise contractual right that has been impaired." Third, and finally, the Equal Protection Clause claim fails because the Plaintiffs allege neither that they are part of an identifiable or suspect class, nor that they are treated differently than any other similarly situated New Yorkers. Accordingly, the Plaintiffs' claims, even if they satisfied Article III standing, would be dismissed under Rule 12(b)(6) for failure to state a claim. III. Conclusion For the foregoing reasons, Judge Garaufis granted the Defendants' motions to dismiss, and dismissed the Plaintiffs' Amended Complaint with prejudice. The Clerk of Court is respectfully directed to close the case. A full-text copy of the Court's March 23, 2022 Memorandum & Order is available at https://tinyurl.com/2p8h8ebw from Leagle.com. OGAWA USA: Guerrero Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Ogawa USA Inc. The case is styled as Edelmira Guerrero, individually and on behalf of all others similarly situated v. Ogawa USA Inc., Case No. 1:22-cv-02583 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ogawa World USA's -- https://www.ogawaworldusa.com/ -- ultimate goal is to promote health and wellness through advanced products that are easy to use and reliable.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com ONE MEDICAL GROUP: Etri Suit Removed to S.D. Florida ---------------------------------------------------- The case styled as Robert Etri, individually and on behalf of all others similarly situated v. One Medical Group, Inc., Case No. 22-002178-CA-01, was removed from the 11th Judicial Circuit Court in Miami Dade, Florida, to the U.S. District Court for the Southern District of Florida on March 18, 2022. The District Court Clerk assigned Case No. 1:22-cv-20831-JLK to the proceeding. The nature of suit is stated as Consumer Credit. One Medical -- https://www.onemedical.com/ -- is committed to providing the best primary care through exceptional quality, a world-class experience, and second-to-none technology.[BN] The Plaintiff is represented by: Andrew John Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE P.A. 14 N.E. 1st Ave., Ste. 1205 Miami, FL 33132 Phone: (305) 479-2299 Fax: (786) 623-0915 Email: ashamis@sflinjuryattorneys.com gberg@shamisgentile.com - and - Christopher Chagas Gold, Esq. 1547 Brooksbend Drive Wesley Chapel, FL 33432 Phone: (561) 789-4413 Email: chris@edelsberglaw.com Scott Adam Edelsberg, Esq. EDELSBERG LAW PA 20900 NE 30th Ave Aventura, FL 33180 Phone: (305) 975-3320 Email: scott@edelsberglaw.com The Defendant is represented by: Matthew Scott Sackel, Esq. SHUTTS & BOWEN LLP 525 Okeechobee Blvd., Suite 1100 West Palm Beach, FL 33401 Phone: (561) 650-8545 Fax: (561) 822-5503 Email: msackel@shutts.com - and - Leo P. Norton, Esq. Michelle C. Doolin, Esq. COOLEY LLP 4401 Eastgate Mall San Diego, CA 92121 Phone: (858) 550-6207 Fax: (858) 550-6420 Email: lnorton@cooley.com mdoolin@cooley.com - and - Eric Matthew Yesner, Esq. SHUTTS & BOWEN LLP 200 East Broward Blvd., Suite 2100 Fort Lauderdale, FL 33301 Phone: (954) 524-5505 Email: eyesner@shutts.com OPTAVIA LLC: Zeller Files Suit in S.D. California ------------------------------------------------- A class action lawsuit has been filed against Optavia, LLC, et al. The case is styled as Jamie Zeller, individually and on behalf of all others similarly situated v. Optavia, LLC, Medifast, Inc., Case No. 3:22-cv-00434-BTM-MSB (S.D. Cal., April 1, 2022). The nature of suit is stated as Contract Product Liability. Optavia -- https://www.optavia.com/ -- is a popular lifestyle program focused on weight loss and building healthy habits.[BN] The Plaintiff is represented by: Jonas Bram Jacobson, Esq. Simon Carlo Franzini, Esq. DOVEL & LUNER 201 Santa Monica Boulevard, Suite 600 Santa Monica, CA 90401 Phone: (310) 656-7066 Email: jonas@dovel.com simon@dovel.com OTG EXPERIENCE: Dawkins Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against OTG Experience, LLC. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. OTG Experience, LLC, Case No. 1:22-cv-01835-AMD-RLM (E.D.N.Y., April 1, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. OTG -- https://www.otgexp.com/ -- is an award-winning airport hospitality group with more than 250 restaurants and retail spaces in 11 airports across North America.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com P&M SOLUTIONS: Jaquez Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against P&M Solutions, LLC. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. P&M Solutions, LLC, Case No. 1:22-cv-02674 (S.D.N.Y., March 31, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. P&M Solutions LLC operates as an online pest control store.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com PENN CREDIT: Summary Judgment Bid in Schmelczer FDCPA Suit Granted ------------------------------------------------------------------ In the case, NAFTALI SCHMELCZER, individually and on behalf of all others similarly situated, Plaintiff v. PENN CREDIT CORPORATION, Defendant, Case No. 20-CV-2380 (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 for Summary Judgment, and denied the Plaintiff Cross-Motion for Summary Judgment. I. Background Plaintiff Schmelczer brings the putative class action against Penn Credit, alleging that the Defendant engaged in unlawful credit and collection practices in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Sections 1692, et seq. The Plaintiff is "a citizen of the State of New York residing in Spring Valley, New York," and a "consumer" as defined by 15 U.S.C. Section 1692(a)(3). The Defendant is a "debt collector" as defined by 15 U.S.C. Section 1692a(6). As relevant to the instant dispute, the Defendant contracts with RevSpring -- a company that provides document creation and delivery services for accounts receivable management companies, healthcare organizations, banking institutions, municipal and county governments, and telecommunication companies -- to assist in its collection activities. On June 18, 2019, Suez New York (a utility company) placed the Plaintiff's account, which at the time held a negative balance of $1,448.28, in collections with the Defendant. On June 19, 2019, the Defendant transmitted an electronic request to RevSpring to prepare and send a collection letter to the Plaintiff. The following day, RevSpring sent the Plaintiff a letter, dated June 19, 2019, that sought to collect on the Plaintiff's unpaid balance with Suez New York on behalf of the Defendant. The Payment Letter also notes that the Plaintiff owed $1,448.28 for a "delinquent utility bill" with a "service date" of May 17, 2019, and identifies "SUEZ New York" as the creditor. It also directs the recipient to the "reverse side for important information concerning your rights." The Plaintiff claims that the Payment Letter confused him when he received it for several reasons. First, the Plaintiff was confused because he did not believe he owed Suez New York $1,448.28. Second, he was confused because he did not understand how to dispute the debt; while the Payment Letter explains that written disputes should be mailed to the Defendant's "office," the Plaintiff was confused as to whether the Oaks Address or the Harrisburg Address was the Defendant's office address. The Plaintiff never mailed any written correspondence or payments to either the Harrisburg Address or the Oaks Address; instead, he gave the Payment Letter to his attorney. The Plaintiff filed his Complaint on March 18, 2020. On June 2, 2020, the Defendant filed a pre-motion letter in anticipation of filing a motion to dismiss. After receiving the Plaintiff's response, the Court held a pre-motion conference on July 16, 2020 and adopted a briefing schedule. On July 31, 2020, the Defendant filed its Motion To Dismiss. On Aug. 21, 2020, the Plaintiff filed his Opposition, and on Aug. 28, 2020, the Defendant filed its Reply. On Feb. 1, 2020, the Court issued an Opinion & Order denying the Defendant's Motion To Dismiss. It relied heavily on its then-recent Opinion & Order on the motion to dismiss filed in Adler v. Penn Credit Corporation, No. 19-CV-7084 (S.D.N.Y.), a nearly identical action brought against the same defendant and involving the same counsel for both parties, and ruled that "given the appearance of the Coupon and the lack of clear instructions in the Payment Letter, the Plaintiff has stated a plausible claim under the FDCPA and that the Court could not dismiss the Complaint at this early stage." On Feb. 12, 2021, the Defendant filed its Answer, and on March 4, 2021, the Defendant filed a letter proposing a briefing schedule for the Parties' anticipated cross-motions for summary judgment, which the Plaintiff did not dispute. The Court entered the Parties' proposed briefing schedule, and on April 9, 2021, the Parties filed their cross-motions, Rule 56.1 submissions, and accompanying papers. On May 18, 2021, the Parties exchanged Opposition papers. II. Analysis The Plaintiff brings two causes of action under the FDCPA based on the Defendant's conduct as laid out. The Defendant argues that it is entitled to summary judgment because there is no genuine dispute that: (1) the Plaintiff lacks Article III standing to assert a claim under the FDCPA because Plaintiff fails to demonstrate actual injury; and (2) the Payment Letter is not deceptive as a matter of law, including because any potential deceptiveness is immaterial. The Plaintiff, in opposing the Defendant's Motion, argues that he does have Article III standing, and that there is at least a genuine dispute as to whether the Payment Letter's deceptiveness is material. Alternatively, the Plaintiff argues that he is entitled to summary judgment because the law of the case doctrine mandates that the Court, having determined at the motion to dismiss stage that the Plaintiff plausibly alleged a violation of the FDCPA via the Payment Letter's alleged deceptiveness, maintain its position and grant judgment to the Plaintiff. The Defendant disputes the applicability of the law of the case doctrine in the case. Judge Karas opines that the Plaintiff has wholly failed to demonstrate that he suffered any concrete harm. He says the Plaintiff has not alleged, let alone demonstrated, that he suffered any monetary or reputational harm; instead, the Plaintiff claims only that the Payment Letter caused the Plaintiff to become "confused" and "concerned." These claims are insufficient to establish concrete injury sufficient to confer Article III standing. Accordingly, Judge Karas finds that there is no genuine dispute of material fact that the Plaintiff does not have Article III standing to pursue his FDCPA claims and thus, the Court lacks subject matter jurisdiction over the Action. Therefore, Judge Karas need not address the substantive merits -- or lack thereof -- of the Plaintiff's claims, as it must grant the Defendant's Motion and deny the Plaintiff's Motion. III. Conclusion For the foregoing reasons, Judge Karas granted the Defendant's Motion for Summary Judgment and denied the Plaintiff's Motion for Summary Judgment. The Clerk of Court is respectfully directed to terminate the pending Motions, enter judgment for the Defendant, and close the case. A full-text copy of the Court's March 23, 2022 Opinion & Order is available at https://tinyurl.com/3h92cpnc from Leagle.com. Craig B. Standers, Esq. -- csanders@barshaysanders.com -- Jonathan M. Cader, Esq. -- jcader@sbglawny.com -- Kara McCabe, Esq. -- KMcCabe@sanderslaw.group -- Barshay Sanders, PLLC, in Garden City, New York, Counsel for the Plaintiff. Richard J. Perr, Esq. -- rperr@kdvlaw.com -- Kaufman Dolowich & Voluck, LLP, in Philadelphia, Pennsylvania, Counsel for the Defendant. PENTEGRA SERVICES: Bid to Dismiss Khan ERISA Suit Granted in Part ----------------------------------------------------------------- In the case, IMRAN KHAN, et al., Plaintiffs v. BOARD OF DIRECTORS OF PENTEGRA DEFINED CONTRIBUTION PLAN, et al., Defendants, Case No. 20-CV-07561 (PMH) (S.D.N.Y.), Judge Philip M. Halpern of the U.S. District Court for the Southern District of New York granted in part the Defendants' motion to dismiss the Amended Consolidated Class Action Complaint. I. Background Plaintiffs Imran Khan, Joan Bullock, and Pamela Joy Wood bring the putative class action against the Board of Directors of Pentegra Defined Contribution Plan, Pentegra Services, Inc. ("PSI"), John E. Pinto, Sandra L. McGoldrick, Lisa A. Schlehuber, Michael N. Lussier, William E. Hawkins, Jr., Brad Elliott, George W. Hermann, and John Does 1-20, for breaches of fiduciary duties and prohibited transactions under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Sections 1001, et seq. The Plaintiffs are participants in the Pentegra Defined Contribution Plan, which is a "defined contribution" or "individual account" employee benefit plan. The Plan is a multiple employer plan ("MEP"), which has been adopted by approximately 250 banks for their employees. The Plan is among the largest 0.07% of all defined contribution plans in the United States, with over 27,000 participants and $2.1 billion in assets. The Defendants are alleged to be the Plan's fiduciaries. The Plaintiffs allege that the Defendants, in retaining PSI, failed to ensure that PSI's compensation was reasonable for its services to the Plan and relative to market rates for what they contend are the same services. They allege that Defendants retained PSI as the Plan's recordkeeper without competition, or even arm's-length negotiation, and caused it to receive over $50 million in Plan assets since 2014, including uncapped, asset-based fees ranging from 28 basis points to 60 basis points, in addition to annual fees of $75 per participant and $1,950 per employer. Based on these facts, the Plaintiffs press four claims for relief contending that Defendants breached their fiduciary duties under 29 U.S.C. Section 1104(a)(1) with respect to the Plan's recordkeeping, administrative, and investment management fees, engaged in prohibited transactions in violation of 29 U.S.C. Section 1106, and that the Board of Directors and its individual members breached the duty to monitor fiduciaries. The Plaintiffs commenced the action on Sept. 15, 2020. On Dec. 11, 2020, the Court consolidated into this action a case filed on Oct. 13, 2020 by Richard Greenberg, Gregory S. Digsby, Lindsey Clark, and Chrystal Lewis. The Plaintiffs then, on Dec. 28, 2020, filed a consolidated class action complaint. The Court subsequently appointed Schlichter Bogard & Denton, LLP as the interim class counsel and granted the Plaintiffs leave to amend the consolidated class action complaint. The amended pleading was filed on March 5, 2021. The Defendants moved to dismiss the Amended Consolidated Class Action Complaint under Federal Rule of Civil Procedure 12(b)(6), supported by the Declaration of Robert D. Alin with exhibits and a memorandum of law. The Plaintiffs filed opposition, and the motion was fully briefed on June 4, 2021, with the filing of the Defendants' reply memorandum of law. II. Analysis A. Documents Considered on a Rule 12(b)(6) Motion The Defendants submitted to the Court the following documents annexed to the Alin Declaration to support their motion to dismiss: (1) the Plan's Form 5500 Annual Report for the plan year beginning January 1, 2019; (2) the Plan Document, effective as of Jan. 1, 2018; (3) Federal Home Loan Bank of New York Plan Fee Disclosure Statement for PSI services; (4) Services Agreement between the Plan and PSI, effective as of Dec. 1, 2018; (5) By-Laws of the Board of Directors of the Plan, as amended as of Jan. 1, 2010; (6) By-Laws of the Board of Directors of the Plan, as amended as of Jan. 1, 2018; (7) Services Agreement between the Plan and PSI, effective as of 2013; and (8) Plan Form 5500 Annual Report for the plan year beginning Jan. 1, 2018. The Plaintiffs opposed that filing. Judge Halpern opines that holds that each of these documents contains substantive legal arguments that belong in the parties' memoranda of law under Local Civil Rule 7.1(a)(2). Accordingly, he disregards the Defendants' supplemental brief in support of their request for judicial notice, the Plaintiffs' 11-page opposition thereto, and the reply in further support of the application. Judge Halpern notes, in any event, that the Court "is entitled to consider facts alleged in the complaint and documents attached to it or incorporated in it by reference, documents 'integral' to the complaint and relied upon in it, and facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence." Even if a document is not incorporated into the complaint by reference, the Court may consider it "where the complaint 'relies heavily upon its terms and effect,' thereby rendering the document 'integral' to the complaint." Moreover, "courts regularly take notice of publicly available documents including regulatory filings." Accordingly, Judge Halpern considers the Defendants' exhibits themselves only to the extent necessary and only as permitted by the applicable case law to resolve the instant motion. B. Defendants' Motion to Dismiss 1. Defendant PSI The Defendants contend that PSI was not a fiduciary with respect to the Plan and therefore, the claims alleged against it must fail. Judge Halpern opines that the Plaintiffs have alleged that PSI was a fiduciary, that it had a prior relationship to the Plan in that Pinto was both a member of the Board of Directors and President of PSI, and that there was a lack of market competition with respect to PSI's contract in that there was no competitive bidding, there were "automatic" contract renewals, and because PSI's compensation relative to the market was excessive. He accepts the Plaintiff's well-pled allegations as true and declines the invitation to engage in a fact-finding missive at this juncture. The parties are free to continue to probe this issue in discovery. 2. First and Third Claims for Relief: The Breach of Fiduciary Duties Claims The Amended Consolidated Class Action Complaint presses two claims of breach of fiduciary duty under 29 U.S.C. Section 1104(a)(1): The first claim for relief, which relates to excessive recordkeeping and administrative fees, and the third claim for relief, which relates to unreasonable investment management fees. a. Duty of Prudence Judge Halpern cannot conclude that the pleading contains insufficient benchmarks for a meaningful comparison of fees at this stage of the proceedings, where such a conclusion evidently requires the Court to resolve fact disputes. The allegations are each, and taken together, a plausible breach of the duty of prudence. Simply put, the Plaintiffs' allegations are sufficient to withstand the motion to dismiss the breach of duty of prudence claims set forth in the first claim for relief. Moreover, the Plaintiffs have sufficiently alleged that it can be reasonably inferred that Defendants breached their duty of prudence by providing the higher-cost options. The motion to dismiss this claim is, therefore, denied. b. Duty of Loyalty Judge Halpern granted the Defendants' motion to the extent the first and third claims for relief allege a breach of the duty of loyalty. He opines that because the Plaintiffs do not allege that Pinto's relationship with PSI "caused him to take or fail to take any actions detrimental to the Plan while he was wearing his 'fiduciary hat,'" they have not sufficiently alleged a breach of the duty of loyalty. The Plaintiffs also fail to allege sufficient facts "that would support an inference of disloyalty, as opposed to imprudence." Similarly, the retread allegations only further complicate this pleading's already-muddied appearance. C. Second Claim for Relief: The Prohibited Transactions Claim The Plaintiffs second claim for relief alleges that PSI's provision of administrative services to the Plan violates ERISA's prohibited transaction rules. ERISA prohibits: (1) transactions between a plan and a "party in interest," 29 U.S.C. Section 1106(a)(1), and (2) transactions between a plan and a fiduciary. Judge Halpern opines that the Plaintiffs have alleged sufficiently that PSI is a party in interest. And while "reasonable" payments for necessary services qualify for an exemption as the Defendants argue, a plan is "entitled to recover" any excess above a reasonable fee. The Plaintiffs have alleged that PSI received excessive asset-based payments that exceeded reasonable compensation for its services rendered to the Plan. Moreover, Judge Halpern declines to hold as a matter of law at this stage in the proceedings that PSI was not a fiduciary. He says, the Defendants' remaining argument that PSI's interests were not adverse to the Plan because PSI was "merely providing service to the Plan for a fee," ignores the Plaintiffs' allegations, including, inter alia, that PSI's fees were significantly higher than prevailing market rates. Accepting the Plaintiffs' allegations as true and drawing inferences in a light most favorable to them, as the Court must at this stage, Judge Halpern concludes that the Defendants have failed to show that the second claim for relief should be dismissed. D. Fourth Claim for Relief: The Breach of Duty to Monitor Claim The Plaintiffs' fourth claim for relief for breach of the duty to monitor is alleged against the Board of Directors and its individual members. The Defendants principally contend that the duty to monitor claim must be dismissed because the Plaintiffs have failed to adequately allege any underlying fiduciary breach. They also argue that the Plaintiffs have not sufficiently alleged what the Plan's monitoring processes were or what systems should have been in place to show how the monitoring process was deficient. Judge Halpern holds that he has already determined that the Plaintiffs have plausibly alleged a breach of the fiduciary duty of prudence. In addition, because the appropriate ERISA mandated monitoring procedures vary according to the nature of the Plan at issue and other facts and circumstances, an analysis of the precise contours of the Defendants' duty to monitor at this stage is premature. Accordingly, Judge Halpern denied the Defendants' motion to dismiss the fourth claim for relief. III. Conclusion For the reasons he outlined, Judge Halpern granted in part the Defendants' motion to dismiss. The Plaintiffs' first and third claims only to the extent they allege breaches of the duty of loyalty are dismissed. The parties will proceed with discovery on the Plaintiffs' remaining claims -- the first and third claims alleging breaches of the duty of prudence, the second claim for prohibited transactions, and the fourth claim for breach of the duty to monitor -- in accordance with the established schedule, as amended. The Clerk of the Court is respectfully directed to terminate the motion sequences pending at Doc. 93 and Doc. 105. A full-text copy of the Court's March 23, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/5t4zpwny from Leagle.com. PEPSICO INC: Fails to Pay Workers' OT After Onset of Kronos Hack ---------------------------------------------------------------- MOISES MADRIZ and RODNEY ULLOA, individually and on behalf of all others similarly situated v. PEPSICO, INC.; NAKED JUICE CO.; NAKED JUICE CO. OF GLENDORA, INC.; TROPICANA PRODUCTS, INC.; TROPICANA SERVICES, INC.; and DOES No. 1 through 50, inclusive, Case No. 5:22-cv-00549 (C.D. Cal., March 30, 2022) fails to pay overtime compensation under the Fair Labor Standards Act. According to the complaint, the Defendants' timekeeping and payroll systems were affected by the hack of Kronos in 2021, like many other companies across the United States. That hack led to problems in timekeeping and payroll throughout Defendants' organizations. As a result, the Defendants' workers who were not exempt from the overtime requirements under federal and state law, were not paid for all overtime hours worked or were not paid their proper overtime premium after the onset of the Kronos hack. Moises Madriz and Rodney Ulloa are each such workers for Defendants. The Defendants could have easily implemented a system to accurately record time and properly pay hourly and non-exempt employees until issues related to the hack were resolved. But they didn't. Instead, Defendants did not pay their non-exempt hourly and salaried employees their full overtime premium for all overtime hours worked, as required by federal and California law. The Defendants pushed the cost of the Kronos hack onto the most economically vulnerable people in their workforce, the lawsuit says. The Defendants' alleged failure to pay proper wages for all hours worked, including overtime hours, violates the Fair Labor Standards Act (FLSA), and applicable state law. Madriz and Ulloa bring this lawsuit to recover these unpaid wages and other damages owed by Defendants to him and Defendants' similar workers, who were the ultimate victims of not just the Kronos hack, but Defendants' decision to make their own workforce bear the economic burden for the hack. The Defendants are a food, snack, and beverage corporation. Many of Defendants' employees are non-exempt hourly and salaried workers. Since at least 2021, the Defendants have used timekeeping software and hardware operated and maintained by Kronos.[BN] The Plaintiffs are represented by: Matthew S. Parmet, Esq. PARMET PC 340 S. Lemon Ave., No. 1228 Walnut, CA 91789 Telephone: (310) 928 1277 E-mail: matt@parmet.law PORTFOLIO RECOVERY: Martinez FDCPA Suit Removed to D. New Jersey ---------------------------------------------------------------- The case styled as Damaris A. Martinez, on behalf of herself and those similarly situated v. Portfolio Recovery Associates, LLC, John Does 1 to 10, Case No. NJ, ESX-L-001086-22, was removed from the Superior Court of Essex County, Law Div., to the U.S. District Court for the District of New Jersey on March 31, 2022. The District Court Clerk assigned Case No. 2:22-cv-01840 to the proceeding. The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Portfolio Recovery Associates LLC -- https://www.portfoliorecovery.com/ -- a subsidiary of PRA Group, Inc., specializes in working with people in debt repayment.[BN] The Plaintiff appears pro se. The Defendants are represented by: Philip Andrew Goldstein, Esq. MCGUIRE WOODS LLP 1251 Avenue of The Americas, 20th Floor New York, NY 10020 Phone: (212) 548-2167 Email: pagoldstein@mcguirewoods.com POWER BALANCE: Mejia Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Power Balance Technologies Inc. The case is styled as Jose Mejia, individually, and on behalf of all others similarly situated v. Power Balance Technologies Inc., Case No. 1:22-cv-02622 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Power Balance -- https://www.powerbalance.com/ -- is a leader in performance technology, selling holographic wristbands trusted by athletes worldwide.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com PREMIER LACROSSE: Jaquez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Premier Lacrosse League, Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Premier Lacrosse League, Inc., Case No 1:22-cv-02664 (S.D.N.Y., March 31, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Premier Lacrosse League -- https://premierlacrosseleague.com/ -- is an American professional field lacrosse league.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com PRILLA INC: Guerrero Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Prilla, Inc. The case is styled as Edelmira Guerrero, individually and on behalf of all others similarly situated v. Prilla, Inc., Case No. 1:22-cv-02582 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Prilla, Inc. -- https://prilla.com/us/ -- offers a vast selection of nicotine pouch brands and flavors delivered directly to customers doorstep from their US warehouse.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com PROGRESSIVE CORP: Faces Suit Over Undervalued "Total Loss" Vehicles ------------------------------------------------------------------- fenderbender.com reports that Progressive Insurance faces a potential class-action lawsuit in Pennsylvania for using unexplained adjustments to lower its actual cash value (ACV) calculations in total loss cases. According to a story by Insurance World, the lawsuit claims Progressive "systematically adjusts the scale" when calculating ACVs by applying "projected sales adjustments" to vehicle prices from comparable occasion. The plaintiffs claim that the adjustments are "misleading and unexplained" and are "not based on facts, as they are contrary to the pricing and inventory management practices of the used car market". The lawsuit was filed March 21, three days after a similar lawsuit was filed against State Farm in an Illinois court. The Progressive lawsuit seeks payments estimated at more than $5 million for Pennsylvania customers, while State Farm plaintiffs seek unspecified benefits for a proposed national class. According to the plaintiff in the lawsuit, Progressive's practice violates Pennsylvania consumer protection laws, its own political language and professional standards. "Appraisers use advertised prices and only make adjustments based on observed and verifiable data; valuation standards do not permit arbitrary adjustments to the advertised price based on undocumented and unverifiable projections," the suit states. [GN] PUBLIC BENEFIT: Jaquez Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Public Benefit Corp. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. Public Benefit Corp., Case No. 1:22-cv-02676 (S.D.N.Y., March 31, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Benefit corporations -- https://benefitcorp.net/ -- or public-benefit corporation are for-profit companies that want to consider additional stakeholders in addition to making a profit for their shareholders.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com PURE FISHING: District Court Grants Bid to Dismiss Chung Class Suit ------------------------------------------------------------------- In the case, DAVID CHUNG, Plaintiff v. PURE FISHING, INC., Defendant, Case No. 20-CV-3983 (RPK) (CLP) (E.D.N.Y.), Judge Rachel P. Kovner of the U.S. District Court for the Eastern District of New York granted Pure Fishing's motion to dismiss the complaint. I. Background Plaintiff Chung, a recreational fisherman, brings the lawsuit against the Defendant, the maker of the "Berkley Gulp!" line of bait. Mr. Chung started using "Berkley Gulp!" around 2015. Soon afterward, he alleges, he learned that the containers in which the bait is packaged are prone to leaking. Nevertheless, Mr. Chung found the bait "highly effective." He kept buying the product until August 2020, when he filed the lawsuit. Mr. Chung filed the putative class action lawsuit on behalf of "all persons who purchased one or more Gulp! replicator products in the United States and its territories or possessions." His claims center around the allegedly leaky containers. He alleges that Pure Fishing breached express and implied warranties and violated the MMWA through its sales of the product.He also alleges that Pure Fishing committed fraud, made negligent misrepresentations, and violated the consumer-protection provisions in Sections 349 and 350 of the New York GBL by failing to disclose the leakage problem.Finally, he alleges that the company received unjust enrichment from sales of the bait. Mr. Chung claims that as a result of the product's propensity for leakage, which Pure Fishing did not disclose, the company breached express and implied warranties, violated the Magnuson-Moss Warranty Act ("MMWA"), committed fraud, made negligent misrepresentations, violated New York General Business Law ("GBL") Sections 349 and 350 and similar consumer-protection laws of other States, and received unjust enrichment. Pure Fishing has moved to dismiss the complaint. II. Discussion A. Mr. Chung Has Failed to State a Claim for Violations of New York's General Business Law To successfully assert a claim under either section, a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice." A claim under these sections accrues when a plaintiff is injured. The statute of limitations ends three years from the date on which the claim accrues. Accordingly, Mr. Chung may only bring claims under these sections for violations in the three years between August 2017 and August 2020, when the complaint was filed. Judge Kovner finds that Mr. Chung (i) has failed to adequately plead a violation, within the statute of limitations, of Sections 349 and 350 of New York's GBL; (ii) errs in contending that the continuing violations doctrine permits him to bring claims based on purchases going as far back as 2015, when he first bought the product; (ii) has failed to adequately plead that Pure Fishing violated Sections 349 and 350 within the statute of limitations, because he has not plausibly alleged that Pure Fishing engaged in deceptive conduct that caused him injury in the past three years; (iv) has failed to plead a violation of Sections 349 and 350 within the statute of limitations because he has not adequately pleaded any theory of injury. Mr. Chung acknowledges that he learned that the containers in which "Berkley Gulp!" is packaged were prone to leakage soon after he first bought the bait, but that he elected to keep buying the product; (v) has not plausibly alleged that he was tricked into paying a premium price, and he has not plausibly alleged any other injury; and (vi) cannot allege that he was deceived into purchasing the product at any time within the limitations period. B. Mr. Chung Fails to State a Claim for Breach of Warranty or Violation of the MMWA Judge Kovner holds that Mr. Chung falls short on his warranty claims. To be entitled to recover for breach of an express or implied warranty under New York law, "the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy." This requirement means that plaintiffs "must allege some form of timely, pre-litigation notice." Judge Kovner finds that Mr. Chung has failed to adequately plead breach of an express or implied warranty under New York law. Since Mr. Chung has failed to plead breach of a warranty under New York law, he has failed to state a claim under the MMWA. Amendment of Mr. Chung's warranty claims would be futile because Mr. Chung has conceded that he provided no pre-suit notice to Pure Fishing. Accordingly, Mr. Chung's breach of warranty and MMWA claims are dismissed with prejudice. C. Mr. Chung Fails to State a Claim for Fraud Mr. Chung has not adequately pleaded fraud, Judge Kovner states. To plead fraud under New York law, a plaintiff must allege "(1) a material misrepresentation or omission of fact (2) made by a defendant with knowledge of its falsity (3) and intent to defraud; (4) reasonable reliance on the part of the plaintiff; and (5) resulting damage to the plaintiff. Judge Kovner holds that Mr. Chung has failed to adequately plead fraud. First, his vague descriptions of the asserted omission do not satisfy Rule 9(b). Second, Mr. Chung fails to demonstrate a duty to disclose because he has failed to adequately allege that he could not have learned about the leaky containers through reasonable inquiry. Mr. Chung therefore offers "no allegations that show that Pure Fishing was in possession of any information relevant to the defect that was not also possessed by outside third parties." D. Mr. Chung's Failure to Allege a Special Relationship Requires the Dismissal of his Negligent-Misrepresentation Claim Mr. Chung has failed to state a claim for negligent misrepresentation, Judge Kovner finds. To state a claim for negligent misrepresentation under New York law, a plaintiff must allege "(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect or withheld; and (3) reasonable reliance on the information or omission." Judge Kovner finds that (i) Mr. Chung has not set out facts suggesting that it is the rare case in which a buyer and product manufacturer have a relationship so close as to approach privity of contract; and (ii) the slogan "catch more fish" is not a scientific or technical claim of this sort and while the label's claim that the product increases scent dispersion by "up to 400x" might qualify as a scientific or technical claim, Mr. Chung has not suggested that this claim is inaccurate. In sum, Mr. Chung has failed to plead a special relationship that would sustain a negligent-misrepresentation claim. E. Mr. Chung's Unjust-Enrichment Claim Is Duplicative Judge Kovner holds that Mr. Chung has also failed to adequately plead unjust enrichment. An "unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim." "Two claims are duplicative of one another if they 'arise from the same facts and do not allege distinct damages.'" Mr. Chung does not assert that his unjust-enrichment claim arises from different facts than those at issue in his other claims, or that he is seeking distinct damages. Instead, he urges that Federal Rule of Civil Procedure 8 allows him to plead unjust enrichment and other claims in the alternative. Yet "even pleaded in the alternative, claims for unjust enrichment will not survive a motion to dismiss where plaintiffs fail to explain how their unjust-enrichment claim is not merely duplicative of their other causes of action." Since Mr. Chung has failed to do so, his unjust-enrichment claim is dismissed. F. Mr. Chung Lacks Standing to Bring Claims Under Other States' Consumer Protection Laws Insofar as he seeks to do so, Mr. Chung may not bring claims under other states' consumer protection laws, Judge Kovner rules. He finds that Mr. Chung is a citizen of New York, and does not allege that he bought or used the product outside New York. He nevertheless alleges that Pure Fishing's conduct also violates the consumer protection statutes of other states. And he seeks to raise those allegations "on behalf of the class" that he wishes to represent. "Where plaintiffs themselves do not state a claim under their respective state's consumer statutes, however, they do not have standing to bring claims under other state statutes—even where they are named plaintiffs in a purported class action." Given that Mr. Chung's claim under New York's consumer protection statute fails, Mr. Chung lacks standing to bring claims under other states' consumer protection laws. III. Conclusion Judge Kovner granted Pure Fishing's motion to dismiss. Mr. Chung may file a motion seeking leave to file an amended complaint within 30 days. Any such motion should include the proposed amended complaint as an exhibit and explain why leave to amend should be granted. If Mr. Chung does not seek leave to amend within thirty days, judgment will be entered. A full-text copy of the Court's March 23, 2022 Memorandum & Order is available at https://tinyurl.com/42zzchxd from Leagle.com. PURPOSE POINT: Faces Labor Class Suit Over Human Trafficking ------------------------------------------------------------ Luis Gomez-Echeverria and Hervil Gomez-Echeverria, on behalf of themselves and others similarly situated v. Purpose Point Harvesting LLC, Emilto Moreno Gomez, and Lucille Jean Moreno, Case No. 1:22-cv-00314 (W.D. Mich., March 31, 2022) is a class action complaint for human trafficking and labor exploitation brought by low‐income migrant farmworkers who were brought to Michigan by Defendants to work on farms in Newaygo County and the surrounding areas. According to the complaint, the Defendants acted together to charge plaintiffs illegal recruitment fees, confiscated travel documents when Plaintiffs arrived in the United States, and paid Plaintiffs less than the contract wage and, at times, the minimum wage. The Plaintiffs bring this action against Defendants individually and jointly for violations of the Trafficking Victims Protection Reauthorization Act (TVPRA), the civil RICO statute, the Fair Labor Standards Act (FLSA), and the Michigan Workforce Opportunity Wage Act, and for compensation under the Michigan Human Trafficking Victims Compensation Act The Plaintiffs are migrant agricultural workers who were employed by Purpose Point to perform agricultural labor in Michigan through the H‐2a program. The Plaintiffs worked for Defendants in Newaygo County, Michigan, at a variety of farms. Defendant Purpose Point is a company owned and operated by Defendants Emilto and Lucille. Defendant Emilto recruits workers and oversees day to day operations of employees.[BN] The Plaintiffs are represented by: Teresa Hendricks, Esq. Benjamin O'Hearn, Esq. Molly Spaak, Esq. MIGRANT LEGAL AID 1104 Fuller Ave. NE Grand Rapids, MI 49503‐1371 Telephone: (616) 454‐5055 E-mail: thendricks@migrantlegalaid.com bohearn@migrantlegalaid.com mspaak@migrantlegalaid.com REALOGY BROKERAGE: Court Certifies 3 Classes in Bumpus TCPA Suit ---------------------------------------------------------------- In the case, SARAH BUMPUS, et al., individually, and on behalf of all similarly situated persons, Plaintiffs v. REALOGY BROKERAGE GROUP LLC (F/K/A NRT LLC), et al., Defendants, Case No. 3:19-cv-03309-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California granted in part the Plaintiffs' motion for class certification. I. Background Named Plaintiffs Sarah Bumpus, Micheline Peker, and Cheryl Rowan seek certification of multiple classes for Telephone Consumer Protection Act (TCPA) claims against Defendants Realogy and Mojo Dialing Solutions. Realogy operates large real estate conglomerates, which include brands like Coldwell Banker and Sotheby International Realty. It contracts with thousands of real estate agents across the country to identify and reach out to leads for residential sales. Mojo is an autodialing and lead generation platform used by real estate agents, including Realogy's agents. The Named Plaintiffs are individual home owners in California, Minnesota, and Florida. The Plaintiffs allege that they received unwanted calls from Realogy Agents affiliated with Coldwell Banker asking them to list their homes for sale. Plaintiffs Rowan and Peker also received prerecorded messages from Realogy agents. The Plaintiffs allege that the unwanted calls violated the TCPA. The Plaintiffs ask to certify four classes under Federal Rule of Civil Procedure 23, subsections (b)(2) and (b)(3): (1) A National Do Not Call Registry Nationwide (NDNC) class under Rule 23(b)(2) and (b)(3) consisting of all persons in the United States who received two or more calls made by a Coldwell Banker-affiliated Agent using a Mojo, PhoneBurner, and/or Storm dialer in any 12 month period on a residential landline or cell phone number that appeared on the National Do Not Call Registry for at least 31 days for the time period beginning June 11, 2015, to present; (2) A National Internal Do Not Call (Internal DNC) class under Rule 23(b)(2) consisting of all persons in the United States who received, in any 12-month period, two or more calls promoting Coldwell Banker's services and made by a Coldwell Banker-affiliated Agent to their residential landline or cell phone number, for the time period beginning June 11, 2015, to present; (3) A National Artificial or Prerecorded Message (Prerecorded Message) class under Rule 23(b)(2) and (b)(3) consisting of all persons in the United States who received a call on their residential telephone line or cell phone number with an artificial or prerecorded message, as indicated by the following call disposition codes: (1) 'Drop Message' (if using the Mojo dialer); (2) 'ATTENDED_TRANSFER' (if using the Storm dialer; and (3) 'VOICEMAIL' (if using a PhoneBurner dialer) in the call records listed in Appendix A and made by a Coldwell Banker-affiliated Agent for the time period beginning June 11, 2015, to present; and (4) An Artificial or Prerecorded Message Mojo (Prerecorded Message Mojo) class under Rule 23(b)(2) and (b)(3) consisting of all persons in the United States who received a call on their residential telephone line or cell phone number with an artificial or prerecorded message, as indicated by the call disposition code Drop Message in the call records listed in Appendix A and made by a Coldwell Banker-affiliated Agent using a Mojo dialer for the time period beginning June 11, 2015, to present. II. Discussion The Plaintiffs must show that their proposed classes satisfy all four requirements of Rule 23(a), and at least one of the subsections of Rule 23(b). As the parties seeking certification, they bear the burden of showing that the requirements of Rule 23 are met for each of their proposed classes. First, Judge Donato hods that his analysis based on evidence in the record, entails reasonable and appropriate methods, and yields reliable results that establish numerosity. The blunderbuss of challenges that Mojo and Realogy fire at Verkhovskaya do not lead to a different conclusion. They question at length her ability to match phone numbers to names. But for present purposes, namely the determination of whether Verkhovskaya's report is adequate to demonstrate numerosity, matching names to numbers is not a material concern. What matters for numerosity is that the report readily demonstrates that the proposed classes are comprised of hundreds of thousands of individuals. To the extent the Defendants are suggesting a question of ascertainability, that factor is not a requirement of certification. Second, the Defendants have not made a persuasive challenge to typicality or adequacy. Consequently, these elements of Rule 23(a) are met. Mojo and Realogy dispute typicality and adequacy only for named Plaintiffs Sarah Bumpus and Micheline Peker. But, James Donato finds that the Plaintiffs have proffered evidence showing that Plaintiff Bumpus repeatedly told Realogy agents not to call her again when they started calling her to list her home with them. This evidence, which is largely undisputed, overcomes Realogy's objections. Mojo also does not cite to any good law holding that Peker was required to remember a call from a Realogy agent to have a TCPA claim or represent a class. Third, Judge Donato finds it appropriate to assess commonality and predominance in tandem, with a careful eye toward ensuring that the specific requirements of each are fully satisfied. He finds that (i) the evidence indicates that Plaintiffs' claims can be proved through common evidence, and that common questions predominate; (ii) the class certification for the Prerecorded Message Mojo Subclass is denied because the Plaintiffs have not adduced any evidence that shows Mojo initiated the calls on a classwide basis; (iii) the Plaintiffs have adequately provided a damages model for their proposed classes; and (iv) there can be no doubt that a class is the superior method of handling these TCPA claims. Fourth, a (b)(2) class is certified only for the Internal DNC class. The Plaintiffs seek to certify the Internal DNC class solely as an injunctive relief class under Rule 23(b)(2). They also seek to certify the NDNC, Prerecorded Message, and Prerecorded Message Mojo classes under both Rule 23(b)(3) and Rule 23(b)(2). They request injunctive relief in the form of a requirement that Realogy create and maintain minimum standards for its internal do not call list. Judge Donato holds that the Plaintiffs have met their burden for proving the Rule 23(a) requirements for the NDNC, Internal DNC, and Prerecorded Message classes but not for the Prerecorded Message Mojo Class. Realogy objects that plaintiffs primarily seek monetary relief on their claims, making certification of a (b)(2) class inappropriate. That is certainly not true for the Internal DNC class, for which the Plaintiffs seek only injunctive relief and no monetary relief. For the other classes, it is true that certification under Rule 23(b)(2) is not appropriate for claims where monetary relief predominates. That is not to say that injunctive relief is ruled out for the (b)(3) classes. Rather, such relief may be awarded in addition to a monetary recovery. Consequently, a (b)(2) class is certified only for the Internal DNC class. III. Conclusion Judge Donato certified the NDNC class and Prerecorded Message class under Rule 23(b)(3). He certified the Internal DNC class under Rule 23(b)(2). Certification is denied for a Prerecorded Message Mojo class. Plaintiff Sarah Bumpus is appointed the class representative of the NDNC class and Internal DNC class. Plaintiffs Cheryl Rowan and Micheline Pecker are appointed the class representatives of the Prerecorded Message class. Tycko & Zavareei LLP, Reese LLP, and Kaufman P.A. are appointed as the class counsel for all three classes. The Plaintiffs are directed to file by April 22, 2022, a proposed plan for dissemination of notice to the classes. They will meet and confer with the Defendants at least 10 days in advance of submitting the plan so that the proposal can be submitted on a joint basis, to the fullest extent possible. A status conference is set for May 26, 2022, at 10:00 a.m. The parties are directed to file a joint statement by May 19, 2022, with proposed dates for the final pretrial conference and trial. The parties are further referred to Magistrate Judge Hixon for a settlement conference to be held as his schedule permits. A full-text copy of the Court's March 23, 2022 Order is available at https://tinyurl.com/4t7uf8up from Leagle.com. RECOVERY AGENTS: Faces Zahriyeh Suit Over Telephonic Sales Calls ---------------------------------------------------------------- ABDEL ZAHRIYEH, individually and on behalf of all others similarly situated v. THE RECOVERY AGENTS LLC AND JACOB BABINS, Case No. CACE-22-004718 (Fla. Cir., Broward Cty., March 30, 2022) is a class action under the Florida Telephone Solicitation Act. The Defendants allegedly engage in telephonic sales calls to consumers without having secured prior express written consent as required by the FTSA. The Defendants' 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 lawsuit says. Through this action, the Plaintiff seeks an injunction and statutory damages on behalf of himself and the Class members, as defined below, and any other available legal or equitable remedies resulting from the unlawful actions of Defendants. On March-2022, the Defendants began sending telephonic sales calls to Plaintiffs cellular telephone number. The Defendants called Plaintiff from multiple different numbers, including, but not limited to, 954-710-9346 and 561 -808-2892. The purpose of Defendant's telephonic sales call was to solicit the sale of consumer goods and/or services. The Plaintiff was in Florida when she received the above call mentioned calls, and Defendant's violative conduct occurred in substantial part in Florida.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. LAW OFFICES OF JIBRAEL S. HINDI, PLLC 110 SE 6th Street, 17th Floor Ft. Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: www.JibraelLaw.com ROCKY MOUNTAIN: Guerrero Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Rocky Mountain ATV/MC. The case is styled as Edelmira Guerrero, individually and on behalf of all others similarly situated v. Rocky Mountain ATV/MC, Case No. 1:22-cv-02579 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rocky Mountain ATV/MC -- https://www.rockymountainatvmc.com/ -- is a one-stop shop for motocross, ADV, UTV, ATV, dirt bike and street bike gear.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI & KROUB LLP 200 Vesey Street, 24th Floor New York, NY 11201 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com SAF-HOLLAND INC: Mejia Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against SAF-Holland, Inc. The case is styled as Jose Mejia, individually, and on behalf of all others similarly situated v. SAF-Holland, Inc., Case No. 1:22-cv-02621 (S.D.N.Y., March 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. SAF-HOLLAND -- https://safholland.com/us/en/ -- is one of the leading international manufacturers of chassis-related assemblies and components for trailers, trucks and buses.[BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 200 Vesey Street New York, NY 10281 Phone: (212) 595-6200 Email: ekroub@mizrahikroub.com SCOTT SHAW: Suit Filed in Cal. Super. Ct. ----------------------------------------- A class action lawsuit has been filed against Scott Shaw, et al. The case is styled as Jane Doe, Jane Doe 2, on behalf of all others similarly situated v. Scott Shaw, Trustees of the California State University, California State University-San Jose, an Unincorporated Association Form Unknown, Case No. 22CV395973 (Cal. Super. Ct., March 18, 2022). The case type is stated as "Civil Rights Unlimited." Scott Shaw is the former Director of Sports Medicine and athletic trainer at San Jose State University.[BN] The Plaintiff is represented by: Robert S. Arns, Esq. THE ARNS LAW FIRM 515 Folsom St. 3FL San Francisco, CA 94105 Phone: 415-495-7800 Fax: 415-495-7888 Email: rsa@arnslaw.com SHORE FUNDING: Floyd Sues Over Unsolicited Prerecorded Calls ------------------------------------------------------------ Louis Floyd, individually and on behalf of all others similarly situated v. SHORE FUNDING SOLUTIONS, INC., a New York corporation, Case No. 5:22-cv-01746-VKD (N.D. Cal., March 18, 2022), is brought against the Defendant to stop the Defendant's practice of placing calls using "an artificial or prerecorded voice" to the telephones of consumers nationwide without their prior express consent; and obtain redress for all persons injured by the Defendant's conduct. Plaintiff also seeks an award of statutory damages to the members of the Class, plus court costs and reasonable attorneys' fees. The Telephone Consumer Protection Act and its implementing regulations, prohibit companies, such as the Defendant, from placing calls using "an artificial or prerecorded voice" ("prerecorded calls") and/or an ATDS ("autodialed calls") to telephones without first obtaining consent. The Defendant has violated, and continues to violate, the TCPA and its regulations by placing prerecorded and/or autodialed calls to telephone subscribers who have not expressly consented to receiving such calls. In an effort to obtain leads for its services, the Defendant made (or directed to be made on its behalf) prerecorded calls to the telephones of the Plaintiff and other members of the alleged class without first obtaining express consent to do so—all in violation of the TCPA. By making the telephone calls at issue in this Complaint, the Defendant caused Plaintiff and the members of the Class actual harm and cognizable legal injury. This includes the aggravation and nuisance and invasions of privacy that result from the receipt of such calls, in addition to a loss of value realized for the monies consumers paid to their wireless carriers for the receipt of such calls. Furthermore, the calls interfered with the Plaintiff's and the other class members' use and enjoyment of their phones, including the related data, software, and hardware components. The Defendant also caused substantial injury to their phones by causing wear and tear on their property, consuming battery life, and appropriating cellular minutes and data, says the complaint. The Plaintiff Floyd is a natural person who resides in the city of Campbell in Santa Clara County, California. Shore Funding is a "one stop lending source" company that provides loans and funding solutions for businesses.[BN] The Plaintiff is represented by: Rebecca Davis, Esq. LOZEAU DRURY LLP 1939 Harrison St., Suite 150 Oakland, CA 94612 Phone: (510) 836-4200 Facsimile: (510) 836-4205 Email: rebecca@lozeaudrury.com - and - Patrick H. Peluso, Esq. WOODROW & PELUSO, LLC 3900 E. Mexico Avenue, Suite 300 Denver, CO 80210 Phone: (720) 216-0676 Facsimile: (303) 927-0809 Email: ppeluso@woodrowpeluso.com THIARA LIQUORS: Fails to Pay OT Premiums, Esquivel Class Suit Says ------------------------------------------------------------------ YULY ESQUIVEL, on behalf of herself and all other persons similarly situated v. THIARA LIQUORS INC. d/b/a BRIGHTWATERS WINE & LIQUORS, BAY SHORE WINE AND LIQUOR, SMITHTOWN SPIRITS, INC. d/b/a SMITHTOWN WINE & LIQUORS, and HARVINDER THIARA, Case No. 2:22-cv-01811 (E.D.N.Y., March 31, 2022)alleges that the Defendants failed to pay Plaintiff premium overtime wages for all hours worked in excess of 40 hours per week in violation of the Fair Labor Standards Act and the New York Labor Law. The Defendants allegedly failed to pay Plaintiff at least at the minimum wage rate for all hours worked, in violation of the NYLL; failed to provide accurate wage statements for each pay period under NYLL section 195(3); and failed to furnish a proper wage notice at his time of hire under NYLL section 195(1). The Plaintiff brings this lawsuit against the Defendants pursuant to the collective action of the FLSA, 29 U.S.C. section 216(b), on behalf of herself, individually, and on behalf of all other persons similarly-situated during the applicable FLSA limitations period who suffered damages as a result of the Defendants' willful violations of the FLSA. Specifically, for the period of October 3, 2016, through October 2017, the Plaintiff worked at Defendant Brightwaters' location; for the period of November 2017 through May 2018, the Plaintiff worked at Defendant Smithtown's location; during the period of July 2019 through July 2021, Plaintiff worked at Defendant Bay Shore's location; and finally from August 2021 through October 21, 2021, Plaintiff returned to Defendant Brightwaters' location. At all times during the Relevant Period, the Plaintiff was employed by Defendant Thiara. Throughout her employment with the Defendants, the Plaintiff and similarly situated employees regularly worked more than 40 hours in a workweek. Plaintiff was regularly scheduled to work, and did in fact work, either six or seven days per week, from 10:00 a.m. until 8:00 p.m., Monday through Thursday, and from 10:00 a.m. until 9:00 p.m., on Fridays and Saturdays, and occasionally from 10:00 a.m. until 5:00 p.m. on Sundays, each week that she worked, for a total of between 62 and 69 hours per week. The Plaintiff is a resident of the County of Suffolk, State of New York. The Corporate Defendant operates a liquor store selling wines and spirits, with its principal place of business located at 1241 Sunrise Highway, Bay Shore, New York.[BN] The Plaintiff is represented by: Matthew J. Farnworth, Esq. LAW OFFICE OF PETER A. ROMERO, P.L.L.C. 490 Wheeler Road, Suite 250 Hauppauge, NY 11788 Telephone: (631) 257-5588 E-mail: mfarnworth@romerolawny.com TWITTER INC: Ninth Circuit Affirms Dismissal of Weston Class Suit ----------------------------------------------------------------- In the case, WESTON FAMILY PARTNERSHIP LLLP; THE TWITTER INVESTOR GROUP, Plaintiffs-Appellants, and KHAN M. HASAN; KHAFRE BARCLIFT, Plaintiffs v. TWITTER, INC.; JACK DORSEY; SEGAL, Defendants-Appellees, Case No. 20-17465 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the lawsuit. I. Introduction Every day, millions of people use Twitter to share and read news, offer (often horrendous) hot takes, and fire off mean tweets. Twitter, in turn, mines the personal data of its users to better target advertisements. In August 2019, Twitter revealed that it had inadvertently shared with advertisers the personal data of users who had opted out of data-sharing, but it reassured its users that it had "fixed these issues." A few months later during its quarterly earnings announcement, Twitter disclosed that software bugs had hampered its advertisement customization and that it had suffered a $25 million revenue shortfall. The plaintiffs then filed this securities fraud lawsuit, alleging that Twitter had misled investors by hiding the scope of its software bugs when it touted its latest advertisement initiative. Securities laws, however, do not require real-time business updates or complete disclosure of all material information whenever a company speaks on a particular topic. To the contrary, a company can speak selectively about its business so long as its statements do not paint a misleading picture. Twitter's statements about its advertising program were not false or misleading because they were qualified and factually true. The company had no duty to disclose any more than it did under federal securities law. II. Background Twitter operates a social media platform that allows people to share short 280-character messages to the public. Like most social media outlets, Twitter does not charge its users but rather earns money through advertising. Twitter shares certain user data--e.g., cell phone location data--with companies that pay more for ads tailored to certain users. But because of privacy concerns, Twitter has permitted users to opt out of such data-sharing since 2017. At issue is Twitter's Mobile App Promotion ("MAP") product, which allows advertisers to prompt users to download their apps onto their phones or tablets. MAP is most effective when an advertiser knows information about the user's device settings, such as its operating system or which apps the user has already downloaded. Twitter has highlighted MAP as an important driver of Twitter's future revenue growth, and has invested in an improved, next generation MAP product. Despite its earlier pledge to allow user opt-outs, Twitter announced in a May 13, 2019 blog post that it had discovered software bugs that caused sharing of cell phone location data of its users. It, however, told its users that it had fixed the problems. Then about three months later on August 6, Twitter announced in a tweet that it had again accidentally shared user data with advertisers, even for those who had opted out. When Twitter said that it had "fixed these issues," it did not mean resolving the software bugs, which proved to be difficult. Rather, Twitter had stopped sharing user data for its MAP advertising program altogether. This meant no data-sharing for all users and thus also less revenue from MAP. Twitter did not disclose these facts at that time. And according to the complaint, Jack Dorsey, Twitter's Chief Executive Officer, and Ned Segal, its Chief Financial Officer, had access to the company's key performance metrics, including Cost Per Ad Engagement, which allegedly would have flagged this brewing problem with MAP. Finally, about 11 weeks later on October 24, Twitter in its quarterly earnings report disclosed the software bugs hampering MAP and reported a $25 million revenue shortfall. In response to this news, some analysts downgraded the stock and the share price dropped over 20%. Within five days of this announcement, Khan Hasan, an individual investor, filed a putative class action on behalf of all persons who bought Twitter's stock between July 26, 2019 and Oct. 23, 2019 against Twitter and its two top executives, Dorsey and Segal. Under the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4, the district court consolidated it with another similar action, and named the Weston Family Partnership, LLP and the Twitter Investor Group as co-lead plaintiffs and counsel for the class. The Plaintiffs then filed a consolidated class action complaint. The complaint alleged violations of Section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. Section 78j(b), and Rule 10b-5, 17 C.F.R. Section 240.10b-5. It also included a claim against Dorsey and Segal for control person liability under Section 20(a) of the Exchange Act, 15 U.S.C. Section 78t. The Plaintiffs allege that these statements were false or materially misleading: (1) Twitter's July 26, 2019 shareholder letter and July 31, 2019 Form 10-Q stated the company is continuing [its] work to increase the stability, performance, and flexibility of its ads platform and MAP, but that it is not there yet and that this work will take place over multiple quarters, with a gradual impact on revenue. Segal added that the company is still in the middle of that work relating to MAP improvements, and that it is still at the state where he believes that you would see its impact be gradual in nature. The Plaintiffs allege that these statements are false because the defendants did not disclose the software bugs allegedly plaguing MAP then and suggested that MAP was on track. (2) The Form 10-Q also contained warnings that the company's products and services may contain undetected software errors, which could harm its business and operating results. The Plaintiffs claim that this statement is misleading because Twitter supposedly knew by this time that software errors would—not just may—harm the bottom line. (3) Because of the allegedly false or misleading statements in the 10-Q filing, Twitter's Sarbanes-Oxley (SOX) certifications signed by Dorsey and Segal were also false or misleading. (4) On Aug. 6, 2019, the company issued a tweet that stated: We recently discovered and fixed issues related to your settings choices for the way we deliver personalized ads, and when we share certain data with trusted management and advertising partners, and Twitter's Help Center claimed that it fixed these issues on Augu. 5, 2019. The Plaintiffs assert that this statement misleadingly suggested Twitter had solved the software bugs, not just the privacy leak. (5) On Sept. 4, 2019 at an investor conference, Segal stated that the company's MAP work is ongoing and that Twitter continued to sell the existing MAP product. The Plaintiffs again claim that Twitter failed to disclose the scope of the software bugs hindering MAP. (6) At the same conference, Segal stated that Asia has tended to be more MAP-focused historically. This statement, according to the Plaintiffs, glossed over MAP's software bugs. The Defendants filed a Rule 12(b)(6) motion to dismiss, arguing that the Plaintiffs failed to (1) allege statements that are materially false or misleading, or are otherwise actionable; (2) establish a strong inference of scienter; and (3) establish loss causation. The district court granted the motion on the first two grounds, but it did not address loss causation. And because the Section 20(a) control liability claim relies on the same allegations as the Section 10(b) claim, the district court also dismissed it. The district court granted leave to amend, but the Plaintiffs did not file an amended complaint and instead filed the notice of appeal. Then several days later, the district court sua sponte considered the claims dismissed and closed the case. III. Analysis A. The Court Has Appellate Jurisdiction Because the District Court Ultimately Issued a Final Order To start, the Defendants argue that the Court lacks jurisdiction to hear the appeal because the Plaintiffs appealed a non-final order. The Defendants rest their argument on WMX Techs. v. Miller, 104 F.3d 1133 (9th Cir. 1997). In that case, WMX sought appellate review of an order in which the district court dismissed some of its claims with leave to amend. The Ninth Circuit dismissed for lack of appellate jurisdiction because "a plaintiff, who has been given leave to amend, may not file a notice of appeal simply because he does not choose to file an amended complaint. A further district court determination must be obtained." That last sentence is key: Unlike in the case, the district court in that case had not received a "further district court determination" -- a final order dismissing the case—by the time we heard the appeal. So the district court never cured the premature appeal under Rule 4(a)(2). In the case, the district court issued a final order dismissing the case, giving us jurisdiction to hear the appeal. B. The Complaint Fails to State a Claim Under Section 10(b) Because Twitter's Statements Are Not False or Materially Misleading To state a claim under Section 10(b) of the Exchange Act and Rule 10b-5, the complaint must plausibly allege: "(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. The Plaintiffs must also overcome several hurdles to successfully plead a claim under Section 10(b). First, under the PSLRA's particularity requirements and Federal Rule of Civil Procedure 9(b), allegations of "fraud must be accompanied by the who, what, when, where, and how of the misconduct charged." Second, an allegedly misleading statement must be "capable of objective verification." Finally, even if a statement is objectively false or misleading, the PSLRA provides a "safe harbor" for forward-looking statements if such statements are either identified as forward-looking and accompanied by a meaningful cautionary statement, or if the plaintiff fails to show that the statement was made with actual knowledge that it was false or misleading. The Circuit opines that (i) Twitter had no legal duty to disclose immediately the software bugs in its MAP program, especially given that its earlier statements about MAP's progress were qualified and vague; (ii) the Plaintiffs have failed to plausibly allege falsity based on their theory that the software issues had materialized and impacted revenue in July; and (iii) the Plaintiffs' challenge of Twitter's July 2019 statements in its shareholder letter and 10-Q fails for another reason: They were identified as forward-looking statements and fall within the safe harbor of the Exchange Act. C. The District Court Properly Dismissed the Section 20(a) Claims Under Section 20(a) of the Exchange Act, "certain 'controlling' individuals are also liable for violations of section 10(b) and its underlying regulations." Because a Section 20(a) claim is derivative, "a defendant employee of a corporation who has violated the securities laws will be jointly and severally liable to the Plaintiff, as long as the plaintiff demonstrates 'a primary violation of federal securities law' and that 'the defendant exercised actual power or control over the primary violator.'" But, the Plaintiffs did not adequately plead a primary violation of Section 10(b) or Rule 10b-5 by any defendant. Thus, control person liability under Section 20(a) cannot survive. IV. Conclusion The Ninth Circuit affirmed the district court's order granting the Defendants' motion to dismiss. A full-text copy of the Court's March 23, 2022 Opinion is available at https://tinyurl.com/2up8v5ev from Leagle.com. Tamar Weinrib -- taweinrib@pomlaw.com -- (argued) and Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, in New York City; Jeffrey P. Campisi, Robert N. Kaplan, and Jason A. Uris, Kaplan Fox & Kilsheimer LLP, in New York City; Laurence D. King and Mario M. Choi, Kaplan Fox & Kilsheimer LLP, in Oakland, California; Shannon L. Hopkins and Andrew E. Lencyk, Levi & Korinsky LLP, in Stamford, Connecticut; for the Plaintiffs-Appellants. Susan E. Engel -- susan.engel@lw.com -- (argued), Andrew B. Clubok -- andrew.clubok@lw.com -- and Matthew Peters -- matthew.peters@lw.com -- Latham & Watkins LLP, in Washington, D.C.; Michele D. Johnson, Latham & Watkins LLP, in Costa Mesa, California; Elizabeth L. Deeley and Nicholas Rosellini, Latham & Watkins LLP, in San Francisco, California; for the Defendants-Appellees. USPACK LOGISTICS: Denial of Arbitration in Easterday Suit Affirmed ------------------------------------------------------------------ In the case, MICHAEL EASTERDAY, individually and on behalf of all persons similarly situated, Plaintiff v. USPACK LOGISTICS LLC, Defendant, Civil No. 15-7559 (RBK/AMD) (D.N.J.), Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey, Camden Vicinage, affirmed Judge Donio's June 30, 2021 order denying the Defendant's renewed motion to compel arbitration. I. Background Plaintiff Michael Easterday is a former employee of the Defendant. US Pack provides courier services throughout the Northeastern United States for companies selling pharmacy-related services to customers in the health care industry. The Plaintiff worked as a courier for US Pack, delivering medicine and other pharmaceutical products on behalf of the company. The Plaintiff brought suit on behalf of a class of similarly situated individuals, namely other delivery drivers for US Pack. He alleges that the Defendant misclassified him and other drivers as independent contractors, thereby subjecting them to improper deductions from pay and denial of overtime pay. He brings causes of action for violation of the New Jersey Wage Payment Law, the Overtime Wage and Hour Law, and unjust enrichment. The Plaintiff signed an employment contract which contains a binding arbitration agreement. The Arbitration Provision then sets forth the process by which arbitration will take place. The Defendant first moved to compel arbitration in November 2015. In response, the Plaintiff argued that the Court could not compel arbitration because he, as a transportation worker engaged in interstate commerce, was subject to the FAA's "Section 1 Exemption." In February 2018, the Supreme Court granted certiorari in New Prime, Inc. v. Oliveira, 139 S.Ct. 532 (2019), a case that would directly address the issue of whether a distinction existed between employees and independent contractors for purposes of the FAA's Section 1 Exemption. Accordingly, in December 2018, Judge Donio ordered that the proceedings in the current case be stayed pending the Supreme Court's decision in New Prime. In January 2019, the Supreme Court held in New Prime that the Section 1 Exemption applies to both independent contractors and employees, finding that a distinction between the two categories of workers was immaterial. On Feb. 27, 2019, Judge Donio held a telephone conference in which both parties agreed that the Supreme Court's decision in New Prime resolved the issue of whether the Plaintiff fell within the FAA's Section 1 Exemption. She therefore held in an April 2020 order that the Plaintiff was excluded from the FAA's coverage. After reaching this determination, Judge Donio moved to the question of whether the Plaintiff could be compelled to arbitrate his claims under any other law. She held that because the Arbitration Provision was silent as to the application of any state law in the event that the FAA was deemed inapplicable, Defendant failed to demonstrate mutual assent to arbitrate under state law. At the time of Judge Donio's April 2020 order, there existed an inconsistency within New Jersey appellate courts on whether a court should apply the New Jersey Arbitration Act ("NJAA") in the event of the FAA's inapplicability. This inconsistency was settled by the New Jersey Supreme Court in July 2020 in Arafa v. Health Express Corporation, 233 A.3d 495 (N.J. 2020), ("Arafa II"). In Arafa II, the New Jersey Supreme Court held that NJAA applies automatically as a matter of law to all non-exempted arbitration agreements made on or after its Jan. 1, 2003 effective date. Id. at 506. Further, NJAA will apply even if not explicitly mentioned in an arbitration agreement, as its application is "automatic." On May 23, 2020, the Defendant appealed Judge Donio's April 2020 decision to the District Court. On Dec. 4, 2020, the Court vacated Judge Donio's decision and remanded for further proceedings. Following the Court December 2020 opinion, the parties submitted supplemental briefing on the Defendant's renewed motion to compel arbitration under the NJAA. In her June 30, 2021 Order, Judge Donio denied request to compel arbitration. On July 28, 2021, the Defendant appealed Judge Donio's June 30, 2021 order denying its request to compel arbitration. It argues that Judge Donio's June 2021 order is "expressly at odds" with the Court's December 2020 opinion. It points to several decisions by the New Jersey Appellate Division and in the District of New Jersey which it claims demonstrate trending case law favoring enforcement of arbitration provisions since Arafa II was decided. In response to the Defendant's appeal, the Plaintiff argues that Judge Donio was correct to hold that Arafa II does not require a court to automatically compel arbitration, but rather requires an additional finding that the arbitration provision meets the relevant contractual standards in New Jersey outlined in Atalese v. U.S. Legal Services Group, L.P., 99 A.3d 306, 315 (N.J. 2014) and reiterated in Arafa II. The Plaintiff further argues that the Defendant misrepresented the similarities between the Arbitration Provision in the present case and the provisions considered in Arafa II and that Judge Donio properly distinguished the language present in the Plaintiff's agreement. II. Discussion Judge Donio's rulings on the applicability and impact of Arafa II and the validity of the arbitration clause under New Jersey law are legal conclusions, so Judge Kugler reviews each de novo. A. Arafa II's Mandate The Defendants contend that Judge Donio erred in holding that the New Jersey Supreme Court's decision in Arafa II did not require her to enforce the Arbitration Provision. Arafa II stands for the joint propositions that where an arbitration agreement made under the FAA is found to be exempt from the same, the NJAA "applies automatically as a matter of law to all non-exempted arbitration agreements from its January 1, 2003 effective date on," and that because of this automatic application, "no express mention of the NJAA is required to establish a meeting of the minds that it will apply." Judge Kugler opines that after holding that the NJAA applied automatically to the arbitration provision at issue even in the absence of express language, the New Jersey Supreme Court next considered whether the provision should be enforced. Specifically, it looked to whether there was mutual assent and a clear and unambiguous waiver of rights. In the Court's prior opinion, it recognized that Arafa II requires automatic application of the NJAA, but not automatic enforcement of an arbitration provision. In that decision, the Court noted that a court should "automatically apply the NJAA and grant a motion compelling arbitration if it otherwise determines that the standard to grant a motion to compel is satisfied." Arafa II promotes the federal and statewide policy favoring arbitration by automatically applying the NJAA even when the parties have not expressly agreed to do so. It does not, however, abrogate a court's responsibility to ensure that an arbitration provision is valid and enforceable under traditional standards of contract formation. B. Mutual Assent and Waiver The Defendants further contend that Judge Donio erred in holding the Arbitration Provision to be unenforceable because it failed to establish a clear waiver of the Plaintiff's rights. Because the Plaintiff has sufficiently demonstrated that there is a question as to whether the parties agreed to arbitrate, the Defendant's motion will be reviewed using a summary judgment standard. The Defendant's motion should therefore be denied if the Plaintiff can establish that there is a genuine dispute as to the enforceability of the arbitration clause. Judge Kuger opines that the failure of the Arbitration Provision to mirror the language found enforceable in Arafa II is not fatal to the Defendant's argument that the Provision should be enforced, especially in light of the New Jersey Supreme Court's statement that "no magical language is needed to accomplish a waiver of rights in an arbitration agreement." What is fatal to Defendant's argument, however, is the lack of a clear and unambiguous waiver in the Arbitration Provision. The key purpose of the waiver requirement is to ensure that a plaintiff knows he is giving up his right to bring his claims in court or to have a jury resolve the dispute. The language in the Arbitration Provision that comes closest to meeting this requirement is the language above the signature block informing the signee that the Contract contains a binding arbitration provision that affects his legal rights. The Arbitration Provision, however, does not explain what these legal rights are (i.e., the right to bring suit in court), nor does it explain how these legal rights are affected by the Arbitration Provision (i.e., they are waived entirely). The Defendant argues that this language was sufficient to inform the Plaintiff that he waived "certain rights" by agreeing to be bound by the Provision. In evaluating the enforceability of arbitration agreements, however, Judge Kugler holds that New Jersey law requires that the agreement do more than inform the parties that they have waived "certain rights" -- the parties must be informed that they have waived their right to bring suit in a judicial forum. C. Atalese's Applicability to Non-Consumer Fraud Cases The Defendant makes an additional argument that the New Jersey Supreme Court's holding in Atalese does not apply to the case at hand, citing an unpublished decision of the Superior Court of New Jersey. 1567 South Realty, LLC v. Strategic Contract Brands, Inc., No. A-0935-10T2, 2020 WL 3864974 (N.J. Super. Ct. App. Div. 2020). It argues that the holding in Atalese is a "heightened standard" that is "only applicable in the context of consumer fraud cases." This argument fails for two reasons, Judge Kugler says. First, this argument misrepresents the holding in 1567 South Realty. The court in 1567 South Realty did distinguish the commercial construction contract before it from the consumer fraud context of Atalese. Second, if the Court were to apply the holding of 1567 South Realty to the facts at hand, the Plaintiff is much more similar to the "average member of the public" discussed in Atalese than he is to the business-owner plaintiffs in 1567 South Realty who negotiated contracts daily. The Plaintiff, an individual working as a delivery driver for the Defendant, did not have the same bargaining power or level of legal sophistication as Subcontracting Concepts, Inc., the other party to the Contract and a contract management services company. III. Conclusion For the reasons contained in his Opinion, Judge Kugler affirmed Judge Donio's June 30, 2021 order. An order follows. A full-text copy of the Court's March 23, 2022 Opinion is available at https://tinyurl.com/97pmwe3m from Leagle.com. VOLTA INC: Faces Kampe Securities Class Suit Over Share Price Drop ------------------------------------------------------------------ KAROLINE KAMPE, Individually and on Behalf of All Others Similarly Situated v. VOLTA INC., SCOTT MERCER, and FRANCOIS P. CHADWICK, Case No. 3:22-cv-02055 (N.D. Cal., March 30, 2022) is a class action on behalf of persons and entities that purchased or otherwise acquired Volta securities between August 2, 2021 and March 28, 2022, inclusive pursuing claims against the Defendants under the Securities Exchange Act of 1934. On August 26, 2021, Volta Industries, Inc., a private entity, and Tortoise Acquisition Corp. II, a special purpose acquisition company, completed a business combination pursuant to which the combined entity was named Volta Inc. On March 2, 2022, after the market closed, Volta revealed that the financial impact of the restatement of its third quarter 2021 financial results was greater than previously disclosed, expecting to report a net loss of $69.7 million for the quarter. On this news, the Company's share price fell $0.11, or 2.6%, to close at $4.01 per share on March 3, 2022, on unusually heavy trading volume. Then, on March 21, 2022, Volta announced that it would reschedule its fourth quarter and full year 2021 financial results. On this news, the Company's share price fell $0.38, or 8.4% to close at $4.12 per share on March 21, 2022, on unusually heavy trading volume. Then, on March 28, 2022, Volta announced that its founders, Scott Mercer and Christopher Wendel, had resigned from their positions as CEO and President, respectively, and from the Board of Directors of the Company. On this news, the Company's share price fell $0.76, or 18%, to close at $3.37 per share on March 28, 2022, on unusually heavy trading volume. Throughout the Class Period, the Defendants allegedly made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that Volta 11 had improperly accounted for restricted stock units issued in connection with the Business Combination. As a result of the Defendants' alleged wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. The Plaintiff purchased Volta securities during the Class Period, and suffered damages as a result of the alleged federal securities law violations and false and/or misleading statements and/or material omissions. Volta partners with real estate and retail businesses to locate and deploy its electric vehicle charging stations. The Company generates revenue from advertising on its content-driven charging stations, installing and maintaining the charging stations, and delivering electricity at the charging stations.[BN] The Plaintiff is represented by: Robert V. Prongay, Esq. Charles Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: rprongay@glancylaw.com clinehan@glancylaw.com prajesh@glancylaw.com info@glancylaw.com - and - Frank R. Cruz, Esq. THE LAW OFFICES OF FRANK R. CRUZ 1999 Avenue of the Stars, Suite 1100 Los Angeles, CA 90067 Telephone: (310) 914-5007 VOLTA INC: Robbins Geller Reminds Investors of May 31 Deadline -------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP announces that purchasers of Volta Inc. (NYSE: VLTA) securities between August 2, 2021 and March 28, 2022, inclusive (the "Class Period") have until May 31, 2022 to seek appointment as lead plaintiff in Kampe v. Volta Inc., No. 22-cv-02055 (N.D. Cal.). The Volta class action lawsuit charges Volta 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 Volta 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 Volta class action lawsuit must be filed with the court no later than May 31, 2022. CASE ALLEGATIONS: Volta partners with real estate and retail businesses to locate and deploy its electric vehicle charging stations. On August 26, 2021, Volta Industries, Inc. ("Legacy Volta"), a private entity, and Tortoise Acquisition Corp. II, a special purpose acquisition company ("SPAC" or blank-check company), completed a business combination pursuant to which the combined entity was named Volta Inc. The Volta class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) Volta had improperly accounted for restricted stock units issued in connection with the business combination; (ii) as a result, Volta had understated its net loss for third quarter 2021; (iii) there were material weaknesses in Volta's internal control over financial reporting that resulted in a material error; (iv) as such, Volta would restate its financial statements; (v) consequently, Legacy Volta's founders would imminently exit Volta; (vi) thus, Volta's financial results would be adversely impacted; and (vii) as a result of the foregoing, defendants' positive statements about Volta's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On March 2, 2022, Volta revealed that the financial impact of the restatement of its third quarter 2021 financial results was greater than previously disclosed, expecting to report a net loss of $69.7 million for the quarter. On this news, Volta's share price fell by 2.6%. Then, on March 21, 2022, Volta announced that it would reschedule its fourth quarter and full year 2021 financial results. On this news, Volta's share price fell an additional 8.4%. Finally, on March 28, 2022, Volta announced that its founders, defendant Scott Mercer and Christopher Wendel, had resigned from their positions as CEO and President, respectively, and from the Board of Directors of Volta. On this news, Volta's share price fell by approximately 18%, further damaging investors. Robbins Geller has launched a dedicated SPAC Task Force to protect investors in blank check companies and seek redress for corporate malfeasance. Comprised of experienced litigators, investigators, and forensic accountants, the SPAC Task Force is dedicated to rooting out and prosecuting fraud on behalf of injured SPAC investors. The rise in blank check financing poses unique risks to investors. Robbins Geller's SPAC Task Force represents the vanguard of ensuring integrity, honesty, and justice in this rapidly developing investment arena. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Volta securities during the Class Period to seek appointment as lead plaintiff in the Volta 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] WIRELESSPCS CHICAGO: Hunter's Bid for Certification Partly Granted ------------------------------------------------------------------ In the case, DATISHA HUNTER, et al., Plaintiff v. WIRELESSPCS CHICAGO LLC, et al., Defendants, Case No. 18 CV 980 (N.D. Ill.), Magistrate Judge Beth W. Jantz of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part the Plaintiffs' renewed motion for conditional certification and the issuance of notice pursuant to the Fair Labor Standards Act. I. Background Plaintiffs Datisha Hunter, Latricia Hunter and Wilfredo Rivera filed the putative class and collective action against Defendants WirelessPCS Chicago LLC, Sky Net Wireless IL, LLC, Moeen Hasan Khalil, and Saed Khalil for claimed violations of the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq. ("FLSA"), the Illinois Minimum Wage Law, 820 ILCS Section 105/1 et seq. ("IMWL"), the Illinois Wage Payment and Collection Act, 820 ILCS Section 115/1 et seq. ("IWPCA"), and various local ordinances. The Plaintiffs were each employed as sales clerks at various Chicagoland MetroPCS franchise locations, where they sold cellular phone products and services. They allege that they were jointly employed by the Defendants, and that the Defendants willfully violated the FLSA and state and local laws by failing to pay them and other similarly situated employees minimum wages for all time worked, and failing to pay overtime wages for all hours worked over 40 in individual workweeks. Specially, the Plaintiffs contend that although they were sometimes paid appropriate regular wages for their work, at other times their rate of pay was not as high as minimum wage. They further allege that they worked off-the-clock hours (i.e., time for which they were not compensated), that their hours were not consistently tracked and compensated correctly, and that Defendants unlawfully deducted money from their wages, resulting in payments of less than the applicable minimum wage. The Plaintiffs purport to bring their claims on behalf of all similarly situated current and former employees of the 10 MetroPCS franchise locations in Illinois that the Defendants operated, estimating there may be around 100 such individuals. The Plaintiffs move pursuant to 29 U.S.C. Section 216(b) for conditional certification and notice of the following two collectives: a. Minimum wage collective: All individuals employed by Defendants in Illinois to sell cell phones, cell phone accessories, and cell phone services, regardless of the specific job title or titles used to describe such individuals in Defendants' data systems during the Class period who were not paid minimum wages for all time worked (FLSA Minimum Wage Collective). b. Overtime collective: All individuals employed by Defendants in Illinois to sell cell phones, cell phone accessories, and cell phone services, regardless of the specific job title or titles used to describe such individuals in Defendants' data systems during the Class period who worked more than 40 hours in one or more individual workweeks and were not paid appropriate overtime (FLSA Overtime Collective). The motion is not the Plaintiffs' first motion for conditional certification, and a review of the history of the case is important to the consideration of the current motion. The Plaintiffs first moved for conditional certification on April 18, 2018, shortly after the filing of their initial complaint, as is typical in FLSA putative collective actions. On May 2, 2018, the Court set a class discovery schedule and briefing schedule on the Plaintiffs' motion. Both were subsequently extended to accommodate class discovery and corresponding discovery disputes. By August 2018, the parties turned their attention to the possibility of a class-wide settlement, and they requested and received a referral to the Magistrate Judge to assist in that endeavor. A settlement conference was held on Oct. 15, 2018, and the parties consented to the jurisdiction of the Magistrate Judge that same day. In efforts to maximize the possibility of settlement, the Court stayed formal discovery two days later, and presided over the informal exchange of information in connection with settlement discussions for the next several months. On March 7, 2019, the Court struck by agreement the Plaintiffs' motion for conditional certification, without prejudice to its refiling if the parties were unable to reach a settlement. On May 24, 2019, the Court recruited a second Magistrate Judge to preside over further settlement negotiation sessions, again noting the parties' agreement to forego formal discovery pending the outcome of their mediation efforts. Several months of further settlement negotiations followed, including the court-facilitated informal exchange of additional information, and at least six settlement-related conferences with the recruited Magistrate Judge. Despite these efforts, however, by Dec. 12, 2019, the Court concluded that settlement was not "a realistic possibility at this juncture and that it was not a productive use of the parties' and the Court's time to focus exclusively on the possibility of settlement at this time." The Court therefore terminated settlement proceedings on Dec. 16, 2019. Litigation resumed thereafter, and in January 2020, the parties proposed a new discovery schedule. The case was reassigned to the undersigned the next month, and discovery motion practice resumed shortly thereafter. A schedule was subsequently set and extended for the re-filing of the Plaintiffs' motion for conditional certification. On April 8, 2021, the Plaintiffs filed their renewed motion for conditional certification. The Court then set a briefing schedule, which was extended three times upon the Defendants' request, and was eventually completed on Aug. 10, 2021. In addition, because the parties' extensive discovery disputes had resulted in repeated depositions of the Defendants as well as the named Plaintiffs, supplementation of the conditional certification briefs was allowed. The Plaintiffs' supplement was filed on Dec. 31, 2021, and the Defendants' supplement was filed on Jan. 7, 2022, a little over two months ago. II. Discussion The Plaintiffs seek step one conditional certification of the two collectives described: One for FLSA minimum wage claims, and another for FLSA overtime claims. The Plaintiffs' theory of FLSA violation is that they and other individuals employed at the Defendants' MetroPCS franchise locations were not always paid for all of the hours they worked and sometimes paid below the minimum wage or the premium overtime wage because Defendants took improper deductions from their paychecks and required off-the-clock work. The Plaintiffs also seek an order equitably tolling the statute of limitations for the claims of the putative opt-ins from the filing of the Plaintiffs' first conditional certification motion on April 18, 2018, to the present. The Defendants oppose conditional certification on the merits, and argue that equitable tolling should not apply. A. Conditional Certification The Plaintiffs allege that they and other employees had their wages deducted without authorization and were required to work "off-the-clock" -- first, for a period of time when they were initially hired but lacked credentials to access a computerized timekeeping system, and second, both before stores opened and after they closed, when they were required to work but directed not to log in and account for their time. They further allege that they and other employees were not always paid for their time, and that they routinely worked more than 40 hours per week without compensation at the overtime rate. To support their allegations, the Plaintiffs submit several affidavits, some payroll documentation, and deposition testimony. They first submit affidavits from each of the named Plaintiffs, who attest that they and other employees logged into and out of a computerized timekeeping system in conjunction with opening and closing of the stores, and that each believed that Defendants did not accurately provide the payroll company with their actual hours worked or commissions earned. According to the Defendants, the Plaintiffs' evidence fails to make the requisite showing to conditionally certify either proposed collective for several reasons. The Plaintiffs' respective declarations are both too vague as to other employees and too individualized as to their own underpayment claims. The Defendants argue that the only reference to other employees in each named Plaintiff's affidavit is found in statements that the affiant "and other employees" logged into a computerized time system as part of their store opening process at the start of their shifts, and logged out of the system as part of store closing at the end of their shifts. They further argue on this point that Plaintiffs do not indicate what these "other" employees' positions were, in which stores they worked, what their duties entailed, whether they were salaried or hourly, whether they had supervisors common to the Plaintiffs, or when they worked for the Defendants. The Defendants contend that this lack of particularity renders the statements lacking in personal knowledge, and insufficient to support Plaintiffs' motion. Moreover, they say, given the infirmities in the Plaintiffs' affidavits, and the fact that the Defendants testified that employees were expected to be paid beyond store hours and the Defendants' timekeeping records demonstrate the Plaintiffs' clock in and out times were beyond store hours, the Plaintiffs present "no evidence" that any timekeeping policy violated the FLSA or that the Plaintiffs were not paid for their time. Finally, the Defendants contend, because the Plaintiffs' claims are based in part on deductions, the specifics of each employees' pay will be at issue, thus rendering proceeding as a collective action inefficient and improper. Upon consideration of the evidence and arguments, Judge Jantz concludes that the Plaintiffs have made the "modest plus" factual showing sufficient to carry them past the first stage of the conditional certification process, although just in part. The affidavits and deposition testimony of the three named Plaintiffs, paired with their pay records and the Defendants' testimony about how they conducted their business, make a sufficient showing that the Plaintiffs and other employees -- at the store(s) at which the Plaintiffs worked -- were subjected to the same practices and policies requiring them to perform certain tasks past store hours or incur payroll deductions, which may have resulted in payment below the federal minimum wage and/or overtime rate. Additionally, the fact that all of the named Plaintiffs attest to having had no means of recording their time for a period when they were first hired, and that they regularly worked more than 40 hours per week and rarely were paid overtime for such work, suggests that the alleged practice of underpayment was not limited to just one employee. On the "modest plus" standard that must be satisfied at step one, it may be inferred that these practices were common to all employees at the store(s) where the Plaintiffs worked. The Plaintiffs' affidavits "need not be 'highly specific,' and 'it is not necessary for the affiants to provide such details as the dates and times they worked overtime hours for which they were not compensated." Although conditional certification is warranted, however, the Plaintiffs' definition of the collectives is too broad. They include no defined class period. Similarly, although the Plaintiffs have had the opportunity to depose multiple corporate representatives of WirelessPCS Chicago and Sky Net Wireless IL, the Plaintiffs' purported evidence about centralized management and operation of the Chicagoland stores is insufficient to extrapolate that what the Plaintiffs experienced or observed at their store(s) also occurred at all of the other franchise locations. In sum, because the Plaintiffs' first step evidence provides insufficient support for including employees who worked at store(s) other than those where the named Plaintiffs worked, Judge Jantz therefore narrows the proposed opt-in collectives accordingly to only those store(s) at which the named Plaintiffs worked. Accordingly, the Plaintiffs' minimum wage and overtime collectives will be certified, but limited to the store(s) at which the named Plaintiffs worked. B. Defendants' Further Objections The Defendants' additional objections to conditional certification of either collective are unpersuasive. First, despite the limitations in the Plaintiffs' showing as discussed, the Defendants' contention that the Plaintiffs offer no evidence of any FLSA violation or that they were not compensated for time worked is inaccurate. The Plaintiffs have pointed to evidence that they had no means of recording their time for a period when they were first hired, that they were not compensated for all of the hours that they worked, and that they routinely worked more than 40 hours per week but were rarely compensated at the overtime rate. Each named Plaintiff also describes that they and other employees logged into and out of the computerized timekeeping system as part of store opening and closing procedures. Each of the named Plaintiffs also attests that their wages were deducted without their knowledge or authorization, and Plaintiffs submit evidence to show that in the case of Datisha Hunter, those deductions resulted in payment below the minimum wage. Although the Defendants may challenge the import of this evidence at a later stage, these affidavits and deposition testimony are evidence sufficient to meet the Plaintiffs' step one showing, albeit with the limitations discussed. Second, notwithstanding the Defendants' argument, a lack of specificity in the Plaintiffs' affidavits as to when and how much they contend they were underpaid does not suggest a lack of personal knowledge rendering their evidence insufficient. The Plaintiffs describe what they saw their co-workers do, and their affidavits sufficiently demonstrate their knowledge as to their own and their co-workers' practices of clocking in and out. The Defendants offer no reason to think that the Plaintiffs would not have been in a position to see other employees clock in or out, or otherwise work at the store off of the clock. Although the Plaintiffs' evidence might be thin, and much more will be needed at step two, the Plaintiffs' evidence is sufficient to meet the "modest plus" burden at step one. Further, while the Defendants raise legitimate concerns about the individualized analysis of each potential opt-in plaintiff's circumstances, such arguments are not appropriately adjudicated at step one certification. It remains to be seen at a later stage whether the Plaintiffs might avoid individualized issues and be able to prove their claims by representative evidence that "would enable a rational determination of each class member's damages." Similarly, the Defendants' argument regarding potential individual set-off issues based on a group chat message involving Rivera and various other employees which refers to "holding the deposits" is speculative and premature at this stage of the litigation. In sum, although it is possible that individual issues will eventually predominate in their claims, the Plaintiffs have sufficiently shown a common policy or practice affecting them and other similarly situated employees at their own store(s) such that conditional certification is appropriate. Finally, contrary to the Defendants' assertions, there is no adequacy of representation problem. The Defendants present no authority to support their assertion that either the limits of Datisha Hunter or Rivera's memory or the manner in which they testified at deposition so taints each of them that a finding that they are incapable of serving as representative plaintiffs should be made in conjunction with conditional certification. Such unsupported arguments are forfeited. Moreover, even if it were not forfeited, the Defendants' challenge based on the named Plaintiffs' adequacy is inapplicable. "Most courts articulating the requirements for conditional certification of a collective action have concluded that the FLSA does not incorporate Rule 23's adequacy criterion for conditional certification." C. Statute of Limitations & Equitable Tolling Because the Court grants conditional certification, it next turns to the Plaintiffs' request to equitably toll the limitations period as to putative opt-in plaintiffs. According to the Plaintiffs, the claims of the putative opt-in plaintiffs should be tolled from the April 18, 2018, filing of their first conditional certification motion to the present, given the Court's prior vacating of the briefing schedule on their first motion, and the parties' subsequent agreement to strike it without prejudice in efforts to encourage their settlement negotiations. The Defendants, on the other hand, assert that equitable tolling should not apply to the Plaintiffs' claims, because the Plaintiffs have failed to show that some extraordinary circumstance prevented potential claimants either from opting in or filing their own action(s) against Defendants in the years since Plaintiffs' initial motion. Judge Jantz concludes that tolling of the limitations period is appropriate from the filing of the Plaintiffs' first conditional certification motion, April 18, 2018, until the termination of settlement proceedings on Dec. 12, 2019, for a total of 603 days. Additionally, given the Defendants' agreement that some period of tolling during the pendency of the current conditional certification motion is appropriate, and the fact that the briefing schedule on the current motion was extended three times upon the Defendants' request, resulting in a total extension of 90 days, i.e., from May 12, 2021, to Aug. 10, 2021, tolling for an additional 90 days is appropriate, for a total tolling of the three-year limitations period of 693 days. The Plaintiffs' motion to equitably toll the limitations period is thus granted in part and denied in part. Accordingly, even if the Defendants no longer employed anyone as of June 8, 2018, as they claim, it is not the case that no unexpired claims of putative plaintiffs could remain (because by the Court's calculation, tolling the three-year limitations period by 693 days means that claims arising as of June 8, 2018, may not expire until around May 1, 2023). The tolling period must be taken into consideration in the Plaintiffs' revised collective definitions, and the Court thus turns to the Plaintiffs' proposed form of notice. D. Plaintiffs' Proposed Form of Notice Having found that conditional certification is appropriate, and that unexpired claims of putative plaintiffs may remain, Judge Jantz therefore concludes that notice of the action should issue to people who worked at the same MetroPCS franchise location(s) as any of the named Plaintiffs. Neither the Plaintiffs nor the Defendants identified those particular store(s) for the Court. Accordingly, the Plaintiffs must revise their proposed Notice and Consent with these narrowed collectives in mind. The Plaintiffs must also include a proposed time period in the definition of their collectives, consistent with the Court's equitable tolling analysis. Further, the Plaintiffs' amended proposed notice must remove characterization of the case as in its "early" pretrial stage, and must either remove reference to Ghaben and Hamad Brothers as Defendants, or note that they have been dismissed without prejudice. As to these issues and the Defendants' additional objections to the notice, the Plaintiffs are directed to meet and confer with Defendants and file an agreed motion for approval of an amended proposed Notice and Consent, or setting out in no more than two pages the parties' respective positions as to the form. Finally, to assist in the distribution of notice, the Plaintiffs additionally request an order instructing the Defendants to produce within seven days the names, last known addresses and email addresses of prospective opt-in plaintiffs in Microsoft Excel format. The also request the visible posting of a copy of the court-approved notice in the Defendants' business premises in Illinois, an order precluding the Defendants from securing any releases or waivers from their employees of their FLSA claims, and an order compelling Defendants to "enclose the court-approved notice in pay envelopes in English and in Spanish to all of the Defendants' current employees." The Defendants do not respond to these requests, and have accordingly waived any objection to them, which are granted in part as unopposed. Accordingly, within seven days of the Court's approval of an amended proposed Notice and Consent, the Defendants will produce the names, last known addresses and email addresses of prospective opt-in plaintiffs in whatever format such information is stored and may be made accessible to the Plaintiffs, so that the Plaintiffs may issue notice and one subsequent reminder by U.S. postal mail and email (in English and Spanish). In the event that the Defendants still operate any of the operative store(s) within the scope of the collectives and have employees there, theys will post the Court-approved Notice within seven days of its approval and include the notice in potential opt-in plaintiffs' next pay envelopes (in both English and Spanish versions, if provided by the Plaintiffs). III. Conclusion For each of the foregoing reasons, Judge Jantz granted in part and denied in part the Plaintiffs' renewed motion, consistent with her Opinion. An agreed motion was due April 6, 2022, for approval of an amended proposed Notice and Consent, or setting out in no more than two pages the parties' respective positions as to the form. The parties also are directed to meet and confer on a proposed collective discovery schedule, by April 13, 2022. A Joint Status Report setting out their agreed proposed schedule, or stating the parties' respective positions on it (rather than argument), is due by April 20, 2022. All other previously ordered dates to stand. A full-text copy of the Court's March 23, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2p97czah from Leagle.com.Leagle.com. XCEL ENERGY: Faces Class Action Lawsuit Over Marshall Fire ---------------------------------------------------------- Rogelio Mares at kdvr.com reports that investigators said it could take months to pinpoint the cause of the devastating Marshall Fire, but a handful of victims are going after the power company now. They're suing Xcel Energy on the claim that their power lines and equipment sparked the fire. This is the first legal action taken for the most destructive fire in Colorado's history. It's likely this lawsuit won't be the last in connection with the Marshall Fire. "It is unquestionable that there will be a series of lawsuits," FOX31 legal expert Chris Decker said. Class-action lawsuit filed in Marshall Fire The first is a class-action lawsuit against Xcel Energy. "The process of establishing a class must be done through the court and a court action," Decker said. "This is the first attempt to establish a class of plaintiffs." This is a strategic move by attorneys representing a number of people affected by the fire against Xcel Energy. The attempt could legally identify a class of plaintiffs for cases to come. "A class action is a group of individuals who are similarly situated, who have similar claims against a, or multiple, defendants," Decker said. The law firm handling the lawsuit is the Schack Law Group out of San Diego which, according to their website, has handled wildfire lawsuits before. "If they are able to establish a class and represent the group of plaintiffs, then they would be in the driver's seat of all of the litigations," Decker said. What caused the Marshall Fire? Officials in Boulder County said their investigation into what caused the fire is not finished just yet, so why file a lawsuit before the case is closed? "My guess is that they believe that they have sufficient evidence at this time to meet their claims and they also probably believe that as the investigation matures and we get more information, that will only support their claims," Decker said. For their part, Xcel Energy told FOX31 the power lines and equipment in question were thoroughly inspected and showed no signs that they started a fire. The energy provider said it's reviewing the lawsuit and will continue to work with authorities in the ongoing investigation.[GN] [*] Canadian Beef Consumers Get Relief From High Prices After Suit ------------------------------------------------------------------ Ross Marowits at The Canadian Press reports that Canadian beef consumers have a chance of getting some relief from high prices after a second class-action lawsuit has been filed alleging that the country's largest beef suppliers conspired to restrict competition and raise prices. The latest lawsuit was filed by the Belleau Lapointe law firm on March 24 in Quebec Superior Court. "I find this situation infuriating," said Sylvie de Bellefeuille, the lead plaintiff and a lawyer with Option consommateurs, in an interview. "When we're talking about meat, especially beef, it's something that lots of people purchase for their basic food needs and when it comes to people with lower income, for example, they have a hard time now buying beef, so this is something that really outrages me." She said the case was filed after reviewing a similar national lawsuit filed in British Columbia in February that would apply to everyone in Canada. That one was filed by Camp Fiorante Matthews Mogerman on behalf of Giang Bui, a Vancouver resident who purchased beef for himself and his family. In the statement of claim, the law firm argued that the companies effectively severed the economic relationship between the price of cattle purchased by them for slaughter from the price of beef sold in Canada. "As a result, while the price the defendants paid for cattle dropped, the supply of beef was restricted and the price of beef was fixed at an elevated, anticompetitive level, causing damages to the plaintiff and class members, while increasing the profits of the defendants and their co-conspirators." Lead attorney Reidar Mogerman said the Quebec and B.C. cases make the same allegations. "We are working with the Quebec lawyers and ultimately there will be a co-ordinated national strategy," he said from Vancouver. De Bellefeuille said the lawsuit has attracted a lot of attention because people are frustrated by the situation. "It's one thing to have prices that are higher because of the pandemic, but learning that there could be more to it and that there's collusion between those companies makes things even more unacceptable." The lawsuits allege that various companies related to Cargill Inc., JBS Canada ULC, Tyson Food Inc. and National Beef Packing Co LLC acted in concert since Jan. 1, 2015. The lawsuits, which still have to be certified by judges, are seeking financial compensation equivalent to revenues generated by the artificially inflated portion of selling prices. De Bellefeuille said the amount of compensation would likely be determined at trial. But the sums could be large if class action lawsuits are certified to represent Canadians across the country. "Hopefully we will be able to reimburse and get people to have at least part of their share. So we'll see how it goes, but our goal is to try to make sure that people get their money back." The plaintiffs say the meat-packing plants control 85 per cent of the Canadian beef market and 80 per cent of the U.S. market. The legal filing comes after JBS USA agreed in early February to pay US$52.5 million to settle one of several price-fixing lawsuits in Minnesota without admitting liability. The U.S. Justice Department has been investigating the industry since the attorneys general for 11 Midwestern states urged it nearly two years ago to look into market concentration and potential price fixing by meat packers in the cattle industry during the coronavirus pandemic. "The claims lack merit," Cargill spokeswoman April Nelson wrote in an email. "We compete vigorously in the market and conduct ethical business, and we are confident in our efforts to maintain market integrity on behalf of our customers and consumers." The other companies didn't respond to requests for comment. [GN] [*] London Court Blocks Planned Forex Class Suit Against Big Banks ------------------------------------------------------------------ Kirstin Ridley at Reuters reports that a proposed multi-billion pound claim brought by thousands of asset managers, pension funds and financial institutions against major banks over alleged foreign exchange (forex) rigging has been blocked by a London court. London's Competition Appeal Tribunal (CAT), which had been considering the case against JPMorgan (JPM.N), Citigroup (C.N), Barclays (BARC.L), UBS (UBSG.S) and NatWest (NWG.L) since last July, ruled the case was not suitable to proceed as a U.S.-style, opt-out class action. read more The European Commission paved the way for the proposed lawsuit by fining banks more than 1 billion euros ($1.11 billion) in 2019 over two forex cartels, dubbed "Essex Express" and "Three Way Banana Split", between 2007 and 2013. Michael O'Higgins, the former chairman of British watchdog The Pensions Regulator, and Phillip Evans, a former inquiry chair at the Competition Markets Authority, had been vying to lead a class action on behalf of financial claimants. O'Higgins said his team was reviewing its options. "This decision is extremely disappointing, because this claim is exactly the sort of claim that opt-out proceedings were introduced to facilitate in order to provide access to justice to all entities affected by the illegal behaviour of cartelists," he said. "We are reviewing our options to decide how to move forward in a way that best serves the class that we seek to represent." A representative for JPMorgan welcomed the news, saying the tribunal had "acknowledged the clear weaknesses in the applicants' cases". Others were not immediately available for comment. [GN] [^] CLASS ACTION Money & Ethics Conference on May 2 - Register Now ------------------------------------------------------------------ Beard Group, Inc. is hosting the 6th Annual Class Action Money & Ethics Conference on Monday, May 2nd. The conference will be held in person at The Harmonie Club in Manhattan. Sponsorship opportunities are currently available. Showcase your firm's expertise on a panel in front of 150+ class action attorneys, general counsel, litigation financiers, consultants, claims administrators, reporters and academics. Major sponsors include Baird Mandalas Brockstedt LLC, and Schochor, Federico and Staton, P.A. For sponsorship options and details, contact: Bernard Toliver, CMP Tel: (240) 629-3300 ext. 149 E-mail: bernard@beardgroup.com For more conference information, visit us at https://www.classactionconference.com/ Asbestos Litigation ASBESTOS UPDATE: Ballantyne Defends Personal Injury Suits --------------------------------------------------------- Ballantyne Strong, Inc., and certain of its subsidiaries are named as defendants in personal injury lawsuits based on alleged exposure to asbestos-containing materials, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission. The Company states, "A majority of the cases involve product liability claims based principally on allegations of past distribution of commercial lighting products containing wiring that may have contained asbestos. Each case names dozens of corporate defendants in addition to us. In our experience, a large percentage of these types of claims have never been substantiated and have been dismissed by the courts. We have not suffered any adverse verdict in a trial court proceeding related to asbestos claims and intends to continue to defend these lawsuits. During 2021, we recorded a loss contingency reserve of approximately $0.3 million, which represents our estimate of our potential losses related to the settlement of open cases. When appropriate, we may settle certain claims. We do not expect the resolution of these cases to have a material adverse effect on our consolidated financial condition, results of operations or cash flows." A full-text copy of the Form 10-K is available at https://bit.ly/3DHao8a ASBESTOS UPDATE: H.B. Fuller Defends Product Liability Claims ------------------------------------------------------------- H.B. Fuller Company has been named as a defendant in lawsuits in which plaintiffs have alleged injury due to products containing asbestos manufactured more than 35 years ago, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "The plaintiffs generally bring these lawsuits against multiple defendants and seek damages (both actual and punitive) in very large amounts. In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable injuries or that the injuries suffered were the result of exposure to products manufactured by us. We are typically dismissed as a defendant in such cases without payment. If the plaintiff presents evidence indicating that compensable injury occurred as a result of exposure to our products, the case is generally settled for an amount that reflects the seriousness of the injury, the length, intensity and character of exposure to products containing asbestos, the number and solvency of other defendants in the case, and the jurisdiction in which the case has been brought. "A significant portion of the defense costs and settlements in asbestos-related litigation is paid by third parties, including indemnification pursuant to the provisions of a 1976 agreement under which we acquired a business from a third party. Currently, this third party is defending and paying settlement amounts, under a reservation of rights, in most of the asbestos cases tendered to the third party. "In addition to the indemnification arrangements with third parties, we have insurance policies that generally provide coverage for asbestos liabilities, including defense costs. Historically, insurers have paid a significant portion of our defense costs and settlements in asbestos-related litigation. However, certain of our insurers are insolvent. We have entered into cost-sharing agreements with our insurers that provide for the allocation of defense costs and settlements and judgments in asbestos-related lawsuits. These agreements require, among other things, that we fund a share of defense costs, settlements and judgments allocable to years in which the responsible insurer is insolvent." A full-text copy of the Form 10-Q is available at https://bit.ly/37kzn55 ASBESTOS UPDATE: J&J Granted Expedited Appeal of Ch. 11 Strategy ---------------------------------------------------------------- Dietrich Knauth, writing for Reuters.com reports that a U.S. bankruptcy judge granted an expedited appeal of his order that allowed Johnson & Johnson to use the bankruptcy system to try to resolve multi-billion-dollar litigation claiming its talc products cause cancer. Last month, Judge Michael Kaplan ruled that the Chapter 11 filing by a J&J subsidiary was not an abuse of the bankruptcy system. He allowed cancer plaintiffs to challenge that ruling directly in the 3rd U.S. Circuit Court of Appeals, fast-tracking a dispute that has drawn attention and criticism from lawmakers. "Clearly, this impacts decisions and potential restructurings beyond what's being litigated in this court," Kaplan said. J&J used a "Texas two-step," which allows companies to split valuable assets from liabilities through a so-called divisive merger. In October, J&J, which maintains its talc products are safe, put the claims into a newly created entity called LTL Management LLC, which filed for bankruptcy days later. Judge Kaplan said that the bankruptcy would provide a quicker and fair alternative to jury trials for resolving 38,000 individual lawsuits. But critics, like Senator Sheldon Whitehouse of Rhode Island, called the bankruptcy maneuver "a blot on our legal system" that allows wealthy companies to avoid facing victims in court. LTL had opposed a fast-track appeal, and asked for the dispute to first be heard in a U.S. District Court. Judge Kaplan rejected that, saying an interim appeal "doesn't serve any purpose" and would delay the ultimate resolution of the case. Judge Kaplan also ruled that talc plaintiffs should be represented by just one official committee in the bankruptcy case. Attorneys representing mesothelioma patients had argued that there should be separate committees to represent ovarian cancer plaintiffs and mesothelioma plaintiffs. In the 38,000 cases that drove J&J to place LTL into bankruptcy, plaintiffs had alleged that J&J's talc-based products contained asbestos and caused ovarian cancer and mesothelioma, a type of cancer linked to asbestos exposure. J&J denies the allegations, saying decades of scientific testing and regulatory approvals have shown its talc to be safe and asbestos-free. Before the bankruptcy filing, the company faced costs from $3.5 billion in verdicts and settlements, including one in which 22 women were awarded a judgment of more than $2 billion, according to bankruptcy court records. ASBESTOS UPDATE: Park-Ohio Co-Defends 106 Personal Injury Cases --------------------------------------------------------------- Park-Ohio Industries, Inc., is a co-defendant in approximately 106 cases asserting claims on behalf of approximately 169 plaintiffs alleging personal injury as a result of exposure to asbestos, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission. The Company states, "These asbestos cases generally relate to production and sale of asbestos-containing products and allege various theories of liability, including negligence, gross negligence and strict liability, and seek compensatory and, in some cases, punitive damages. "In every asbestos case in which we are named as a party, the complaints are filed against multiple named defendants. In substantially all of the asbestos cases, the plaintiffs either claim damages in excess of a specified amount, typically a minimum amount sufficient to establish jurisdiction of the court in which the case was filed (jurisdictional minimums generally range from $25,000 to $75,000), or do not specify the monetary damages sought. To the extent that any specific amount of damages is sought, the amount applies to claims against all named defendants. "There are four asbestos cases, involving 20 plaintiffs, that plead specified damages against named defendants. In each of the four cases, the plaintiff is seeking compensatory and punitive damages based on a variety of potentially alternative causes of action. In two cases, the plaintiff has alleged three counts at $3 million compensatory and punitive damages each; one count at $3 million compensatory and $1 million punitive damages; one count at $1 million. In the third case, the plaintiff has alleged compensatory and punitive damages, each in the amount of $20.0 million, for three separate causes of action, and $5.0 million compensatory damages for the fifth cause of action. In the fourth case, the plaintiff has alleged compensatory and punitive damages, each in the amount of $10.0 million, for ten separate causes of action. "Historically, we have been dismissed from asbestos cases on the basis that the plaintiff incorrectly sued one of our subsidiaries or because the plaintiff failed to identify any asbestos-containing product manufactured or sold by us or our subsidiaries. We intend to vigorously defend these asbestos cases and believe we will continue to be successful in being dismissed from such cases. However, it is not possible to predict the ultimate outcome of asbestos-related lawsuits, claims and proceedings due to the unpredictable nature of personal injury litigation. Despite this uncertainty, and although our results of operations and cash flows for a particular period could be adversely affected by asbestos-related lawsuits, claims and proceedings, management believes that the ultimate resolution of these matters will not have a material adverse effect on our financial condition, liquidity or results of operations. Among the factors management considered in reaching this conclusion were: (a) our historical success in being dismissed from these types of lawsuits on the bases mentioned above; (b) many cases have been improperly filed against one of our subsidiaries; (c) in many cases the plaintiffs have been unable to establish any causal relationship to us or our products or premises; (d) in many cases, the plaintiffs have been unable to demonstrate that they have suffered any identifiable injury or compensable loss at all or that any injuries that they have incurred did in fact result from alleged exposure to asbestos; and (e) the complaints assert claims against multiple defendants and, in most cases, the damages alleged are not attributed to individual defendants. Additionally, we do not believe that the amounts claimed in any of the asbestos cases are meaningful indicators of our potential exposure because the amounts claimed typically bear no relation to the extent of the plaintiff's injury, if any." A full-text copy of the Form 10-K is available at https://bit.ly/3jclhp2 ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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