/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220517.mbx C L A S S A C T I O N R E P O R T E R Tuesday, May 17, 2022, Vol. 24, No. 92 Headlines 3M COMPANY: Pelachik Suit Claims Complications From AFFF Products ACCOLADE INC: Schall Law Firm Investigates Securities Claims ACUSHNET CO: Court Refuses to Remand Garcia's Unpaid Wages Suit ALBERTSONS COMPANIES: Web Site Inaccessible to Blind, Mahoney Says AMAZON.COM INC: Faces Joyce Securities Suit Over Stock Price Drop AMAZON.COM INC: Pomerantz Law Discloses July 5 Deadline ANAPLAN INC: Monteverde & Associates Continues Probe APHRIA INC: Securities Suit Granted Class Certification in S.D.N.Y. ARCARE: Hale Sues Over Failure to Safeguard Personal Information ARIZONA BEVERAGES: Campbell Sues Over Mislabeled Snack Products ARQIT QUANTUM: Faces Glick Securities Suit Over Share Price Drop ASTER HEALTH: Fails to Pay Caregivers' Minimum Wages, Nweke Alleges AURINIA PHARMA: Timothy L. Miles Reminds of June 14 Deadline BAKKT HOLDINGS: Pomerantz LLP Reminds of June 20 Deadline BARCLAYS PLC: Bragar Eagel Investigates Securities Claims BERBIX INC: Mahmood Wage-and-Hour Suit Goes to N.D. Illinois BEST BUY: Fails to Issue Proper Repossession Notice, Dashiell Says BLACKBOARD STUDENT: Faces Richert FLSA Suit Over Unpaid Overtime BOB EVANS: Mitchell Sues Over Unpaid Wages for Tipped Employees BONDI SANDS: N.D. California Trims Claims in Moran Class Suit CALIFORNIA: Faces Class Action Over Alleged Data Breach CAPSTONE LOGISTICS: Verdugo Labor Suit Removed to C.D. California CEDAR REALTY: Kim Sues Over Shareholder Investment Value Scheme CENTERPOINT LEGAL: Appeals Court Reverses Dismissal of Gomez Suit CHANGE HEALTHCARE: Estevez Sues Over Non-Exempt Workers' Unpaid OT COMMERCE DISTRIBUTION: Rodriguez Suit Removed to C.D. California CRAWLSPACE DOCTOR: Faces Cobb FLSA Suit for Unpaid OT in E.D. Ark. CUSHMAN & WAKEFIELD: Conriquez Suit Removed to N.D. California DELAVAL INC: Triple S Farms Sues Over V300's Concealed Defects DELAWARE: Light Suit Challenges Delaware Unclaimed Property Statute DROPBOX INC: Faces Securities Class Action in California EPIC HEALTH: Dismissal of Vickers' Liability Claims Upheld in Part FIRST HIGH-SCHOOL: Bragar Eagel Investigates Securities Claims HANNAH FORREST: Fails to Pay Farmworkers, Martinez-Morales Alleges HATCH HAVEN: Fails to Pay Overtime Wages, Flores Suit Claims HOMETOWN AMERICA: Sept. 13 Final Settlement Approval Hearing Set HYUNDAI MOTOR: Files Motion to Dismiss ABS Module Class Action INNOVATIVE INDUSTRIAL: Vincent Wong Reminds of June 24 Deadline IONQ INC: Bragar Eagel Discloses Securities Class Action Lawsuit IRONNET INC: Robbins Geller Reminds of June 21 Deadline ISRAEL: Settles Class Action Over Pension Tax Payments JERRY INSURANCE: Hooper FTSA Suit Removed to M.D. Florida JOHNSON & JOHNSON: Edley Sues Over Concealment, Evidence Spoliation JOHNSON & JOHNSON: HealthyLiving Suit Removed to D. Columbia KAISER ALUMINUM: Fails to Pay Overtime Wages, Woodruff Suit Says L&L SUPPLIES: Hua Jing Go Sues Over Unpaid Wages for Receptionists LEPRINO FOODS: Loses Bid for Class Decertification in Vasquez Suit LILIUM NV: Vincent Wong Reminds Investors of June 17 Deadline LIVE NATION: Scott Among Defendants in Astroworld Class Action LTL MANAGEMENT: Court Enjoins Securities Suit Trial in SDCERA Suit MANDIANT INC: Misleads Stockholders to Approve Merger, White Says MARRIOTT INT'L: Moledina Sues Over Illegal Conversations' Recording MARRIOTT INTERNATIONAL: Brown Seeks Blind's Online Store Access MATCHABAR INC: Abreu Files ADA Suit in S.D. New York MAURICE BADLER: Picon Files ADA Suit in S.D. New York MEDSCAN LABORATORY: Ristine Files Suit in D. North Dakota MERCHANDISING SOLUTIONS: Faces Rodwell FLSA Suit in W.D.N.C. MERCURY AIR: Fierro PAGA Suit Alleges Unpaid Wages in California MI CASA: Faces Pardini Suit Over Failure to Properly Pay Overtime MISAHARA JEWELRY: Picon Files ADA Suit in S.D. New York NATERA INC: Kessler Topaz Files Securities Class Action in Texas NATERA INC: Vincent Wong Reminds of June 27 Deadline NATIONAL COLLEGIATE STUDENT: Browne Suit Removed to D. New Jersey NEIMAN MARCUS: Zaimi Suit Removed to C.D. California NELSON LEWIS: Preece Sues Over Bore Crew Workers' Unpaid Overtime NESTLE PURINA: Court Dismisses in Part Barker's 1st Amended Suit NEW HARVEST COFFEE: Abreu Files ADA Suit in S.D. New York NHS MANAGEMENT: Griggs Files Suit in N.D. Alabama NOSWEAT PERFORMANCE: Abreu Files ADA Suit in S.D. New York NYS OFFICE OF INFORMATION: Stiegman Appeals Case Dismissal ORANSI LLC: Mejia Files ADA Suit in S.D. New York OTTE MANHATTAN: Hanyzkiewicz Files ADA Suit in E.D. New York PARACHUTE HOME: Luis Files ADA Suit in S.D. New York PARTNERSHIP HEALTHPLAN: Class Action Suit Filed After Data Hack PENNSYLVANIA: Court Sustains Prelim. Objections in Chester Suit PERFECT BAR: Faces False Advertising Class Action in California PNC FINANCIAL SERVICES: Hobbs Files ADA Suit in S.D. New York RAIN ALBANY: Faces Xue Fang Huang Wage-and-Hour Suit in N.D.N.Y. RALPHS GROCERY: Johnson BIPA Suit Removed to N.D. Illinois RICHLAND COUNTY, OH: Attorney Appointed for Opioid Suit Settlement RIPPLE FOODS: Feliz Files ADA Suit in S.D. New York RIVERSIDE COUNTY, CA: Faces Wilkins FLSA Suit in C.D. California RIVIANA FOODS: Kutzback Wins Bid to Certify Collective Action RODD & GUNN USA: Iskhakova Files ADA Suit in E.D. New York ROGER CLEVELAND: Abreu Files ADA Suit in S.D. New York ROKIT INC: Fails to Pay Proper Wages, Guffey Suit Alleges ROWDY BEVERAGE: Abreu Files ADA Suit in S.D. New York RUST-OLEUM CORP: Faces Class Suit Over RainBrella False Advertising SAINT NINE AMERICA: Abreu Files ADA Suit in S.D. New York SCRAPPY THOMAS: Underpays Scrap Metal Workers, Medders Claims SD BIOSENSOR: Cenci Sues Over Sale of Unapproved COVID-19 Tests SIGNATURE FLIGHT: Herrera Labor Suit Removed to C.D. California SMITH JEWELERS: Picon Files ADA Suit in S.D. New York SPRING FOOTWEAR: Mejia Files ADA Suit in S.D. New York SPUN BAMBOO: Abreu Files ADA Suit in S.D. New York STATE FARM: District of Arizona Certifies Class in McClure Suit STELLATO ENTERPRISES: Abreu Files ADA Suit in S.D. New York SULPHUR SPRINGS: Underpays Occupational Therapists, Fetters Says SUN VALLEY: Cross-Complaint v. Pineda, Becerra, Brower & Su Tossed SUPERIOR HOTEL: Faces Davis FLSA Suit in W.D. Arkansas SYRACUSE UNIVERSITY: Settles Gender Pay Inequity Class Action TALBOTS INC: Dawkins Files ADA Suit in E.D. New York TASTES ON THE FLY: Chowdhury Files Suit Over Alleged Tip Skimming TECHNIQUE GOLF: Abreu Files ADA Suit in S.D. New York TEKSYSTEMS INC: Avery Wage-and-Hour Suit Goes to N.D. California TESLA INC: Talley Wage-and-Hour Suit Removed to C.D. California THATS EPIC: Abreu Files ADA Suit in S.D. New York TIMILON CORPORATION: Mejia Files ADA Suit in S.D. New York TOUR EDGE: Abreu Files ADA Suit in S.D. New York TRUEACCORD CORP: Spira Files FDCPA Suit in E.D. New York TWITTER INC: Former Pres. Donald Trump's Censorship Suit Dismissed TWITTER INC: Orlando Police Balks Over Musk's Proposed Takeover UNDER ARMOUR: Fails to Pay Proper Wages, Cardenas Suit Alleges UNITED STATES: Court Narrows Claims in Medrano v. Prisons Bureau URBN US RETAIL: Dawkins Seeks Blind's Equal Access to Website VEON LTD: Rosen Law Named Lead Counsel in Securities Class Suit VES GROUP: Underpays Quality Analysts, Grant Class Action Alleges VICTORY PROFESSIONAL: Mejia Files ADA Suit in S.D. New York VOLVIK USA: Abreu Files ADA Suit in S.D. New York WASHINGTON: Judge Dismisses Long-Term Cares Act Class Action WATA INC: Knight Suit Alleges Video Game Market Manipulation WEC ENERGY: Munt et al. File Suit Over Insurance Plan Losses WELLS FARGO: Wins Dismissal of Shareholder Class Action Lawsuit WHITE WATER GEAR: Abreu Files ADA Suit in S.D. New York WONOLO INC: Turner Challenges Criminal History Screening Policies WOOJER USA: Abreu Files ADA Suit in S.D. New York ZERO FRICTION: Abreu Files ADA Suit in S.D. New York [*] Wilson Elser Attorneys Discuss Rulings in BIPA Class Lawsuits ********* 3M COMPANY: Pelachik Suit Claims Complications From AFFF Products ----------------------------------------------------------------- DAVID PELACHIK, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC; KIDDE FIRE FIGHTING, INC; KIDDE PLC INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100, inclusive, Defendants, Case No. 2:22-cv-01491-RMG (D.S.C., May 10, 2022) is a class action against the Defendants for negligence/gross negligence, strict liability, defective design, failure to warn, fraudulent concealment, medical monitoring trust, and violation of the Uniform Voidable Transactions Act. According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and military members, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. The Plaintiff relied on the Defendants' instructions as to the proper handling of the products. As a result of the Defendants' alleged omissions and misconduct, the Plaintiff was diagnosed with kidney cancer and commenced on-going medical treatment inclusive of surgical intervention via partial right nephrectomy. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwall, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde Fire Fighting, Inc. is a manufacturer of fire safety products based in Mebane, North Carolina. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. The Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. UTC Fire & Security America's Inc. is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Jeremy C. Shafer, Esq. VETERAN LEGAL GROUP 700 12th Street N.W., Suite 700 Washington, DC 20005 Telephone: (888) 215-7834 E-mail: jshafer@bannerlegal.com - and – S. James Boumil, Esq. BOUMIL LAW OFFICES 120 Fairmount Street Lowell, MA, 01852 Telephone: (978) 458-0507 E-mail: sjboumil@boumil-law.com - and – Konstantine Kyros, Esq. KYROS LAW 17 Miles Rd. Hingham, MA 02043 Telephone: (800) 934-2921 E-mail: kon@kyroslaw.com ACCOLADE INC: Schall Law Firm Investigates Securities Claims ------------------------------------------------------------ The Schall Law Firm, a national shareholder rights litigation firm, on April 30 disclosed that it is investigating claims on behalf of investors of Accolade, Inc. ("Accolade" or "the Company") (NASDAQ: ACCD) for violations of the securities laws. The investigation focuses on whether the Company issued false and/or misleading statements and/or failed to disclose information pertinent to investors. Accolade released its quarterly financial results on April 28, 2022. As part of its release, the Company admitted that "a large customer notified us that they would be ending their service relationship with us after the end of calendar 2022." The Company revealed during its earnings call that the major customer was Comcast, one of its oldest customers. The Company also reported steep losses for the quarter, missing analyst estimates. Based on this news, shares of Accolade fell by almost 50% on April 29, 2022. We also encourage you to contact Brian Schall of the Schall Law Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at bschall@schallfirm.com. The class in this case has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. Contacts The Schall Law Firm Brian Schall, Esq. 310-301-3335 info@schallfirm.com www.schallfirm.com [GN] ACUSHNET CO: Court Refuses to Remand Garcia's Unpaid Wages Suit --------------------------------------------------------------- In the case, BLANCA GARCIA and MATILDE CABRERA, on behalf of themselves and others similarly situated, Plaintiffs v. ACUSHNET COMPANY; and DOES 1 to 100, inclusive, Defendant, Case No. 3:21-cv-01581-BEN-BGS (S.D. Cal.), Judge Roger T. Benitez of the U.S. District Court for the Southern District of California denies the Plaintiffs' Motion to Remand and Request for Attorneys' Fees. I. Background Plaintiffs Garcia and Cabrera, on behalf of themselves and others similarly situated bring the employment action against Defendant Acushnet. The crux of the Complaint is that the Defendant's employees were required to travel three to five minutes every day between entering the premises and clocking in and again when exiting the premises and clocking out. The Plaintiffs allege they were not compensated for this time. They make the same allegations with respect to employees traveling to and from the designated meal and break area, claiming that up to ten minutes of their daily meal breaks and rest periods were spent traveling. Because of the time spent traveling to the meal and break area on the worksite, the Plaintiffs allege their breaks fell short of what is required under California law. Specifically, the Plaintiffs allege the following eight claims for relief: (1) Failure to Pay Wages for All Hours Worked at Minimum Wage in Violation of Labor Code section 1194 and 1197; (2) Failure to Pay Overtime Wages for Daily Overtime Worked in Violation of Labor Code section 510 and 1194; (3) Failure to Authorize or Permit Meal Periods in Violation of Labor Code section 512 and 226.7; (4) Failure to Authorize or Permit Rest Periods in Violation of Labor Code section 226.7; (5) Failure to Timely Pay Earned Wages During Employment in Violation of Labor Code section 204; (6) Failure to Provide Complete and Accurate Wage Statements in Violation of Labor Code section 226; (7) Failure to Timely Pay All Earned Wages and Final Paychecks Due at Time of Separation of Employment in Violation of Labor Code sections 201, 202, and 203; and (8) Unfair Business Practices, in Violation of California's Business and Professions Code sections 17200, et seq. As the basis for these eight claims for relief, the Plaintiffs allege Defendant "maintained a policy, practice, and/or procedure of failing to include bonus pay" with respect to their claims regarding overtime pay, meal periods, and rest periods. They further allege the Defendant's policies, practices, and/or procedures prevented them from being paid all wages for the time they worked. Additionally, the Complaint maintains the Defendant's policies, practices, and/or procedures resulted in its failure to: (1) timely pay wages; (2) provide complete and accurate wage statements; (3) timely pay at the time of separation; and (4) adhere to California's Business & Professions Code section 17200, et seq. When describing the Defendant's alleged "policies, practices, and/or procedures," the Plaintiffs claim that employees were required to travel "every day" to a designated clock-in location without being compensated. They make the same allegations with respect to employees traveling to the designated meal and break area resulting in their breaks falling short of what is required. On July 7, 2021, the Plaintiffs commenced this civil action against Defendant in San Diego County Superior Court, captioned Blanca Garcia, et al. v. Acushnet Company, et al., Case No. 37-2021-00029094-CU-OE-CTL. On Sept. 8, 2021, the Defendant removed the Complaint to the Court based on diversity of citizenship and pursuant to the Class Action Fairness Act ("CAFA"). On Oct. 8, 2021, the Plaintiffs filed the instant Motion to Remand. II. Discussion The Plaintiffs do not dispute that diversity of citizenship exists, or that the minimum number of class members exceeds 100. Instead, they challenge the amount in controversy asserting that it does not exceed $5 million. They also request attorneys' fees in the amount of $5,775. A. Amount in Controversy The Defendant retorts that the Plaintiffs fail to present any evidence proving the amount in controversy is less than $5 million. Judge Benitez accepts the Defendant's argument and finds it reasonable to assume a 100 percent violation rate, because the Plaintiffs allege employees were required to travel to a designated location "every day," and the physical layout of the facility could not be altered day-to-day. Aside from the 100 percent violation rate, the Plaintiffs do not challenge the underlying numbers the Defendant provides as evidence. Although the Plaintiffs are not required to submit evidence or alternative violation rates, the only evidence available to the Court weighs in favor of removal. Because the Defendant has met its burden of establishing that it relied on reasonable assumptions in alleging the amount in controversy, Judge Benitez need not conduct an in-depth analysis of the calculations and accepts the Defendant's evidence supporting the $11,547,287.90 sum. Therefore, he finds the amount in controversy exceeds $5 million. Accordingly, he denies the Plaintiffs' Motion to Remand. B. Attorneys' Fees The Plaintiffs' Motion to Remand seeks attorneys' fees in the amount of $5,775. Because Judge Benitez denies the Plaintiffs' Motion to Remand, the Plaintiffs' request for attorneys' fees is also denied. III. Conclusion For these reasons, Judge Benitez denies the Plaintiffs' Motion to Remand and Request for Attorneys' Fees. A full-text copy of the Court's April 29, 2022 Order is available at https://tinyurl.com/2xcesv4w from Leagle.com. ALBERTSONS COMPANIES: Web Site Inaccessible to Blind, Mahoney Says ------------------------------------------------------------------ JOHN MAHONEY, individually and on behalf of all others similarly situated, Plaintiff v. ALBERTSONS COMPANIES (DELAWARE), INC., Defendants, Case No. 2:22-cv-01783-MMB (E.D. Pa., May 9, 2022) alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Web site, https://local.acmemarkets.com/pa/horsham/200-blair-mill-rd.html, is not fully or equally accessible to blind and visually-impaired consumers, including the Plaintiff, in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. ALBERTSONS COMPANIES (DELAWARE), INC. is primarily in the business of retail-grocery stores. [BN] The Plaintiff is represented by: David S. Glanzberg, Esq. GLANZBERG TOBIA LAW, P.C. 123 South Broad Street, Suite 1640 Philadelphia, PA 19109 Tel: (215) 981-5400 Fax: (267) 319-1993 Email: david.glanzberg@gtlaw AMAZON.COM INC: Faces Joyce Securities Suit Over Stock Price Drop ----------------------------------------------------------------- SONNY JOYCE, Individually and On Behalf of All Others Similarly Situated, v. AMAZON.COM, INC., ANDREW R. JASSY, JEFFREY P. BEZOS, BRIAN T. OLSAVKSY, DAVID A. ZAPOLSKY, and NATE SUTTON, Case No. 2:22-cv-00617 (W.D. Wash., May 6, 2022) is a federal securities class action on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Amazon stock between February 1, 2019 and April 5, 2022, both dates inclusive, pursuing claims against the Defendants under the Securities Exchange Act of 1934. On the Company's Amazon.com e-commerce platform, Amazon sells both third-party merchandise and Amazon's own private-label products. As the owner and operator of the Amazon.com e-commerce platform, Amazon has access to certain non-public data of the third-party sellers that use the Amazon.com platform. On June 3, 2019, the U.S. House Committee on the Judiciary (the "House Judiciary Committee") initiated a bipartisan investigation into the state of competition online. The investigation, led by the Subcommittee on Antitrust, Commercial and Administrative Law (the "Subcommittee"), examined the business practices and market dominance of Facebook, Google, Apple, and, of particular relevance, Amazon (the "Subcommittee Investigation"). In the course of the Subcommittee Investigation, the Subcommittee held several oversight hearings in which various officers of the above referenced companies, including their respective Chief Executive Officers ("CEOs"), offered witness testimony on topics such as the effect of market power on the press, innovation, and privacy, and the market dominance of the firms under investigation. After each of the hearings, members of the Subcommittee submitted questions for the record to the witnesses. Throughout the Class Period, the Defendants allegedly made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose that Amazon engaged in anticompetitive conduct in its private-label business practices, including giving Amazon products preference over those of its competitors and using third-party sellers' non-public data to compete with them. On March 9, 2022, media outlets reported that the House Judiciary Committee had requested that the U.S. Department of Justice ("DOJ") open a criminal investigation into Amazon and certain of its executives for allegedly lying to Congress about its business practices during the course of the Subcommittee Investigation. In response, Amazon asserted that there was "no factual basis" for the House Judiciary Committee's allegations. Then, on April 6, 2022, The Wall Street Journal published an article entitled "SEC Is Investigating How Amazon Disclosed Business Practices." The article reported, inter alia, that the SEC's probe has been underway for more than a year and focuses on Amazon's disclosures regarding its use of third-party seller data for its own private-label business. On this news, Amazon's stock price fell $105.98 per share, or 3.2%, to close at $3,175.12 per share on April 6, 2022. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of Amazon's stock, the Plaintiff and other Class members have suffered significant losses and damages. The Plaintiff purchased or otherwise acquired Amazon common stock at artificially inflated prices 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. Amazon is a multinational technology company that engages primarily in the businesses of e-commerce, cloud computing, digital streaming, and artificial intelligence. The Company was founded in 1994 and is headquartered in Seattle, Washington. Amazon's common shares trade on the NASDAQ under the ticker symbol "AMZN". The Individual Defendants are officers of the company.[BN] The Plaintiff is represented by: Duncan C. Turner, Esq. BADGLEY MULLINS TURNER PLLC 19929 Ballinger Way NE, Suite 200 Seattle, WA 98155 Telephone: (206) 621-6566 E-mail: dturner@badgleymullins.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Jennifer Pafiti, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jpafiti@pomlaw.com AMAZON.COM INC: Pomerantz Law Discloses July 5 Deadline ------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Amazon.com, Inc. ("Amazon" or the "Company") (NASDAQ: AMZN) and certain of its officers. The class action, filed in the United States District Court for the Western District of Washington, Seattle Division, and docketed under 22-cv-00617, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired If you are a shareholder who purchased or otherwise acquired Amazon securities during the Class Period, you have until July 5, 2022 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Amazon is a multinational technology company that engages primarily in the businesses of e-commerce, cloud computing, digital streaming, and artificial intelligence. On the Company's Amazon.com e-commerce platform, Amazon sells both third-party merchandise and Amazon's own private-label products. As the owner and operator of the Amazon.com e-commerce platform, Amazon has access to certain non-public data of the third-party sellers that use the Amazon.com platform. On or around June 3, 2019, the U.S. House Committee on the Judiciary initiated a bipartisan investigation into the state of competition online. The investigation, led by the Subcommittee on Antitrust, Commercial and Administrative Law (the "Subcommittee"), examined the business practices and market dominance of Facebook, Google, Apple, and, of particular relevance, Amazon (the "Subcommittee Investigation"). In the course of the Subcommittee Investigation, the Subcommittee held several oversight hearings in which various officers of the above referenced companies, including their respective Chief Executive Officers, offered witness testimony on topics such as the effect of market power on the press, innovation, and privacy, and the market dominance of the firms under investigation. After each of the hearings, members of the Subcommittee submitted questions for the record to the witnesses. The complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Amazon engaged in anticompetitive conduct in its private-label business practices, including giving Amazon products preference over those of its competitors and using third-party sellers' non-public data to compete with them; (ii) the foregoing exposed Amazon to a heightened risk of regulatory scrutiny and/or enforcement actions; (iii) Amazon's revenues derived from its private-label business were in part the product of impermissible conduct and thus unsustainable; and (iv) as a result, the Defendants' public statements throughout the Class Period were materially false and/or misleading. On March 9, 2022, media outlets reported that the House Judiciary Committee had requested that the U.S. Department of Justice open a criminal investigation into Amazon and certain of its executives for allegedly lying to Congress about its business practices during the course of the Subcommittee Investigation. In response, Amazon asserted that there was "no factual basis" for the House Judiciary Committee's allegations. Then, on April 6, 2022, The Wall Street Journal published an article entitled "SEC Is Investigating How Amazon Disclosed Business Practices." The article reported, inter alia, that the SEC's probe has been underway for more than a year and focuses on Amazon's disclosures regarding its use of third-party seller data for its own private-label business. On this news, Amazon's stock price fell $105.98 per share, or 3.2%, to close at $3,175.12 per share on April 6, 2022. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomlaw.com.[GN] ANAPLAN INC: Monteverde & Associates Continues Probe ---------------------------------------------------- Juan Monteverde, founder and managing partner of the class action firm Monteverde & Associates PC (the "M&A Class Action Firm"), a national securities firm rated Top 50 in the 2018-2021 ISS Securities Class Action Services Report and headquartered at the Empire State Building in New York City, is investigating Anaplan, Inc., relating to its proposed acquisition by Thoma Bravo. Under the terms of the agreement, PLAN shareholders will receive $66.00 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/anaplan-inc. It is free and there is no cost or obligation to you. Monteverde & Associates PC, Friday, May 6, 2022, Press release picture About Monteverde & Associates PC Did the current market drop catch you flat-footed? Don't let it happen again! Chief Market Strategist, Matt Maley is helping traders guide the markets for success. Click Here to Sign Up for His Starter Newsletter! We are a national class action securities litigation law firm that has recovered millions of dollars and is committed to protecting shareholders from corporate wrongdoing. We were listed in the Top 50 in the 2018-2021 ISS Securities Class Action Services Report. Our lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions. Mr. Monteverde is recognized by Super Lawyers as a Rising Star in Securities Litigation in 2013, 2017-2019, an award given to less than 2.5% of attorneys in a particular field. He has also been selected by Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's recent successes include changing the law in a significant victory that lowered the standard of liability under Section 14(e) of the Exchange Act in the Ninth Circuit. Thereafter, our firm successfully preserved this victory by obtaining dismissal of a writ of certiorari as improvidently granted at the United States Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019). Also, in 2019 we recovered or secured six cash common funds for shareholders in mergers & acquisitions class action cases. If you own common stock in PLAN and wish to obtain additional information and protect your investments free of charge, please visit our website or contact Juan E. Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com or by telephone at (212) 971-1341. [GN] APHRIA INC: Securities Suit Granted Class Certification in S.D.N.Y. ------------------------------------------------------------------- The Southern District of New York issued an order granting the plaintiffs' motion for class action in the case of In re Aphria, Inc. Securities Regulation. The order certified the class as shareholders who purchased Aphria Inc. securities between July 17, 2018 and April 12, 2019. The plaintiffs' memorandum in support of class certification states that each member of the class suffered damages when they purchased Aphira stock at artificially inflated prices due to Aphira's misrepresentation about the acquisition of a series of assets for $193 million (LATAM Assets). The memorandum states that Aphira was a Canadian cannabis company that sought to drive value for shareholders through international expansion. The plaintiffs state that Aphira purported that the LATAM Assets were cannabis businesses across Latin America and the Caribbean that would grow Aphira's international presence and provide value to shareholders. However, the memorandum states that on December 3, 2018, Hindenburg Research and Quintessential Capital Management issued a report with conclusive evidence that the LATAM Assets were not what Aphira represented, and the assets were barely operational, and in some cases, not even licensed to do the business. Following the report, Aphira's stock plummeted to $4.51 per share from a previous closing price of $7.90 representing a total market capitalization loss of more than $220 million. The Memorandum further states that on February 15, 2019, a Special Committee created by Aphira's board of directors announced that an investigation revealed that several Aphira insiders had a conflict of interest in the LATAM Assets acquisition that was not reported resulting in another stock plummet resulting in an additional $97.5 million market capitalization loss. The plaintiffs argue that their claims and damages are identical in nature making the lawsuit particularly suited for class action treatment. In the court's order, Judge George Daniels granted the plaintiffs' motion, certified the class and appointed Levi & Korinsky, LLP as class counsel after considering the plaintiffs' memorandum and receiving no opposition to the motion. Aphira is represented by Quinn Emanuel Urquhart & Sullivan, LLP and Latham & Watkins, LLP.[GN] ARCARE: Hale Sues Over Failure to Safeguard Personal Information ---------------------------------------------------------------- The case, GREG HALE, on behalf of himself and all others similarly situated, Plaintiff v. ARCARE, Defendant, Case No. 3:22-cv-00117-BSM (E.D. Ark., May 10, 2022) arises from the Defendant’s alleged failure to properly and adequately secure and safeguard personally identifiable information (PII) and medical diagnosis or condition information and health insurance information (PHI) which violated the Federal Trade Commission Act (FTC Act). On February 24, 2022, the Defendant has experienced a data security incident that impacted its computer systems and caused a temporary disruption to services. According to the result of the Defendant’s investigation of the incident on March 14, 2022, an unauthorized actor may have accessed and/or acquired sensitive data during a period of unauthorized access to the Defendant’s computer systems between January 18 and February 24, 2022. Accordingly, at least the following sensitive information was compromised: Social Security numbers, driver’s license or state identification numbers, dates of birth, financial account information, medical treatment information, prescription information, medical diagnosis or condition information, and health insurance information, says the suit. The Plaintiff and other similarly situated individuals, who have directly entrusted the Defendant with their sensitive and confidential information, allege the Defendant of the following: -- negligence by failing to safeguard their PII and PHI; -- breach of implied contract by failing to safeguard and protect their information as agreed, and by failing to timely and accurately notify them if their data has been breached and compromised or stolen; -- breach of fiduciary duty by failing to protect the integrity of its systems containing his and other similarly situated individuals’ PII and personal health information; and -- unjust enrichment by saving the costs they reasonably should have expended on data security measures to secure their PII and PHI. Arcare is a healthcare network throughout Arkansas, Kentucky and Mississippi. [BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Parkway, Suite 510 Little Rock, AR 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 E-mail: josh@sanfordlawfirm.com -and- Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 227 W. Monroe St., Suite 2100 Chicago, IL 60606 Tel: (866) 252-0878 E-mail: gklinger@milberg.com -and- Bryan L. Bleicher, Esq. CHESTNUT CAMBRONNE PA 100 Washington Ave. South, Suite 1700 Minneapolis, MN 55401 Tel: (612) 339-7300 Fax: (612) 336-2940 E-mail: bbleichner@chestnutcambrone.com ARIZONA BEVERAGES: Campbell Sues Over Mislabeled Snack Products --------------------------------------------------------------- MARCIA CAMPBELL, individually, and on behalf of all others similarly situated, Plaintiff v. ARIZONA BEVERAGES USA LLC; and HORNELL BREWING CO., INC., Defendants, Case No. 1:22-cv-02752-RMI (N.D. Cal., May 9, 2022) is a class action arising from the Defendants' deceptive and misleading practices with respect to its marketing and sale of their fruit snack products (the "Products"). According to the complaint, the Defendants manufacture, sell, and distribute the Products using a marketing and advertising campaign focused on claims that appeal to health-conscious consumers - specifically the importance of real fruit and its presence in the Products. The Defendants engage in a deceptive marketing campaign to convince consumers that the Products contain significant amounts of the actual fruits shown in the marketing and on the labeling of the Products, they are nutritious and healthful to consume, and are more healthful than similar products. The deception lies in the fact that the Products are devoid of real fruit. Rather than containing real fruit, the Products are packed with sugar. The Defendants' Products contain sugar levels comparable to candy and none of the vibrantly depicted fruits, says the suit. The Plaintiff and the Class would not have purchased the Products if they had known that the Products did not contain real fruit in significant amounts and were actually devoid of real fruit. ARIZONA BEVERAGES USA LLC was founded in 2010. The Company's line of business includes the wholesale distribution of groceries and related products. [BN] The Plaintiff is represented by: Christopher T. Aumais, Esq. GOOD GUSTAFSON AUMAIS LLP 2330 Westwood Blvd., No. 103 Los Angeles, CA 90064 Tel: (310) 274-4663 Email: cta@ggallp.com -and- Steffan T. Keeton, Esq. THE KEETON FIRM LLC 100 S Commons, Ste 102 Pittsburgh PA 15212 Tel: (888) 412-5291 Email: stkeeton@keetonfirm.com ARQIT QUANTUM: Faces Glick Securities Suit Over Share Price Drop ---------------------------------------------------------------- ROBERT GLICK, Individually and on behalf of all others similarly situated v. ARQIT QUANTUM INC. F/K/A CENTRICUS ACQUISITION CORP., DAVID WILLIAMS, NICK POINTON, CARLO CALABRIA, STEPHEN CHANDLER, MANFREDI LEFEBVRE D'OVIDIO, VERALINN JAMIESON, GARTH RITCHIE, AND STEPHEN WILSON, Case No. 1:22-cv-02604 (E.D.N.Y., May 6, 2022) is a class action on behalf of: (i) all persons or entities who purchased or otherwise acquired Arqit securities between September 7, 2021 and April 18, 2022, inclusive; and/or (ii) all holders of Centricus securities as of the record date for the special meeting of shareholders held on August 31, 2021 to consider approval of the merger between Arqit and Centricus (the "Merger") and entitled to vote on the Merger, seeking to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. On April 18, 2022, The Wall Street Journal published an article titled, "British Encryption Startup Arqit Overstates Its Prospects, Former Staff and Others Say." The WSJ article stated, in relevant part: When the company secured its Nasdaq listing last autumn, its revenue consisted of a handful of government grants and small research contracts, and its signature product was an early-stage prototype unable to encrypt anything in practical use, according to [former employees and other people familiar with the company]. The encryption technology the company hinges on -- a system to protect against next-generation quantum computers— might never apply beyond niche uses, numerous people inside and outside the company warned, unless there were a major overhaul of internet protocols. On this news, Arqit share price fell $2.57 per share, or 17%, to close at $12.49 per share on April 18, 2022, damaging investors. As a result of the Defendants' alleged wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages. The Plaintiff purchased Arqit securities during the Class Period and was economically damaged thereby. Arqit is purportedly a cybersecurity company that has pioneered a unique quantum encryption technology. The Individual Defendants officers of the company. Centricus was a special purpose acquisition corporation formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, or similar business combination with one or more businesses. Prior to the Merger, Centricus shares traded on the NASDAQ under the ticker symbol "CENHU." [BN] The Plaintiff is represented by: Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Ave., 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com ASTER HEALTH: Fails to Pay Caregivers' Minimum Wages, Nweke Alleges ------------------------------------------------------------------- INE NWEKE, Individually and on Behalf of All Others Similarly Situated v. ASTER HEALTH GROUP, INC., and KELLY GILBERT, Case No. 1:22-cv-02410 (N.D. Ill., May 6, 2022) is a collective action against the Defendants for violations of the Fair Labor Standards Act, the minimum wage provisions of the Illinois Minimum Wage Law, and the payment provisions of the Illinois Wage Payment and Collection Act. The Plaintiff seeks declaratory judgment, monetary damages, liquidated, costs, and a reasonable attorneys’ fee, as a result of Defendants' policy and practice of failing to pay the Plaintiff and others similarly situated sufficient wages under the FLSA and the IMWL within the applicable statutory limitations period. The Defendants do business as Visiting Angels or Visiting Angels of Chicago. The Defendant directly hired the Plaintiff and other Caregivers to work on its behalf, controlled their work schedules, duties, protocols, applications, assignments and employment conditions, and kept at least some records regarding their employment. The Defendant did not pay Plaintiff an hourly or salary rate, the lawsuit says. Aster Health is a home health agency in Evanston, llinois.[BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com AURINIA PHARMA: Timothy L. Miles Reminds of June 14 Deadline ------------------------------------------------------------ The Law Offices of Timothy L. Miles, who has been leading the fight to protect shareholder rights for over 20 years, announces that a purchaser of Aurinia Pharmaceuticals Inc. (NASDAQ: AUPH) filed a class action complaint against the Company for alleged violations of the Securities Exchange Act of 1934. The Aurinia class action lawsuit seeks to represent purchasers of Aurinia Pharmaceuticals Inc. (NASDAQ: AUPH) securities between May 7, 2021 and February 25, 2022 inclusive (the"Class Period"). Commenced on April 15, 2022, the Aurinia class action lawsuit – captioned Ortmann v. Aurinia Pharmaceuticals Inc., No. 22-cv-02185 (E.D.N.Y.) – charges Aurinia and certain of its top executive officers with violations of the Securities Exchange Act of 1934. Aurinia Accused of Misleading Shareholders Aurinia is a biopharmaceutical company that develops and commercializes therapies to treat various diseases with unmet medical need in Japan and China. Aurinia's only product is LUPKYNIS, which it offers for the treatment of adult patients with active lupus nephritis. The Aurinia class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) Aurinia was experiencing declining revenues; (ii) Aurinia's 2022 sales outlook for LUPKYNIS would fall well short of expectations; (iii) accordingly, Aurinia had significantly overstated LUPKYNIS' commercial prospects; (iv) as a result, Aurinia had overstated its financial position and/or prospects for 2022; and (v) thus, Aurinia's public statements were materially false and misleading at all relevant times. On February 28, 2022, Aurinia issued a press release announcing its financial results for the quarter and full year ended December 31, 2021. Among other items, Aurinia reported a year-over-year revenue decline and announced a lower-than-expected sales outlook for 2022. On this news, Aurinia's common share price fell by more than 24%, damaging investors. Lead plaintiff motions for the Aurinia class action lawsuit must be filed with the court no later than June 14, 2022. Aurinia Shareholders Urged to Contact the Firm If you purchased Aurinia securities, have information, or have any questions concerning this announcement or your rights or interests with respect to these matters, please click here or contact Timothy L. Miles, Esquire, at 615-587-7384, Toll-Free at 855-846-6529, or by email to . If you inquire by email please include your mailing address, telephone number, and the number shares owned. About Timothy L. Miles Timothy L. Miles is a nationally recognized shareholder rights attorney raised in Nashville, Tennessee. Mr. Miles was recentely selected by Martindale-Hubbell(R) and ALM as a 2020 Top Ranked Lawyer and a 2020 Top Rated Litigator. Mr. Miles also maintains the AV Preeminent Rating by Martindale-Hubbell(R), their highest rating for both legal ability and ethics. Mr. Miles is a member of the prestigious Top 100 Civil Plaintiff Trial Lawyers: The National Trial Lawyers Association, a superb rated attorney by Avvo, a recipient of the Lifetime Achievement Award by Premier Lawyers of America (2019) and recognized as a Distinguished Lawyer, Recognizing Excellence in Securities Law, by Lawyers of Distinction (2019). Awards: Top Rated Litigator by Martindale-Hubbell(R) and ALM (2019); 2019 Elite Lawyer of The South by Martindale-Hubbell(R) and ALM (2019); Member of the Top 100 Civil Plaintiff Trial Lawyers: The National Trial Lawyers Association (2017-2019); AV(R) Preeminent™ Rating by Martindale-Hubble(R) (2014-2020); PRR AV Preeminent Rating on Lawyers.com (2017 & 2019); The Top-Rated Lawyer in Litigation™ for Ethical Standards and Legal Ability (Martindale-Hubble(R) 2015); Lifetime Achievement Award by Premier Lawyers of America (2019); Superb Rated Attorney (Avvo); Avvo Top Rated Lawyer for (Avvo 2017-2020). Mr. Miles has authored numerous publications advocating for shareholdings including most recently: Free Portfolio Monitoring Services Offered by Plaintiff Securities Firms Provides Significant Benefits To Investors (Timothy L. Miles, Dec. 3, 2019). Contact: Timothy L. Miles, Esq. Law Offices of Timothy L. Miles 124 Shiloh Ridge Hendersonville, TN 37075 Telephone: (855-846-6529) Email: Website: SOURCE: The Law Offices of Timothy L. Miles Timothy Lee. Miles Law Offices Of Timothy L. Miles +1 6155877384 [GN] BAKKT HOLDINGS: Pomerantz LLP Reminds of June 20 Deadline --------------------------------------------------------- Pomerantz LLP on April 30 disclosed that a class action lawsuit has been filed against Bakkt Holdings, Inc. ("Bakkt" or the "Company") f/k/a VPC Impact Acquisition Holdings ("VIH") (NYSE: BKKT) (NYSE: BKKT.WS) (NASDAQ: VIHAU) (NASDAQ: VIH) (NASDAQ: VIHAW) and certain of its former officers and directors. The class action, filed in the United States District Court for the Eastern District of New York and docketed under 22-cv-02283, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired: (a) Bakkt securities between March 31, 2021 and November 19, 2021, both dates inclusive (the "Class Period"); and/or (b) Bakkt Class A common stock pursuant and/or traceable to the Offering Documents issued in connection with the business combination between the Company and Bakkt Holdings, LLC ("Legacy Bakkt") completed on or about October 15, 2021 (the "Business Combination"). Plaintiff pursues claims against the Defendants under the Securities Act of 1933 (the "Securities Act") and the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who purchased or otherwise acquired Bakkt securities during the Class Period, or Bakkt Class A common stock pursuant and/or traceable to the Offering Documents issued in connection with the Business Combination (defined above), you have until June 20, 2022 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Bakkt was formerly known as "VPC Impact Acquisition Holdings" and operated as a special purpose acquisition company (SPAC), also called a blank-check company, which is a development stage company that has no specific business plan or purpose or has indicated its business plan is to engage in a merger or acquisition with an unidentified company or companies, other entity, or person. On January 11, 2021, the Company and Legacy Bakkt announced entry into a definitive agreement for the Business Combination that would result in Legacy Bakkt becoming a publicly traded company with an enterprise value of approximately $2.1 billion. On March 31, 2021, the Company filed a registration statement on Form S-4 with the U.S Securities and Exchange Commission ("SEC") in connection with the Business Combination, which, after several amendments, was declared effective by the SEC on September 17, 2021 (the "Registration Statement"). Also on September 17, 2021, the Company filed a proxy statement and prospectus on Form 424B3 with the SEC in connection with the Business Combination, which formed part of the Registration Statement (the "Proxy" and, together with the Registration Statement, the "Offering Documents"). On or about October 15, 2021, the Company and Legacy Bakkt completed the Business Combination pursuant to the Offering Documents. Thereafter, the Company changed its name to "Bakkt Holdings, Inc." and began operating a digital asset platform that enables consumers to buy, sell, convert, and spend digital assets. The complaint alleges that the Offering Documents were negligently prepared and, as a result, contained untrue statements of material fact or omitted to state other facts necessary to make the statements made not misleading and were not prepared in accordance with the rules and regulations governing their preparation, and that throughout the Class Period Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, the Offering Documents and Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company had defective financial controls; (ii) as a result, there were errors in the Company's financial statements related to the misclassification of certain shares issued prior to the Business Combination; (iii) accordingly, the Company would need to restate certain of its financial statements; (iv) the Company downplayed the true scope and severity of these issues; (v) the Company overstated its remediation of its defective financial controls; and (vi) as a result, the Offering Documents and Defendants' public statements throughout the Class Period were materially false and/or misleading and failed to state information required to be stated therein. On May 17, 2021, Bakkt-then still operating as VIH-notified the SEC of its inability to timely file its quarterly report for the quarter ended March 31, 2021. Specifically, the Company advised that, as a result of a statement issued by the SEC, "the Company reevaluated the accounting treatment of its public warrants and private placement warrants" and "is currently determining the extent of the SEC Statement's impact on its financial statements[.]" On this news, the Company's share price fell $0.13 per share, or 1.26%, to close at $10.18 per share on May 18, 2021. Then, on October 13, 2021, the Company disclosed in an SEC filing that it had also previously failed to properly account for the classification of its Class A ordinary shares and "adjust[ed] . . . the initial carrying value of the Class A ordinary shares subject to possible redemption with the offset recorded to additional paid-in capital (to the extent available), accumulated deficit and Class A ordinary shares." Notably, the Company revised its balance sheet as of December 31, 2020, including, among other changes, additional paid-in capital that was reduced from $9,860,338 to nil, an accumulated deficit that ballooned from $4,861,190 to $29,250,419, and total shareholders' equity of $5,000,009 that swung to a total shareholders' deficit of $29,249,901. Following these additional disclosures, the Company's share price fell $0.47 per share, or 4.73%, to close at $9.46 per share on October 14, 2021. Finally, on November 22, 2021, Bakkt disclosed in another SEC filing that the Company's management "has re-evaluated . . . the accounting classification of the Class A ordinary shares . . . of [VIH] . . . and has identified errors in the historical financial statements of VIH . . . related to the misclassification . . . of the Class A Ordinary Shares prior to the [Business Combination]." Specifically, the Company found that, as a result of errors in its condensed consolidated financial statements for the year ended December 31, 2020, and the quarterly periods ended March 31, 2021, June 30, 2021 and September 30, 2021, Bakkt should "restate certain of VIH's condensed consolidated financial statements from" those periods. On this news, Bakkt's stock price fell $2.70 per share, or 13.69%, to close at $17.02 per share on November 22, 2021. As of the time the complaint was filed, Bakkt's Class A common stock was trading between $4 to $5 per share and continues to trade below its initial value from the Business Combination, damaging investors. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomlaw.com. CONTACT: Robert S. Willoughby Pomerantz LLP rswilloughby@pomlaw.com 888-476-6529 ext. 7980 [GN] BARCLAYS PLC: Bragar Eagel Investigates Securities Claims --------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, is investigating potential claims against Barclays PLC (NYSE: BCS), CIRCOR International, Inc. (NYSE: CIR), and NeoGenomics, Inc. (NASDAQ: NEO). Our investigations concern whether these companies have violated the federal securities laws and/or engaged in other unlawful business practices. Additional information about each case can be found at the link provided. Barclays PLC (NYSE: BCS) On March 28, 2022, Barclays disclosed that it had sold $15.2 billion more structured notes and exchange-traded notes than it had registered. Barclays would repurchase the affected securities at their original price, resulting in approximately $592 million in losses. On this news, Barclays' share fell $0.96, or 10.6%, to close at $8.09 per share on March 28, 2022, thereby injuring investors. For more information on the Barclays investigation go to: https://bespc.com/cases/BCS CIRCOR International, Inc. (NYSE: CIR) On March 14, 2022, CIRCOR disclosed that it may restate financial results dating to 2018 due to accounting irregularities related to its pipeline engineering unit. The Company stated that the irregularities appear to be "in the range of $35 to $45 million of pre-tax income on a cumulative basis over a period of at least five years." On this news, the Company's stock fell as much as 2.4% during after-hours trading on March 14, 2022. For more information on the CIRCOR investigation go to: https://bespc.com/cases/CIR NeoGenomics, Inc. (NASDAQ: NEO) NeoGenomics specializes in cancer genetics testing and information services and aims to provide comprehensive oncology-focused testing menus in the world for physicians to help them diagnose and treat cancer. On Monday, March 28, 2022, NeoGenomics' Chief Executive Mark Mallon stepped down as the health-testing company revealed that first-quarter financials will miss guidance and rescinded its forecast for the full year. On this news, the price of NeoGenomics shares declined by $5.30 per share, or approximately 29.8%, from $17.79 per share to close at $12.49 per share on March 29, 2022. For more information on the NeoGenomics investigation go to: https://bespc.com/cases/NEO About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B. Raymond, Esq. (212) 355-4648 investigations@bespc.comwww.bespc.com [GN] BERBIX INC: Mahmood Wage-and-Hour Suit Goes to N.D. Illinois ------------------------------------------------------------ The case styled SABA MAHMOOD, individually and on behalf of all others similarly situated v. BERBIX INC., Case No. 22LA00000112, was removed from the Circuit Court of Lake County, Illinois, to the U.S. District Court for the Northern District of Illinois on May 9, 2022. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:22-cv-02456 to the proceeding. The case arises from the Defendant's alleged violations of the Illinois Biometric Information Privacy Act by requiring its customers to upload a photo of their faces and collecting biometric facial geometry scans from their photos without first obtaining their informed written consent and without providing written disclosures regarding its purpose for collecting their biometrics and disclosing its retention practices. Berbix Inc. is a software company in San Francisco, California. [BN] The Defendant is represented by: Bethany C. Lobo, Esq. Joseph D. Mornin, Esq. Wazhma Sadat, Esq. COOLEY LLP 3 Embarcadero Center, 20th Floor San Francisco, CA 94111-4004 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 E-mail: blobo@cooley.com jmornin@cooley.com wsadat@cooley.com - and – Robert E. Earles, Esq. Tiana A. Demas, Esq. COOLEY LLP 110 N. Wacker Drive, 42nd Floor Chicago, IL 60606 Telephone: (312) 881-6500 Facsimile: (312) 881-6598 E-mail: rearles@cooley.com tdemas@cooley.com BEST BUY: Fails to Issue Proper Repossession Notice, Dashiell Says ------------------------------------------------------------------ RHASHAUNA DASHIELL, individually and on behalf of all others similarly situated, Plaintiff v. BEST BUY IMPORTS INC., Defendant, Case No. 220500968 (Pa. Com. Pl., May 10, 2022) is a class action complaint brought against the Defendant to redress systemic violations of Pennsylvania's Uniform Commercial Code (UCC). According to the complaint, the Plaintiff has availed the Defendant's offer to finance his acquisition of a used 2008 Buick Lacrose pursuant to a Retail Installment Sale Contract (RISC) in which monthly payments were required to be made and the annual percentage rate was 21 percent. However, the Defendant has declared a default in or about January 2022 and ordered a repossession of the Plaintiff's automobile. Although the Defendant issued a Repossession Notice to the Plaintiff, the Defendant failed to provide him and other similarly situated consumers with the proper notice of repossession and disposition of collateral. Allegedly, the Defendant's repossession notice failed to advise the Plaintiff that she is entitled to an accounting of any unpaid indebtedness, failed to state the place where the vehicle is stored, and failed to provide a phone number. Best Buy Imports Inc. is a buy-here-pay-here car dealership which regularly finances the purchase of automobiles for consumer use in Pennsylvania. [BN] The Plaintiff is represented by: Cary L. Flitter, Esq. Andrew M. Milz, Esq. Jody Thomas Lopez-Jacobs, Esq. FLITTER MILZ, P.C. 450 N. Narberth Ave., Suite 101 Narberth, PA 19072 Tel: (610) 822-0782 BLACKBOARD STUDENT: Faces Richert FLSA Suit Over Unpaid Overtime ---------------------------------------------------------------- DANIEL RICHERT, individually and on behalf of all others similarly situated, Plaintiff v. BLACKBOARD STUDENT SERVICES, INC., Defendant, Case No. 1:22-cv-00508 (E.D. Va., May 9, 2022) is a class action against the Defendant for its failure to pay overtime wages in violation of the Fair Labor Standards Act and the Kentucky Wages and Hours Act, breach of contract, and unjust enrichment. The Plaintiff worked for the Defendant as a customer service advisor from July 2019 to February 2021. Blackboard Student Services, Inc. is an education technology company, with its principal place of business in Virginia. [BN] The Plaintiff is represented by: Jonathan L. Stone, Esq. THE MOODY LAW FIRM, INC. 500 Crawford Street, Suite 200 Portsmouth, VA 23704 Telephone: (757) 393-4093 Facsimile: (757) 397-7257 E-mail: jstone@moodyrrlaw.com - and – Jacob R. Rusch, Esq. Zackary S. Kaylor, Esq. JOHNSON BECKER, PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Telephone: (612) 436-1800 Facsimile: (612) 436-1801 E-mail: jrusch@johnsonbecker.com zkaylor@johnsonbecker.com BOB EVANS: Mitchell Sues Over Unpaid Wages for Tipped Employees --------------------------------------------------------------- RODNEY MITCHELL and RHONDA THOMAS, individually and on behalf of all others similarly situated, Plaintiffs v. BOB EVANS RESTAURANTS, LLC, Defendant, Case No. 2:22-cv-02123-MHW-KAJ (S.D. Ohio, May 9, 2022) is a class action against the Defendant for its failure to compensate the Plaintiffs and similarly situated tipped employees appropriate minimum wages in violation of the Fair Labor Standards Act, the Kentucky Wages and Hours Act, and the Indiana Minimum Wage Law. Plaintiffs Mitchell and Thomas have been employed by the Defendant as tipped employees at its stores in Kentucky and Indiana from September 2019 and from April 1, 2012, respectively, until the present. Bob Evans Restaurants, LLC is a restaurant owner and operator, with its principal place of business at 8111 Smith's Mill Road, New Albany, Ohio. [BN] The Plaintiffs are represented by: Robert E. DeRose, Esq. BARKAN MEIZLISH DEROSE COX LLP 4200 Regent Street, Suite 210 Columbus, OH 43219 Telephone: (614) 221-4221 E-mail: bderose@barkanmeizlish.com - and – Jerome P. Prather, Esq. J. Conner Niceley, Esq. GARMER & PRATHER, PLLC 141 North Broadway Lexington, KY 40507 Telephone: (859) 254-9352 Facsimile: (859) 233-9769 E-mail: jprather@garmerprather.com cniceley@garmerprather.com - and – Andrew Clarke Weeks, Esq. LAWRENCE & LAWRENCE, PLLC 440 South Seventh Street, Suite 200 Louisville, KY 40203 Telephone: (502) 589-5855 Facsimile: (502) 589-9472 E-mail: acweeks@reallawky.com - and – D. Todd Varellas, Esq. James J. Varellas III, Esq. VARELLAS & VARELLAS 249 West Short Street, Suite 201 Lexington, KY 40507 Telephone: (859) 252-4473 Facsimile: (859) 252-4476 E-mail: tvarellas@varellaslaw.com jayvarellas@varellaslaw.com BONDI SANDS: N.D. California Trims Claims in Moran Class Suit ------------------------------------------------------------- In the case, MICHELLE MORAN, Plaintiff v. BONDI SANDS (USA) INC., et al., Defendants, Case No. 21-cv-07961-JSW (N.D. Cal.), Judge Jeffrey S. White of the U.S. District Court for the Northern District of California grants in part and denies in part Bondi Sands' motion to dismiss. I. Background In the summer of 2021, Moran purchased can of Bondi Sands' aerosol fragrance-free sunscreen. The front label of the Purchased Product includes the phrase "Reef Friendly." Moran alleges that the term Reef Friendly "led her to believe that the Purchased Product's ingredients were all reef-safe and otherwise could not harm reefs, including the coral reefs and marine life that inhabits and depends on them." According to Moran, the Purchased Product, and other similar products containing the Reef Friendly statement, actually contain chemical ingredients, such as avobenzone, homoslate, octisalate, and/or octorylene, which "are not safe for reefs because they can harm and/or kill reefs, including the coral reefs and the marine life that inhabits or depends on them." Moran alleges she was not aware of that fact when she purchased the Product, and would not have purchased the Product, or would have paid substantially less for it, had she known the truth. She also alleges that she continues to see Bondi Sands' Products that use Reef Friendly on the labels. She would like to purchase them in the future, if that representation was true, but because she does not "possess any specialized knowledge, skill, experience, or education in sun care products," she has no way to determine the truth. Based on these and additional allegations that the Court will address in the analysis, Moran seeks relief on behalf of herself and putative classes for violations under each prong of California's Unfair Competition Law (the "UCL Claim"), for violations of California's False Advertising Law (the "FAL Claim"), for violations California's Consumer Legal Remedies Act (the "CLRA Claim"), for breach of warranty, and for unjust enrichment. The matter comes before the Court upon consideration of the motion to dismiss filed by Defendant Bondi Sands. The Court has considered the parties' papers, relevant legal authority, and the record in the case. II. Analysis A. The Court Denies Bondi Sands' Motion to Invoke the Primary Jurisdiction Doctrine. Bondi Sands moves to dismiss or stay pursuant to the primary jurisdiction doctrine. "The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency." The Food and Drug Administration ("FDA") has promulgated regulations and labeling requirements for over the counter ("OTC") sunscreens. Bondi Sands also notes Congress is considering legislation that would require the FDA, in consultation with other agencies, to develop labeling requirements for the term "Reef Safe." The legislation was introduced in July 2021 and, to date, has not been passed. Each version of the proposed bill also provides the FDA with at least two-years from the date the law is enacted to develop those requirements. Moran does not seriously dispute that this is an area that would fall within the FDA's expertise and that it has not yet been addressed. However, "primary jurisdiction is not required when a referral to the agency would significantly postpone a ruling that a court is otherwise competent to make." Efficiency is the deciding factor in whether to invoke primary jurisdiction. In one of the other cases that Moran's counsel has filed in the District, Judge White holds that the Court considered this issue and determined that, at this juncture, action by the FDA appeared too remote to warrant invocation of the doctrine, citing White v. The Kroger Co., No. 21-cv-08004-RS, 2022 WL 888657, at *2-3 (N.D. Cal. Mar. 25, 2022). He concurs and, in light of that uncertainty, concludes invoking the doctrine would not be efficient. Accordingly, he denies in part Bondi Sands' motion on that basis. B. The Court Denies Bondi Sands' Motion to Dismiss Based on FDCA Preemption. Bondi Sands also argues Moran's claims are preempted by the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. sections 301, et seq. The FDCA contains a preemption provision, which provides that "no State may establish or continue in effect any requirement that is different from or in addition to, or that is otherwise not identical with a requirement under the FDCA." The FDA's regulations governing OTC sunscreen do not currently address environmental claims. Moran argues she asks only that the Reef Friendly phrase be removed from the label. She alleges, however, that the Court should require "prominent qualifications and/or disclaimers on the [Bondi Sands' Products'] front label concerning their true nature." Judge White holds that even if the FDA neither prohibits nor permits the phrase Reef Friendly, Moran fails to meaningfully engage with Bondi Sands' argument that she asks the Court to ask Bondi Sands to add information not currently required by the FDA to the Products' labels. For that reason, he finds that Prescott v. Bayer Health Care, LLC, on which she relies, distinguishable. No. 20-cv-00102-NC, 2020 WL 4430958, at *2-3 (N.D. Cal. July 31, 2020). However, it also is evident that Moran's claim is based on the theory that the phrase Reef Friendly is misleading, and FDCA regulations prohibit "claims that would be false and/or misleading on sunscreen products." Accordingly, Judge White concludes Moran's claims are not preempted in their entirety and denies in part Bondi Sands' motion on that basis as well. C. The Court Concludes Moran Has Stated Claims for Relief. Bondi Sands also moves to dismiss for failure to state a claim. A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. Bondi Sands argues Moran is proceeding on a lack of substantiation theory because she alleges it was "statutorily required to ensure it has adequate substantiation for" the "Reef Friendly" representation. Bondi Sands' argument that Moran fails to show the chemicals at issue are actually dangerous goes to whether she ultimately will be able to prove her claims that the statement is false or misleading, rather than whether she has alleged that is the case. Accordingly, Judge White denies in part Bondi Sands' motion to dismiss on this basis. Bondi Sands moved to dismiss the breach of warranty and unjust enrichment claims solely on the basis that they were derivative of Moran's consumer protection claims. Because he concludes the consumer protection claims can proceed, Judge White also denies Bondi Sands' motion to dismiss these derivative claims. D. The Court Grants, in Part, Bondi Sands' Motion to Dismiss the Equitable Claims. Bondi Sands moves to dismiss Moran's claims for equitable relief on the basis that she has an adequate remedy at law. It is well-established that claims for relief under the FAL and the UCL are limited to restitution and injunctive relief. In addition to seeking restitution, Moran seeks prospective injunctive relief. Judge White concludes that the allegations do not establish that the damages she seeks are necessarily inadequate or incomplete. That is, Moran's inability to obtain damages would result from her CLRA and common law claims' failure on the merits" not that there "there is an inherent limitation of the legal remedy that renders it inadequate." In addition, Moran alleges that she bought her sunscreen in July 2021, "so her damages or restitution would not be affected by whether the statute of limitations is three or four years." Accordingly, Judge White concludes that Moran fails to allege she lacks an adequate monetary remedy at law, and he grants in part Bondi Sands' motion to dismiss on this basis. Because he cannot conclude it would be futile, Judge White grants Moran leave to amend. E. The Court Concludes Moran Alleges She Has Standing. Bondi Sands' final argument is that Moran fails to allege facts to show she has standing. A lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Moran alleges she purchased the Product based on the Reef Friendly representation and would not have done so, or would have paid substantially less for it, had she known the truth. Therefore, to the extent Bondi Sands argues that Moran fails to allege injury-in-fact to pursue damages, Judge White denies the motion. Bondi Sands also challenges Moran's standing to seek injunctive relief, which requires her to allege she "has suffered or is threatened with a 'concrete and particularized' legal harm, coupled with a 'sufficient likelihood that she will again be wronged in a similar way.'" Moran alleges that she "is not personally familiar with the ingredients in the Products and does not possess any specialized knowledge, skill, experience, or education in sun care products, and their ingredients or formulations." Therefore, she claims she has no way to determine if the Reef Friendly representation is true and is unable to rely on the representation in the future. Bondi Sands argues Moran can simply review the ingredients list to determine if the allegedly harmful chemicals are present. Judge White concludes that it is reasonable -- and plausible -- to infer Moran may not be able to determine whether the Bondi Sands Products are reef friendly when confronted with them in the future. Moran's allegations are sufficient to plausibly allege she has standing to seek injunctive relief. Accordingly, the Court denies Bondi Sands' motion to dismiss on this basis as well. III. Conclusion For the foregoing reasons, Judge White grants in part and denies in part Bondi Sands' motion to dismiss. As noted, the parties stipulated that Moran may file a Second Amended Complaint, and the Court has approved that stipulation. The Court will not require Moran to file the proposed Second Amended Complaint until she determines whether she intends to amend her allegations regarding the claims for monetary injunctive relief. Accordingly, Judge White grants Moran until May 20, 2022, to file a second amended complaint, that will include the amendments addressed in the stipulation and which may amend the allegations regarding equitable relief. Bondi Sands will answer or otherwise respond by June 3, 2022, although the parties may stipulate to extend that deadline. The parties will appear for a case management conference on June 24, 2022, and they will file a joint case management conference statement by June 17, 2022. A full-text copy of the Court's April 29, 2022 Order is available at https://tinyurl.com/yr4jjftr from Leagle.com. CALIFORNIA: Faces Class Action Over Alleged Data Breach ------------------------------------------------------- David McAfee, writing for Bloomberg Law, reports that the State Bar of California is taking its fight against a proposed class action over an alleged data breach to federal court, California filings show. Plaintiffs proceeding under pseudonyms sued the California State Bar and JudyRecords.com in March in Orange County Superior Court. The complaint, which was later amended, alleges that about 322,525 nonpublic records by the State Bar were published on Judyrecords.com between October 2021 to February 2022. The suit alleges the State Bar failed to notify those affected in a timely manner. Defendants moved the suit to federal court on May 13. Causes of Action: Violation of California Information Practices Act of 1977, invasion of privacy, Sherman Act, negligence, negligence per se. Relief: Injunctive relief in the form of disclosures, damages, costs and attorneys' fees. Class Size: Proposed class includes all Californians identified in the 188 to 322,525 nonconfidential files released. Response: The California State Bar declined to comment on pending litigation. Attorneys: The plaintiffs are represented by Law Offices of Lenore Albert. The case is Roe v. State Bar of Cal., C.D. Cal., No. 8:22-cv-00983, 5/13/22. [GN] CAPSTONE LOGISTICS: Verdugo Labor Suit Removed to C.D. California ----------------------------------------------------------------- The case styled ANDREA OTANEZ VERDUGO, on behalf of herself and all others similarly situated v. CAPSTONE LOGISTICS, LLC and DOES 1 to 100, inclusive, Case No. 22STCV09270, was removed from the Superior Court of the State of California, County of Los Angeles, to the U.S. District Court for the Central District of California on May 9, 2022. The Clerk of Court for the Central District of California assigned Case No. 2:22-cv-03141 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Business and Professions Code including failure to provide meal periods and pay missed meal period premiums, failure to provide accurate wage statements, failure to pay all wages owed in a timely manner, waiting time penalties, and unfair competition. Capstone Logistics, LLC is a logistics company based in Georgia. [BN] The Defendant is represented by: Gerald L. Maatman, Esq. Jennifer A. Riley, Esq. SEYFARTH SHAW LLP 233 S. Wacker Drive, 80th Floor Chicago, IL 60606 Telephone: (312) 460-5000 Facsimile: (312) 460-7000 E-mail: gmaatman@seyfarth.com jriley@seyfarth.com - and – Justin T. Curley, Esq. Ian T. Long, Esq. SEYFARTH SHAW LLP 560 Mission Street, 31st Floor San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 E-mail: jcurley@seyfarth.com itlong@seyfarth.com CEDAR REALTY: Kim Sues Over Shareholder Investment Value Scheme --------------------------------------------------------------- Julia Kim, on behalf of herself and all others similarly situated v. Cedar Realty Trust, Inc., Bruce J. Schanzer, Gregg A. Gonsalves, Abe Eisenstat, Steven G. Rogers, Sabrina Kanner, Darcy D. Morris, Richard H. Ross, and Sharon Stern, Case No. 1:22-cv-01103-GLR (D. Md., May 6, 2022) seeks to enjoin this sham transaction or, at the very least, require Cedar to honor the terms of its agreements with the preferred shareholders by requiring a vote by the preferred shareholders on the fairness of this transaction. According to the complaint, if this Proposed Transaction is allowed to proceed, it will not only result in harm to the Company's preferred shareholders, it will have far reaching implications for Maryland law and damage the investment prospects for Maryland REITs. The directors of the Maryland real estate investment trust Cedar have devised a scheme to rob their preferred shareholders of their investment value and transfer it to themselves and their common stockholders. Specifically, Cedar's board of directors has structured a transaction whereby they will essentially cease all meaningful operations, sell off the lion's share of the Company's material assets, and use the proceeds of the sale of these assets to retire all of Cedar's debt and pay the Board and the common stockholders nearly $400 million. Meanwhile, the preferred shareholders, who collectively invested $161.25 million into the Company, will receive nothing, says the suit. Worse, if this transaction is consummated, the preferred shares will fall under the control of Wheeler Real Estate Investment Trust, L.P. a company with a history not only of underperformance, but of an unwillingness to honor its obligations to its own preferred shareholders. This sham "merger" the Defendants have devised will, in the end, leave the surviving shell company with no ability to honor the obligations to its preferred shareholders to which Cedar, members of its senior management, and its Board are legally bound. This transaction must therefore be stopped, the suit added. The Plaintiff is and has been at all relevant times, the owner of Series C preferred shares of Cedar Realty. She purchased these shares prior to the announcement of the Proposed Transaction and has continuously held her shares since that time. Cedar is a Maryland corporation and maintains its principal ofﬁces at 928 Carmans Road, Massapequa, New York. It is a real estate investment trust (REIT). Organized in 1984, it has elected to be taxed as a REIT under applicable provisions of the Internal Revenue Code. To qualify as a REIT under those provisions, Cedar must have a preponderant percentage of its assets invested in, and income derived from, real estate and related sources. To that end, Cedar has focused primarily on ownership, operation and redevelopment of approximately 50 grocery-anchored shopping centers in high-density urban markets from Washington, D.C. to Boston. The Individual Defendants are officers of the Company.[BN] The Plaintiff is represented by: Thomas J. Minton, Esq. GOLDMAN & MINTON, P.C. 3600 Clipper Mill Rd., Suite 201 Baltimore, MD 21211 Telephone: (410) 783-7575 Facsimile: (410) 783-1711 E-mail: tminton@charmcitylegal.com - and - Matthew Heffner, Esq. Matthew Hurst, Esq. HEFFNER HURST 30 North LaSalle Street, Suite 1210 Chicago, IL 60602 Telephone: (312) 346-3466 E-mail: mheffner@heffnerhurst.com mhurst@heffnerhurst.com - and - Lawrence Deutsch, Esq. Andrew abramowitz, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3062 E-mail: ldeutsch@bm.net aabramowitz@bm.net CENTERPOINT LEGAL: Appeals Court Reverses Dismissal of Gomez Suit ----------------------------------------------------------------- In the case, MERVELIN A. GOMEZ, on behalf of herself and those similarly situated, Plaintiffs-Appellants v. CENTERPOINT LEGAL SOLUTIONS, LLC, Defendant-Respondent, Docket No. A-2927-20 (N.J. Super. App. Div.), the Superior Court of New Jersey, Appellate Division, reversed the order granting the Defendant's motion to dismiss and the order denying the Plaintiff's motion for reconsideration. Plaintiff Mervelin A. Gomez appeals from a May 5, 2021 Law Division order granting Defendant CenterPoint Legal Solution's (CenterPoint) Rule 4:6-2(e) motion to dismiss for failure to state a cause of action; and a June 15, 2021 order denying the Plaintiff's motion for reconsideration. Utilizing Rule 4:6-2(e), the trial court dismissed the complaint, with prejudice, relying solely on the entire controversy doctrine (ECD), which it applied as though there still existed a requirement of mandatory party joinder. The Appellate Court opines that this misapplication of the ECD, which no longer compels mandatory party joinder, requires that the trial court order be reversed. I. Background Ms. Gomez filed suit in the U.S. District for the District of New Jersey in 2017 against a debt buyer, LVNV Funding LLC, its master servicer, Resurgent Capital Services, and LVNV's collection attorneys, Forster & Garbus (F&G). She alleged they violated the Federal Fair Debt Collection Practices Act and invaded her privacy when they enforced a garnishment against her bank account based on a judgment against a different person with a similar name. The federal claim provided for federal court jurisdiction and supplemental jurisdiction over the state law privacy claims. Gomez was unaware of CenterPoint's involvement in LVNV's collection efforts since CenterPoint's role had not been disclosed and was unknown. Gomez learned of CenterPoint when she conducted depositions of LVNV's and F&G's employees in July 2019.2 During these depositions, it was disclosed that CenterPoint directed or controlled the actions of F&G and that F&G had not had any contact with LVNV. Gomez alleges that the manner of CenterPoint's operations shielded it from view and its participation in, or supervision of, the practices complained of could not have been detected. Based on what Gomez learned as a result of the deposition testimony, she filed the State court action on Feb. 1, 2021, alleging that CenterPoint engaged in the unauthorized practice of law. In her complaint, the Plaintiff complied with Rule 4:5-1(b)(2) by certifying that the matter in controversy was the subject of a pending federal lawsuit. The Plaintiff asserted three causes of action in her complaint against CenterPoint: (1) enjoining CenterPoint from engaging in the unauthorized practice of law; (2) a violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -227, by committing unconscionable commercial practices; and (3) damages for the unauthorized practice of law in violation of N.J.S.A. 2C:21-22(a). The Superior Court declines, on this record, to opine as to whether the Plaintiff alleged sufficient facts to establish each cause of action. That issue is not before it. The basis for the relief granted was not the inadequacy of the pleadings as constituted, but the perceived fatal consequence of commencing the State court action given the pendency of a related federal court suit against other parties. The State action asserts entirely different theories of liability than those asserted in the federal suit; the claims arise exclusively under State law; CenterPoint is not a party to the federal case; the parties to the federal case are not (and need not be) parties to the state court case; the State court case is a putative class action; the federal case is not. CenterPoint filed a motion to dismiss Gomez's complaint on March 23, 2021, claiming that Gomez's claims were barred by the ECD. Following oral argument on April 30, 2021, the trial court granted CenterPoint's motion to dismiss on May 5, 2021. A motion to reconsider was denied on June 15, 2021, for essentially the same reasons the motion was granted in the first instance. This appeal followed. On appeal, the {laintiff argues the trial court misapplied the ECD and that CenterPoint, as a non-party to the federal case, had no grounds to raise the ECD and certainly none to obtain relief pursuant to it. II. Discussion A. Part Joinder The trial court's attention was fixed on the Plaintiff's failure to add CenterPoint to the federal suit. Contrary to the court's focus during oral argument that the Plaintiff failed to join CenterPoint as a party in the federal case, the ECD is not about mandatory party joinder. As the Superior Court explained in Hobart Bros. Co., there is no penalty under the ECD for failure to have joined a party to some other separate but transactionally related lawsuit unless some showing can be made that the failure was inexcusable and non-joinder caused substantial prejudice. Nothing in the trial court's opinion or CenterPoint's motion speaks to this standard, and the cited caselaw is from an era when the ECD rubric included mandatory party joinder. While the tone of the trial court's opinion implies, at least, that it felt the Plaintiff's failure to join CenterPoint to the federal case was inexcusable there is nothing at all to suggest a finding of "substantial prejudice." Despite a passing reference to "prejudice" near the end of the opinion, there is nothing in the record that would cause the Superior Court to conclude the prejudice was substantial. Indeed, the only prejudice cited by the court, the amount of discovery taken by the Plaintiff in the federal court action, could easily be mitigated by ordering that all such discovery be produced to CenterPoint and by providing ample time and latitude to CenterPoint to consider that discovery and to take its own. The sanction of dismissal with prejudice of the case for failing to join CenterPoint to the federal case is without legal basis on this record. B. Claim joinder The Plaintiff's allegations in her complaint demonstrate the claims against CenterPoint and the Defendants in the federal case are different though they are transactionally related. That nexus, without more, is insufficient to force the conclusion that the claims in this suit had to have been made part of the claims in the federal action, the Superior Court opines. In this complaint, paragraphs twenty-four, twenty-five, and twenty-six, allege that CenterPoint contracted with LVNV to practice law by providing legal advice on post-judgment litigation, and that CenterPoint directed F&G to take actions against the Plaintiff. But the equitable nature of the ECD requires that the Superior Court considers more than only whether claims against a possible new party may be transactionally related to the claims in the pending federal case. Even assuming the ECD required mandatory party joinder, the Superior Court opines that the Plaintiff did not have a realistic opportunity to amend the federal pleadings to name CenterPoint as a party in the federal case nor any obligation, under the facts set forth in the state court complaint, to do so. By the time the state court matter was filed, the federal case was well along, discovery was over, and the time to add additional parties had passed. The Superior Court holds that the dismissal with prejudice was unwarranted because the "claims asserted in the state court action did not lie at the core of the federal action." Moreover, the Defendants were not prejudiced by the Plaintiff's failure to join them to the federal action and the interests of judicial economy were not disserved because there was no likelihood of duplication of effort or inconsistent determinations. III. Conclusion & Order The Superior Court begins by first stating the obvious: The ECD applies only to known claims. It does not bar unknown claims. Gomez maintains that at the deposition in the federal case she first learned about CenterPoint's involvement. By that time, she alleges a federal court scheduling order precluded pleading amendments. It is academic whether Gomez would have succeeded if a motion was belatedly filed in the federal case for leave to amend the second amended complaint to name CenterPoint as a defendant in the federal case. CenterPoint contends the Plaintiff must have known about it sooner than the deadline for amending pleadings in the federal case. The Superior Court cannot resolve that factual dispute on CenterPoint's Rule 4:6-2(e) motion to dismiss. The lack of a hearing on that issue, and reliance by the trial court on the pleadings alone, requires that the Superior Court examines the record in the light most favorable to the Plaintiff. Second, CenterPoint made its motion to dismiss while the federal action was pending before an adjudication on the merits against the defendants in the federal case. This is a significant point. The Superior Court has already established that failure to join CenterPoint to the federal action, is not, and on this record cannot be, a basis by itself to impose the most punitive effect of the ECD. The inapplicability of ECD relief is compounded by the fact that at the time the matter under review was filed, there was no disposition substantive or otherwise, of the federal suit. In this State court action, Gomez did not sue a party already sued. Plaintiff sued a new party while the federal suit was ongoing. Thus, the Superior Court is satisfied that the case is not a "successive action" and as such is almost certainly out of bounds for ECD relief. Third, CenterPoint has not demonstrated an inability to defend the action or any related prejudice. This is yet another vital point. The judge found CenterPoint was prejudiced because the Plaintiff "had the benefit of over three years of discovery" in the federal case. As observed earlier, this "prejudice" can be surmounted. CenterPoint can easily obtain the discovery from the federal case and use it in the case, and the judge can manage discovery in the case by ensuring CenterPoint has enough time to defend the allegations in the complaint that it engaged in the unauthorized practice of law. The Plaintiff did not sue CenterPoint at the last second. CenterPoint will have ample time to prepare for trial. Nothing in the record satisfies us that CenterPoint's rights have been prejudiced in any way and certainly not substantially. Thus, even if we were inclined to find some ECD or Rule violation, which the Superior Court does not, the penalty of dismissal with prejudice is one to be imposed sparingly and only when no other lesser remedy would be adequate. Fourth, related to the preceding consideration, application of the ECD is discretionary and the boundaries are not limitless; it is "constrained by principles of equity." The Superior Court applies the doctrine under the totality of the circumstances of each case. Gomez argues, and the Superior Court agrees, that the judge did not take full stock of the procedural history in the federal case. Had the judge weighed the "equitable underpinnings" that were apparently overlooked, or were unclear in a pleadings-based review, dismissal would not have been granted. To the extent the Plaintiff seeks relief on other grounds not expressly addressed, the Superior Court considers these issues to lack sufficient merit to warrant discussion in a written opinion. The Superior thus concludes that the trial court's reasoning to rest on an incorrect understanding of the ECD and, as such, dismissal of the case with prejudice on ECD grounds was a mistaken exercise of discretion. It reversed. A full-text copy of the Court's April 29, 2022 Opinion is available at https://tinyurl.com/367w2p5d from Leagle.com. Philip D. Stern argued the cause for appellants (Kim Law Firm, LLC and Scott C. Borison (Borison Firm, LLC) of the District of Columbia, Maryland and California bars, admitted pro hac vice, attorneys; Yongmoon Kim -- jhk@thekimlawfirm.com -- and Scott Borison, of counsel and on the briefs). Peter G. Siachos -- psiachos@grsm.com -- argued the cause for respondent (Gordon Reese Scully & Mansukhani, LLP, attorneys; Peter G. Siachos, of counsel and on the brief; Kasey Theresa Mahoney -- kmahoney@grsm.com -- and Patrick D. Tobia -- ptobia@grsm.com -- on the brief). CHANGE HEALTHCARE: Estevez Sues Over Non-Exempt Workers' Unpaid OT ------------------------------------------------------------------ BOLIVAR ESTEVEZ, individually and on behalf of all others similarly situated, Plaintiff v. CHANGE HEALTHCARE, INC., Defendant, Case No. 3:22-cv-00327 (M.D. Tenn., May 6, 2022) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated workers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff has worked for the Defendant as a non-exempt worker since at least December 2021. Change Healthcare, Inc. is a healthcare company, headquartered in Knoxville, Tennessee. [BN] The Plaintiff is represented by: Kimberly De Arcangelis, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Ave., 15th Floor Orlando, FL 32801 Telephone: (407) 420-1414 Facsimile: (407) 867-4791 E-mail: kimd@forthepeople.com - and – R. Burke Keaty, II, Esq. MORGAN & MORGAN – NASHVILLE, PLLC 801 Broadway, Suite 105 Nashville, TN 37203 Telephone: (615) 514-4205 E-mail: bkeaty@forthepeople.com - and – Matthew S. Parmet, Esq. PARMET PC 3 Riverway, Ste. 1910 Houston, TX 77056 Telephone: (713) 999-5228 E-mail: matt@parmet.law COMMERCE DISTRIBUTION: Rodriguez Suit Removed to C.D. California ---------------------------------------------------------------- The case styled PAUL RODRIGUEZ, on behalf of himself and all others similarly situated v. COMMERCE DISTRIBUTION COMPANY LLC, SMART & FINAL STORES LLC, SMART & FINAL LLC, and DOES 1-50, inclusive, Case No. 22STCV11092, was removed from the Superior Court for the State of California, County of Los Angeles, to the U.S. District Court for the Central District of California on May 6, 2022. The Clerk of Court for the Central District of California assigned Case No. 5:22-cv-00780 to the proceeding. The case arises from the Defendants' alleged violation of the California Labor Code and the California's Unfair Competition Law including failure to pay minimum wages, failure to pay overtime compensation, failure to provide required meal periods, failure to provide required rest periods, failure to provide accurate itemized wage statements, failure to pay wages when due, failure to reimburse employees for required expenses, unlawful deductions from paychecks, and unfair competition. Commerce Distribution Company LLC is a company that operates a distribution center located in Los Angeles, California. Smart & Final Stores LLC is an operator of grocery and foodservice stores, headquartered in Los Angeles, California. Smart & Final LLC is a chain of warehouse-style food and supply stores based in Commerce, California. [BN] The Defendants are represented by: Maria C. Roberts, Esq. Dessi N. Day, Esq. Noel J. Meza, Esq. GREENE & ROBERTS 402 West Broadway, Suite 1025 San Diego, CA 92101 Telephone: (619) 398-3400 Facsimile: (619) 330-4907 E-mail: mroberts@greeneroberts.com dday@greeneroberts.com nmeza@greeneroberts.com CRAWLSPACE DOCTOR: Faces Cobb FLSA Suit for Unpaid OT in E.D. Ark. ------------------------------------------------------------------ BRAILAND COBB and RICKY TATE, individually and on behalf of all others similarly situated, Plaintiffs v. CRAWLSPACE DOCTOR OF ARKANSAS, LLC and ELLIS LEE MANUEL, JR., Defendants, Case No. 4:22-cv-00409-BRW (E.D. Ark., May 6, 2022) is a class action against the Defendants for failure to compensate the Plaintiffs and similarly situated workers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act and the Arkansas Minimum Wage Act. Mr. Cobb was employed by the Defendants as a laborer from September 2021 until March 2022. Mr. Tate was employed by the Defendants as a foreman from September 2021 until February 2022. Crawlspace Doctor of Arkansas, LLC is a family-owned business in Arkansas. [BN] The Plaintiffs are represented by: Patrick Wilson, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy., Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: patrick@sanfordlawfirm.com josh@sanfordlawfirm.com CUSHMAN & WAKEFIELD: Conriquez Suit Removed to N.D. California -------------------------------------------------------------- The case styled FERNANDO CONRIQUEZ, on behalf of himself and all others similarly situated v. CUSHMAN & WAKEFIELD U.S., INC.; CUSHMAN & WAKEFIELD OF CALIFORNIA, INC.; INTUITIVE SURGICAL, INC.; and DOES 1 through 50, inclusive, Case No. 21CV392800, was removed from the Superior Court of the State of California, County of Santa Clara, to the U.S. District Court for the Northern District of California on May 6, 2022. The Clerk of Court for the Northern District of California assigned Case No. 3:22-cv-02734 to the proceeding. The case arises from the Defendants' alleged violations of the California Labor Code and the California's Business and Professions Code including failure to provide required meal periods, failure to provide required rest periods, failure to pay overtime wages, failure to pay minimum wages, failure to pay all wages due to discharged and quitting employees, failure to maintain required records, failure to furnish accurate itemized wage statements, failure to indemnify employees for necessary expenditures incurred in discharge of duties, unfair and unlawful business practices, and civil penalties. Cushman & Wakefield U.S., Inc. is a global real estate services firm, headquartered in Chicago, Illinois. Cushman & Wakefield of California, Inc. is a provider of real estate management services located in Walnut Creek, California. Intuitive Surgical, Inc. is a manufacturer of surgical equipment based in California. [BN] The Defendants are represented by: John R. Giovannone, Esq. Allison Chua, Esq. CDF LABOR LAW LLP 707 Wilshire Boulevard, Suite 5150 Los Angeles, CA 90017 Telephone: (213) 612-6300 E-mail: jgiovannone@cdflaborlaw.com achua@cdflaborlaw.com DELAVAL INC: Triple S Farms Sues Over V300's Concealed Defects -------------------------------------------------------------- TRIPLE S FARMS, LLC, individually and on behalf of all others similarly situated, Plaintiff v. DELAVAL INC., WEST AGRO, INC., DELAVAL INTERNATIONAL AB, DELAVAL HOLDING BV, DELAVAL HOLDING AB, and TETRA LAVAL INTERNATIONAL SA, Defendants, Case No. 4:22-cv-00309-HFS (W.D. Mo., May 9, 2022) is a class action against the Defendants for breach of contract, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, breach of express warranty, strict products liability, negligence, fraudulent inducement, negligent misrepresentation, fraudulent concealment or omission, and violation of Minnesota Deceptive Trade Practices Act. The case arises from the Defendants' alleged false, deceptive, and misleading advertising, labeling, and marketing of the DeLaval VMS V300 milking system. The Defendants misrepresented the V300's abilities, benefits, capabilities and past performance and at the same time concealed their knowledge of the defects and problems with the V300. As a result of the Defendants' misrepresentations, the Plaintiff and Class members purchased the V300 system and suffered financial losses. Had they known the truth, they would not have purchased the V300. Triple S Farms, LLC is a dairy farm operator located at 24376 343rd Avenue, Belgrade, Minnesota. DeLaval Inc. is a wholly-owned subsidiary of DeLaval Holding BV, with its principal place of business at 11100 N. Congress Ave., Kansas City, Missouri. West Agro, Inc. is a wholly-owned subsidiary of DeLaval Inc., with its principal place of business at 11100 N. Congress Ave., Kansas City, Missouri. DeLaval International AB is a wholly-owned subsidiary of DeLaval Holding BV, with its principal place of business located in Tumba, Sweden. DeLaval Holding BV is a manufacturer of milking equipment and dairy farm solutions, with its principal place of business located in Overijssel, Netherlands. It is a wholly-owned subsidiary of DeLaval Holding AB. DeLaval Holding AB is a wholly-owned subsidiary of Tetra Laval International SA or Tetra Laval Group, with its principal place of business located in Tumba, Sweden. Tetra Laval International SA is a manufacturer of milking equipment and solution for dairy farms, with its principal place of business located in Pully, Switzerland. [BN] The Plaintiff is represented by: Patrick J. Stueve, Esq. Bradley T. Wilders, Esq. K. Ross Merrill, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Rd., Suite 200 Kansas City, MO 64113 Telephone: (816) 714-7100 E-mail: stueve@stuevesiegel.com wilders@stuevesiegel.com merrill@stuevesiegel.com - and – Daniel C. Perrone, Esq. PERRONE LAW PLLC 2136 Victory Boulevard Staten Island, NY 10314 Telephone: (646) 470-9244 E-mail: dcp@theperronefirm.com - and – Arend R. Tensen, Esq. CULLENBERG & TENSEN, PLLC 199 Heater Road, Suite 2 Lebanon, NH 03766 Telephone: (603) 448-7100 E-mail: tensen@nhvt-injurylaw.com DELAWARE: Light Suit Challenges Delaware Unclaimed Property Statute ------------------------------------------------------------------- JOHN LIGHT, Individually and on Behalf of All Others Similarly Situated v. THE HONORABLE COLLEEN C. DAVIS, State Treasurer of the State of Delaware, and BRENDA MAYRACK, ESQ., State Escheator and Director, Office of Unclaimed Property, Case No. 1:22-cv-00611-UNA (D. Del., May 6, 2022) challenges the constitutionality of the Delaware Unclaimed Property statute, 12 Del. C. section 1130, et seq., under the Fifth and Fourteenth Amendments of the United States Constitution and under Article I, Section 8 of the Delaware Constitution of 1897. According to the complaint, the act authorizes and requires the State of Delaware to take and hold for public use private property that is presumed to be abandoned under the Act without paying just compensation to the owners thereof. The Takings Clause of the Fifth Amendment prohibits the government from taking or using private property for public use without just compensation to the property owner. Art. I, section 8 of the Delaware Constitution likewise prohibits the State from taking a person's property or applying it to public use without their consent and without compensation being made: "nor shall any person's property be taken or applied to public use without the consent of his or her representatives, and without compensation being made." As protected by the Fifth Amendment and Art. I, section 8 of the Delaware Constitution, just compensation means the full monetary equivalent of the property taken from its owner or another who is entitled to the property, including the benefit of the use of that property by the State. The Fifth Amendment and Art. I, section 8 of the Delaware Constitution protect not only the principal of unclaimed property in the custody of the State, but also the time-value of the property. At a minimum, just compensation requires that the owners and others entitled to claim property that is "unclaimed" or "presumed abandoned" are entitled to receive back from the State the so-called "time value" of their property for as long as the property is in the possession or control of the State and used by the State for governmental or public purposes. However, the Act prohibits the accrual and payment of interest over and above the original amount of the unclaimed property received by the State Escheator to the owner or person entitled to recover the unclaimed property, and does not otherwise provide for the payment of dividends, accruals, earnings, investment returns, and other benefits earned on and from, or just compensation for, unclaimed or abandoned property for public purposes to the owner thereof, says the suit. The Act thus violates the Takings Clause of the Fifth Amendment and Art. I, section 8 of the Delaware Constitution because it denies just compensation to the owner or person entitled to recover the unclaimed property. As alleged, the State Escheator does not pay interest, dividends, accruals, earnings, investment returns, or other benefits above the original amount of the unclaimed property to the owner or person entitled to recover the unclaimed property. The Plaintiff is and has been at all relevant times a citizen and resident of New Castle County, State of Delaware. The Plaintiff is the "owner" of certain "property" as those terms are defined in 12 Del. C. sections 1130(17) and (19), that is "presumed abandoned" under 12 Del. C. section 1133 and, pursuant to the Act, currently is held in custody by the State Escheator.[BN] The Plaintiff is represented by: Mark C. Rifkin, Esq. Benjamin Y. Kaufman, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Ave., 9th Floor New York, NY 10016 Telephone: (212) 545-4600 - and - Arthur Susman, Esq. LAW OFFICE OF ARTHUR SUSMAN 1540 N. Lake Shore Drive Chicago, IL 60610 Telephone: (847) 800-2351 - and - James G. McMillan III, Esq. William E. Green, Jr., Esq. HALLORAN FARKAS + KITTILA LLP 5801 Kennett Pike, Suite Wilmington, DE 19807 Telephone: (302) 257-2103 Facsimile: (302) 257-2019 E-mail: jm@hfk.law / wg@hfk.law - and - Arthur Susman, Esq. LAW OFFICE OF ARTHUR SUSMAN 1540 N. Lake Shore Drive Chicago, IL 60610 Telephone: (847) 800-2351 DROPBOX INC: Faces Securities Class Action in California -------------------------------------------------------- Maeve Allsup, writing for Bloomberg Law, reports that Dropbox Inc. will avoid facing a securities class action in California state court after an appellate panel on May 13 refused to void provision in the company's bylaws designating federal district court as the exclusive forum for claims under the Securities Act of 1933. Jon Simonton sued Dropbox in 2019 on behalf of a proposed class of shareholders, alleging the registration statement the company issued for its 2018 initial public offering was inaccurate and misleading. A trial court in San Mateo County granted Dropbbox's motion to dismiss the suit based on a forum selection provision in its bylaws. [GN] EPIC HEALTH: Dismissal of Vickers' Liability Claims Upheld in Part ------------------------------------------------------------------ In the case, DONNA VICKERS, INDIVIDUALLY, AS THE REPRESENTATIVE FOR ALL WRONGFUL DEATH BENEFICIARIES, AND AS AN HEIR AT LAW AND REPRESENTATIVE OF THE ESTATE OF JERRY VICKERS, DECEASED, Appellant v. EPIC HEALTH SERVICES, INC., AOC SENIOR HOME HEALTH CORP., D/B/A ANGELS OF CARE AND/OR ANGELS OF CARE PEDIATRIC HOME HEALTH AND AMERIGROUP CORPORATION, Appellees, Case No. 05-20-00054-CV (Tex. App.), the Court of Appeals of Texas for the Fifth District, Dallas, affirmed in part and reversed in part the trial court's order dismissing health care liability claims for inadequate expert reports under Chapter 74 of the civil practice and remedies code. I. Background The matter is an appeal from an order dismissing health care liability claims for inadequate expert reports under Chapter 74 of the civil practice and remedies code. The Appellant argues she timely supplemented the expert reports after the trial court granted an extension and that the reports are sufficient to meet the statutory requirements. Donna Vickers's husband, Jerry Vickers, was diagnosed with amyotrophic lateral sclerosis (ALS) in 2010. As the disease progressed, Jerry Vickers could not breathe on his own and could not swallow. By 2013, he was dependent on a ventilator and feeding tube and required complete support for all activities of daily living. He was completely paralyzed by 2014. Epic began providing home health nursing services to Jerry Vickers in early 2014. Despite his paralysis, Jerry could still blink and was able to communicate with the aid of a computer. He was also able to take and complete online courses. However, in July 2015, Epic unilaterally terminated its services and stopped sending staff to the Vickers's home on July 6, 2015. Donna attempted to obtain adequate skilled home nursing after Epic's termination but was unable to do so. Less than three weeks after Epic's termination, Jerry died. After Epic terminated its services, Donna contracted with AOC to provide sixty hours per week of skilled nursing care with a start date of July 9, 2015. AOC, however, failed to provide adequate skilled nursing care for Jerry. Several nurses were selected but they lacked sufficient experience to care for a paralyzed ALS patient. Amerigroup administered Jerry's Medicaid services. Amerigroup refused to approve a different home health care service with the needed respiratory therapist because that group was out of network. On July 22, 2015, Jerry suffered a cardiac arrest and sustained brain damage. He was declared brain dead on July 28, 2015. Ms. Vickers filed the suit against Epic, AOC, and Amerigroup on Dec. 3, 2015. Vickers timely served Epic and AOC with expert reports and curricula vitae from registered nurses Yvette C. Rodgers-Musial and Mary Beth Geise on the standard of care and breach and from Dr. Peter Gailiunas, Jr., on causation. Epic and AOC objected to Gailiunas's reports on the basis that he was not qualified and his reports were insufficient on causation. They did not object to the standard of care and breach of the standard of care reports from the two nurses. Vickers timely served Amerigroup with expert reports and curricula vitae from Dr. Patrick Daly and nurse Geise on Aug. 31, 2016. Amerigroup objected to the qualifications of these experts and to Daly's report as to standard of care and causation. Epic and AOC contend that the trial court orally granted Vickers a 30-day extension to correct deficiencies in Gailiunas's report at the Sept. 16, 2016 hearing on their objections. At the hearing, the judge stated she was "going to allow you 30 days to correct any deficiencies in the reports" but the judge did not sign a written order at that time. Vickers did not serve a supplemental report within 30 days of that hearing but did serve a report and curriculum vitae from Dr. Robert Todd, a neurologist, on Dec. 21, 2016. Epic and AOC objected to the timeliness of Todd's report and moved to dismiss Vickers's claims against them. Epic also objected to Todd's qualifications and the sufficiency of his report. After a hearing on Feb. 3, 2017, the trial court signed an order granting Epic's motions to dismiss. However, the court vacated this order on March 21, 2018 and signed a written order granting Vickers 30 days to cure any deficiencies in the reports. Ms. Vickers served Epic, AOC, and Amerigroup with a supplemental report from Todd on April 20, 2018. Each of the Defendants filed objections to Todd's supplemental report. The trial court dismissed Vickers's claims against Amerigroup at a hearing on Aug. 24, 2018. By an order signed Oct. 26, 2018, the trial court granted Epic's objections to Todd's supplemental report and its motion to dismiss. On Dec. 10, 2019, the trial court signed an order dismissing the claims against AOC, resulting in a final judgment. Vickers then filed the appeal. II. Analysis A. Epic and AOC In her first issue, Vickers argues that the trial court abused its discretion by granting Epic's and AOC's objections and motions to dismiss. Epic and AOC argue the trial court orally granted a 30-day extension at the Sept. 16, 2016 hearing and Todd's expert reports were not served within that time. Vickers also argues the trial court abused its discretion by concluding that Todd was not qualified to give an opinion on causation. She next argues the trial court abused its discretion by sustaining Epic's and AOC's objections to Todd's reports on causation. The Court of Appeals (i) concludes that both of Todd's reports were timely; (ii) the trial court abused its discretion to the extent it sustained Epic's and AOC's objections to Todd's qualifications because reading Todd's reports and curriculum vitae as a whole shows he has the necessary knowledge, skill, experience, and training to render an opinion on causation in the case; and (iii) the trial court abused its discretion by sustaining Epic's and AOC's objections because Todd's reports represent a good faith effort to explain factually how proximate cause will be proven as to Epic and AOC. B. Amerigroup Vickers's last three issues concern the dismissal of her claims against Amerigroup. Initially, Vickers argues she was not required to satisfy the Chapter 74 expert report requirements because Chapter 74 does not apply to her claim against Amerigroup. Next, she contends that Todd's supplemental report regarding Amerigroup was sufficient to satisfy the section 74.351 requirements. In her third and fourth issues, Vickers argues that Chapter 74 is preempted by federal law because Amerigroup is a Medicaid payor and that the trial court erred by denying her motion for class certification of her claims against Amerigroup. The Court of Appeals opines that because Vickers asserted a claim under Chapter 88, she was required to comply with the expert report requirements of section 74.35; (ii) the trial court did not abuse its discretion in concluding that Todd was not qualified as an expert as to a Medicaid managed care organization such as Amerigroup because neither the report nor the curriculum vitae indicate Todd is qualified to opine on the degree of care that a managed care entity of ordinary prudence would use under the same or similar circumstances; and (iii) because the second amended petition was not filed until after the trial court dismissed Vickers's claim against Amerigroup with prejudice, the petition was not properly before the court, and the trial court did not abuse its discretion by rejecting Vickers's preemption argument and her motion for class certification. The Court of Appeals overrules Vickers's second, third, and fourth issues. III. Conclusion The Court of Appeals concludes the trial court abused its discretion by granting Epic's and AOC's objections to Vickers's expert reports. It also concludes the trial court did not abuse its discretion by granting Amerigroup's objections to the expert reports. Accordingly, it will reverse the trial court's orders granting Epic's and AOC's objections and motions to dismiss and remand the claims against those parties to the trial court for further proceedings. It will affirm the trial court's order dismissing Vickers's claims against Amerigroup. IV. Judgment In accordance with the Court of Appeals' Opinion of this date, the judgment of the trial court is affirmed in part and reversed in part. The trial court's Oct. 26, 2018 order sustaining Defendant Epic's objections to the Plaintiff's supplemental chapter 74 expert report and granting the Defendant's motion to dismiss and the Dec. 10, 2019 order granting Defendant AOC's objections to Robert E. Todd's Chapter 74 Report and motion to dismiss are reversed. The Aug. 24, 2018 and Nov. 16, 2018 orders dismissing the Appellant's claims against Amerigroup Texas, Inc. are affirmed. The Court of Appeals remanded the cause to the trial court for further proceedings consistent with its Opinion. Appellant Donna Vickers, individually, as the representative for all wrongful death beneficiaries, and as an heir at law and representative of the estate of Jerry Vickers, deceased, recover her costs of this appeal from Appellees Epic and AOC. Appellee Amerigroup recovers its costs of this appeal from Appellant Vickers individually, as the representative for all wrongful death beneficiaries, and as an heir at law and representative of the estate of Jerry Vickers, deceased. A full-text copy of the Court's April 29, 2022 Memorandum Opinion is available at https://tinyurl.com/ypyu2ruk from Leagle.com. FIRST HIGH-SCHOOL: Bragar Eagel Investigates Securities Claims -------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, is investigating potential claims against First High-School Education Group Co., Ltd. (NYSE: FHS) and Enservco Corp. (NYSE: ENSV). Our investigations concern whether these companies have violated the federal securities laws and/or engaged in other unlawful business practices. Additional information about each case can be found at the link provided. First High-School Education Group Co., Ltd. (NYSE: FHS) On or around March 11, 2021, First High-School Education conducted its initial public offering ("IPO"), and the company sold 7.5 million shares for $10.00. The investigation seeks to determine whether the Company's filings with the U.S. Securities and Exchange Commission in connection with its March 2021 IPO and subsequent investor communications contained untrue statements of material facts or omitted to state other facts necessary to make the statements made therein not misleading concerning the Company's business, and operations. Since the IPO the stock has plummeted and on April 6, 2022, First High-School Education stock closed at $1.43. For more information on the First High-School investigation go to: https://bespc.com/cases/FHS Enservco Corp. (NYSE: ENSV) On April 18, 2022, Enservco disclosed in a filing with the U.S. Securities and Exchange Commission that it had "concluded that the Company's previously issued condensed consolidated financial statements as of and for the quarters ended March 31, 2021, June 30, 2021 and September 30, 2021 (collectively, the 'Relevant Periods') should no longer be relied upon due to the Company's utilization of certain deferred tax liabilities in 2021" and that "[t]he Company intends to amend its Quarterly Reports on Form 10-Q for the Relevant Periods to reflect restatements of its condensed consolidated financial statements for the Relevant Period." On this news, Enservco's stock price fell sharply during intraday trading on April 19, 2022. For more information on the Enservco investigation go to: https://bespc.com/cases/ENSV About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B. Raymond, Esq. (212) 355-4648 investigations@bespc.com www.bespc.com [GN] HANNAH FORREST: Fails to Pay Farmworkers, Martinez-Morales Alleges ------------------------------------------------------------------ JOSE CRUZ MARTINEZ-MORALES, MARGARITO DE LA CRUZ-NAVA, CUAUHTEMOC FLORENCIO-GUTIERREZ, MARISOL FLORENCIO-GUTIERREZ, AGUSTIN FLORENCIO-SANCHEZ, JEIDY FLORES-ARRIAGA, ROSA IRMA GOMEZ-HERNANDEZ, IVAN OSWALDO MEZA-GARCIA, FELICIANO NAVARRETE-FLORES, PEDRO PROCOPIO-DIAZ, JOSE ROMERO-PATRICIO, BENIN BETUEL VARGAS-ESPIRITU, and SERGIO VILLALVA-GATICA, on behalf of themselves and other similarly situated persons v. VALENTINO LOPEZ, JR. aka and/or d/b/a VALENTINO LOPEZ AND VALENTINO LOPEZ GOMEZ, GILBERTO LOPEZ, HANNAH FORREST FARMS, LLC aka and/or d/b/a HANNAH FORREST BLUEBERRIES, LLC, and RONNIE CARTER FARMS, INC., Case No. 5:22-cv-00187-BO (E.D.N.C., May 6, 2022) is a class action by 13 former H-2A temporary agricultural workers and employees of Defendants under the Fair Labor Standards Act, the North Carolina Wage and Hour Act, the Trafficking Victims Protection Reauthorization Act of 2005, and and the common law of contracts for failure to pay the minimum wage, failure to pay wages at least at the promised rate(s) as required by the NCWHA and their work contracts with Defendants, failure to pay all wages owed to the Plaintiffs when due, and liquidated damages. The Plaintiffs are former employees of the agricultural corporate enterprises, farm labor contractors (FLCs). By using FLCS, the North Carolina farms and enterprises avoided incurring costs of direct H-2A program participation while still benefitting from the provision of H-2A labor to their farms and enterprises. In 2020 the FLC defendants recruited foreign farmworkers in numerous states in Mexico and convinced many of those recruited workers to pay exorbitant, unlawful recruitment fees for the opportunity to work lawfully in the U.S. as H-2A workers. The FLC defendants made fraudulent promises to the recruited workers about the wages they would earn and the terms and conditions of the contracted employment in the U.S. in order to persuade the workers to pay the recruitment fees. The FLC defendants' alleged fraudulent recruitment scheme left Plaintiffs in stifling debt. The Plaintiffs incurred debt from both the unlawfully charged recruitment fees and the expenses FLC defendants required Plaintiffs to pay to travel from their homes in Mexico to North Carolina to work for them in North Carolina. The Defendants never reimbursed Plaintiffs for such expenses, in violation of the terms of the H-2A contract, H-2A regulations, and federal law, the lawsuit says.[BN] The Plaintiffs are represented by: Aaron V. Jacobson, Esq. Caitlin A. Ryland, Esq. LEGAL AID OF NORTH CAROLINA FARMWORKER UNIT 224 South Dawson Street Raleigh, NC 27601 E-mail: AaronJ@legalaidnc.org CaitlinR@legalaidnc.org HATCH HAVEN: Fails to Pay Overtime Wages, Flores Suit Claims ------------------------------------------------------------ BRYAN FLORES, individually and on behalf of all others similarly situated, Plaintiff v. HATCH HAVEN, LLC, an Arizona Limited Liability Company, Defendant, Case No. 2:22-cv-00795-DLR (D. Ariz., May 10, 2022) brings this complaint as a collective action against the Defendant for its alleged illegal pay practices that violated the Fair Labor Standards Act. The Plaintiff has worked for the Defendant as an hourly-paid employee from February 2020 to March 2022. The Plaintiff claims that the Defendant did not properly compensated him on an hourly basis. Although he normally worked more than 40 hours in a week, the Defendant did not pay him overtime premiums for any hours worked in excess of 40 per workweek. The Defendant compensated him only depending on the type of work he did at one to three hourly rates during each pay period. The Plaintiff seeks to recover all unpaid overtime wages, liquidated damages and penalties, litigation costs, pre- and post-judgment interest at the highest rates, and other relief as may be necessary and appropriate. Hatch Haven, LLC provides day treatment, group homes, and clinics for persons with developmental and other disabilities. [BN] The Plaintiff is represented by: Samuel R. Randall, Esq. RANDALL LAW PLLC 4742 N 24th Street, Suite 300 Phoenix, AZ 85016 Tel.: (602) 328-0262 E-mail: srandall@randallslaw.com HOMETOWN AMERICA: Sept. 13 Final Settlement Approval Hearing Set ---------------------------------------------------------------- David Linton, writing for The Sun Chronicle, reports that a class action lawsuit settlement for $1.2 million to go to a group of tenants at the Oakhill mobile home park will go to a judge in September for final approval. The lawsuit claimed that Hometown America Communities Inc., the park owners, overcharged rent to the tenants from October 2006 through January 2021. The company and tenants previously reached a preliminary settlement for the tenants to be paid $1,264,804, Peter Tekippe, the Attleboro lawyer who represents the tenants, said on April 29. The proposal goes to a state Housing Court judge for final approval on Sept. 13. Combing through real estate records, Tekippe said he has already tracked down 144 tenants who paid rent during the period covered in the settlement. A group of tenants filed a lawsuit in 2012 against Hometown America in a case that went all the way to the state Supreme Judicial Court. The SJC ruled in the tenants' favor in November 2020 and sent the case back to the Housing Court for settlement. Tekippe placed legal ads on April 29 in The Sun Chronicle and other newspapers in order to notify any other possible tenants who may be eligible to receive funds to file a claim by July 5. [GN] HYUNDAI MOTOR: Files Motion to Dismiss ABS Module Class Action -------------------------------------------------------------- David A. Wood, writing for Car Complaints, reports that Hyundai has filed a motion to dismiss a class action lawsuit that alleges anti-lock braking system (ABS) module recalls were issued too late and won't fix the problems. According to the Hyundai class action lawsuit, multiple models are at risk of fires if the modules corrode from moisture. The modules have electrical current running through them even when the vehicles are shut off, but electrical short circuits can allegedly set these vehicles ablaze. 2007-2010 Hyundai Elantra 2009-2011 Hyundai Elantra Touring 2007-2008 Hyundai Entourage 2007 Hyundai Santa Fe 2006-2011 Hyundai Azera 2006 Hyundai Sonata 2006-2010 Kia Sedona 2007-2009 Kia Sorento 2008-2009 Kia Sportage The plaintiffs assert Hyundai and Kia ABS module recalls in 2016, 2018 and 2020 weren't good enough. The lawsuit alleges that even if Hyundai's recall repairs do help to prevent ABS module problems while the vehicles are turned off, the recalls allegedly don't prevent fires from occuring while the vehicles are running. Hyundai's Motion to Dismiss the ABS Module Lawsuit In its motion to dismiss the ABS class action lawsuit, Hyundai argues the claims are barred by the statute of limitations and because the plaintiffs lack standing to assert the claims. Hyundai also says the claims are barred because any losses claimed by the plaintiffs were not caused by Hyundai's statements or omissions. Additionally, the claims are allegedly barred because any alleged injury is too speculative. The automaker told the judge the lawsuit cannot be maintained as a class action because the proposed classes fail to meet federal requirements. All the claims are also allegedly barred because the plaintiffs consented to all of Hyundai's actions and conduct, and "because any loss or injury claimed to be suffered by Plaintiffs, if any, resulted from the misuse, negligence, omissions, lack of diligence, and/or fault of Plaintiffs." Breach of implied warranty claims are allegedly barred because the plaintiffs didn't provide Hyundai with the opportunity to fix the alleged problems. The plaintiffs also allegedly failed to provide Hyundai with timely notice of a breach of warranty. The plaintiffs also allegedly didn't suffer a "cognizable injury" if the vehicles didn't have any ABS module problems. The Hyundai ABS module lawsuit was filed in the U.S. District Court for the Central District of California: Zakikhani, et al., v. Hyundai Motor Company, et al. The plaintiffs are represented by Lenze Lawyers, PLC, and Fegan Scott LLC. [GN] INNOVATIVE INDUSTRIAL: Vincent Wong Reminds of June 24 Deadline --------------------------------------------------------------- Attention Innovative Industrial Properties, Inc. ("Innovative Industrial Properties") (NYSE: IIPR) shareholders: The Law Offices of Vincent Wong disclosed that a class action lawsuit has commenced on behalf of investors who purchased between May 7, 2020 and April 13, 2022. If you suffered a loss on your investment in Innovative Industrial Properties, contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/innovative-industrial-properties-inc-loss-submission-form?prid=26540&wire=4 ABOUT THE ACTION: The class action against Innovative Industrial Properties includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (1) Innovative Industrial Properties' focus is to be a cannabis company lender rather than a REIT; (2) that the true values of the Company's properties are significantly lower than Innovative Industrial Properties represents; (3) there are existential issues in its top customers; (4) as a result, its top customers may not be able to continue making payments to Innovative Industrial Properties and the Company would face significant issues replacing these customers; and (5) as a result, defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. DEADLINE: June 24, 2022 Aggrieved Innovative Industrial Properties investors only have until June 24, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] IONQ INC: Bragar Eagel Discloses Securities Class Action Lawsuit ---------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized stockholder rights law firm, is investigating potential claims against IonQ, Inc. ("IonQ" or the "Company") (NYSE: IONQ, IONQ+) on behalf of IonQ stockholders. Our investigation concerns whether IonQ has violated the federal securities laws and/or engaged in other unlawful business practices. On May 3, 2022, Scorpion Capital released a 183-page short report regarding IonQ's management, operations, and business. The Scorpion Capital report stated that "We conducted 25 research interviews including 7 former employees and executives; 11 leading quantum computing experts including seminal names in the field, some who have published papers with IonQ's founders and are intimately familiar with its technology; and 5 of its key "customers" and partners. We believe our research represents the most in-depth due diligence to date on IonQ, leading us to conclude it is just another VC-backed SPAC scam." Following this news, IonQ's stock closed down 9.03%, to close at $7.15 per share on May 3, 2022. If you purchased or otherwise acquired IonQ shares and suffered a loss, are a long-term stockholder, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Alexandra Raymond by email at investigations@bespc.com, telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. [GN] IRONNET INC: Robbins Geller Reminds of June 21 Deadline ------------------------------------------------------- The law firm of Robbins Geller Rudman & Dowd LLP on May 1 disclosed that purchasers of IronNet, Inc. (NYSE: IRNT) securities between September 15, 2021 and December 15, 2021, inclusive (the "Class Period") have until June 21, 2022 to seek appointment as lead plaintiff in Grad v. IronNet, Inc., No. 22-cv-00449 (E.D. Va.). The IronNet class action lawsuit charges IronNet and certain of its top executive officers with violations of the Securities Exchange Act of 1934. If you suffered significant losses and wish to serve as lead plaintiff of the IronNet 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 IronNet class action lawsuit must be filed with the court no later than June 21, 2022. CASE ALLEGATIONS: IronNet designs and develops solutions for cyberattacks. On August 27, 2021, IronNet became a publicly traded company via a merger with LGL Systems Acquisition Corp., a blank check company otherwise known as a special purpose acquisition vehicle ("SPAC"). On August 10, 2021, in anticipation of the merger vote, IronNet updated its financial forecasts "[d]ue to shifts in the anticipated closing of several new customer contracts." It forecasted fiscal year 2022 ("FY 2022") (ended January 31, 2022) revenues of $43 million to $45 million and annual recurring revenue ("ARR") of $75 million, among other things. The IronNet class action lawsuit alleges that defendants made false and/or misleading statements and/or failed to disclose that: (i) IronNet had materially overstated its business and financial prospects; (ii) IronNet was unable to predict the timing of significant customer opportunities which constituted a substantial portion of its publicly issued FY 2022 financial guidance; (iii) IronNet had not established effective disclosure controls and procedures to reasonably ensure its public disclosures were timely, accurate, complete, and not otherwise misleading; and (iv) as a result, IronNet's public statements were materially false, misleading, and/or lacked any reasonable basis in fact at all relevant times. On December 15, 2021, IronNet issued a press release entitled "IronNet Reports Third Quarter Fiscal 2022 Financial Results," in which it slashed IronNet's FY 2022 guidance, which had been repeated shortly before the merger vote and which was reaffirmed just months earlier. On the analyst and investor call later that same day, IronNet's co-CEO, defendant William E. Welch, announced that IronNet had fired its Chief Revenue Officer. On the call, defendants also admitted that, despite having first publicly issued IronNet's FY 2022 guidance in March 2021, they did not have any confidence as to when substantial revenues underlying the guidance would actually come in. On this news, IronNet's stock price fell by approximately 31%, 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 IronNet securities during the Class Period to seek appointment as lead plaintiff in the IronNet 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 IronNet class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the IronNet class action lawsuit. An investor's ability to share in any potential future recovery of the IronNet 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. Attorney advertising. Past results do not guarantee future outcomes. Services may be performed by attorneys in any of our offices. Contact: Robbins Geller Rudman & Dowd LLP 655 W. Broadway, San Diego, CA 92101 J.C. Sanchez, 800-449-4900 jsanchez@rgrdlaw.com [GN] ISRAEL: Settles Class Action Over Pension Tax Payments ------------------------------------------------------ Ela Levy-Weinrib, writing for Globes, reports that in the settlement of a class action, the Israel Tax Authority has admitted unlawfully taxing tax-exempt pension payments. The Israel Tax Authority has admitted that it unlawfully collected tax from tax-exempt pension payments received by pensioners between 2012 and 2019, and it is now obliged to return the money to them. The illegally collected sums amount to tens of millions of shekels annually. The Tax Authority's unlawful conduct was exposed in a lawsuit, and a request that the suit should be recognized as a class action, filed by Shabtai Shabtai, a retired person who receives a pension, through Adv. Adi Leibowitz. The claim stated that the Tax Authority unlawfully instructed entities making pension payments - employers, provident funds, and others - not to award the tax exemption for a qualifying pension to anyone who had not presented approval in advance from the tax inspector, despite the fact that there was no real justification for this requirement, and despite the fact that the law stated that tax should not be deducted at source from an exempt pension. In a ruling giving court approval to a settlement in which the Tax Authority admitted having collected tax unlawfully, Central District Court judge Avi Gorman said, "Income determined by the legislator to be exempt from tax must not be taxed. The recognition of property rights makes it obligatory to terat exempt income carefully, and not set up obstacles to the exemption that are unnecessary and unjustified. Even a paternalistic concern to ensure that the taxpayer is aware of all his rights cannot justify taxation of exempt income." The court made a NIS 100,000 award to the bringer of the class action, and awarded costs of NIS 1 million plus VAT to his counsel. The claim concerned amendment 190 to the Income Tax Ordinance, which is mainly to do with expanding tax benefits given under section 9a of the ordinance when pension savings are withdrawn by taxpayers who have reached retirement age. In amendment 190, the legislator considerably enlarged the exemption given to a qualifying pension, with the aim of securing pensioners' rights in a reality in which life expectancy is rising and pension savings accumulated during a person's working life need to finance a longer period of retirement. As a result of the unjustified requirements imposed by the Tax Authority, however, a substantial portion of tax-exempt pensions, amounting to tens of millions of shekels, did not end up in the hands of the pensioners, but was instead paid to the Tax Authority as income tax. Following the lawsuit, the Tax Authority changed its instructions and told all pension payers to give the exemption without the need for approval from the tax inspector, but on the basis of the pensioner's signature on a short declaration only. The Tax Authority thus accepted Shabtai Shabtai's claim. According to the findings presented by the two sides, there are about 10,000 pensioners who, as a result of the Tax Authority's original instructions, had the tax-exempt element of their pensions taxed at source. In the request for approval of the settlement presented by the Tax Authority and Shabtai Shabtai, the amount of the tax rebate due to pensioners for the two years preceding the filing of the lawsuit, 2016-2017, is NIS 45.9 million. The amount unlawfully collected in 2018-2019 is estimated at a further NIS 80 million. [GN] JERRY INSURANCE: Hooper FTSA Suit Removed to M.D. Florida --------------------------------------------------------- The case styled SHANNON HOOPER, on behalf of himself and all others similarly situated v. JERRY INSURANCE AGENCY, INC., Case No. 22-CA-2971, was removed from the Ninth Judicial Circuit Court in and for Orange County, Florida, to the U.S. District Court for the Middle District of Florida on May 6, 2022. The Clerk of Court for the Middle District of Florida assigned Case No. 6:22-cv-00849-CEM-GJK to the proceeding. The case arises from the Defendant's alleged transmission of text messages and/or phone calls to the Plaintiff's and Class members' cellular phones without their consent in violation of the Florida Telephone Solicitation Act. Jerry Insurance Agency, Inc. is an insurance agency doing business in Florida. [BN] The Defendant is represented by: Yaniv Adar, Esq. Josh A. Migdal, Esq. MARK MIGDAL & HAYDEN 80 S.W. 8th Street, Suite 1999 Miami, FL 33130 Telephone: (305) 374-0440 E-mail: yaniv@markmigdal.com josh@markmigdal.com JOHNSON & JOHNSON: Edley Sues Over Concealment, Evidence Spoliation ------------------------------------------------------------------- DANIEL EDLEY and ROGER EDLEY, individually, as personal representatives of the Estate of Laszlo "Louis" Edley, deceased on behalf of said Estate, and as representative of others similarly situated, Plaintiffs v. JOHNSON & JOHNSON, JOHN/JANE DOE ATTORNEYS 1-1000, and JOHN/JANE DOE J&J CORPORATE MEMBERS 1-1000, Defendants, Case No. MID-L-002204-22 (N.J. Sup. Ct., Middlesex Cty., May 9, 2022) is a class action against the Defendants for fraudulent concealment and spoliation, fraud and deceit, and fraud upon courts. The case arises from the Defendants' continued engagement in a uniform and persistent pattern and practice of evidence spoliation by altering test reports, withholding test reports, hiding test reports and backup data/materials, devising and then employing test methods designed to avoid or conceal detection of asbestos in talc ore or talc products, failing to preserve evidence, and otherwise withholding, concealing and/or destroying material evidence relating to the Plaintiffs' decedent's and the Class members' underlying asbestos injury claims. As a result of the Defendants' deliberate withholding, destruction, and/or concealment of documents and evidence relating to Class members' underlying lawsuits' asbestos claims, and/or the false and misleading statements thereafter that no such documents or evidence existed, the Plaintiffs and Class members were hampered and impaired in the prosecution of their cases. Johnson & Johnson is a healthcare company, headquartered in New Brunswick, New Jersey. [BN] The Plaintiffs are represented by: Christopher M. Placitella, Esq. Michael Coren, Esq. Dennis M. Geier, Esq. Eric S. Pasternack, Esq. Jared M. Placitella, Esq. Justin I. Placitella, Esq. COHEN, PLACITELLA & ROTH, P.C. 127 Maple Avenue Red Bank, NJ 07701 Telephone: (732) 747-9003 E-mail: cplacitella@cprlaw.com mcoren@cprlaw.com dgeier@cprlaw.com epasternack@cprlaw.com jmplacitella@cprlaw.com justinplacitella@cprlaw.com JOHNSON & JOHNSON: HealthyLiving Suit Removed to D. Columbia ------------------------------------------------------------ The case styled CHEMICAL TOXIN WORKING GROUP INC., D/B/A HEALTHYLIVING FOUNDATION, on behalf of itself and all others similarly situated v. JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER INC., Case No. 2022 CA 001655 B, was removed from the Superior Court of the District of Columbia, Civil Division, to the U.S. District Court for the District of Columbia on May 6, 2022. The Clerk of Court for the District of Columbia assigned Case No. 1:22-cv-01259 to the proceeding. The case arises from the Defendants' alleged false and misleading advertising of certain products in violation of the D.C. Consumer Protection Procedures Act. Chemical Toxin Working Group Inc., doing business as HealthyLivinG Foundation, is a public-interest organization based in Beverly Hills, California. Johnson & Johnson is a healthcare company, headquartered in New Brunswick, New Jersey. Johnson & Johnson Consumer Inc. is a company that engages in the research and development of products based in New Jersey. [BN] The Defendants are represented by: Anthony T. Pierce, Esq. Miranda A. Dore, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 2001 K Street, NW Washington, DC 20006 Telephone: (202) 887-400 E-mail: apierce@akingump.com mdore@akingump.com - and – Steven A. Zalesin, Esq. Andrew D. Cohen, Esq. PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036-6710 Telephone: (212) 336-2000 E-mail: sazalesin@pbwt.com acohen@pbwt.com KAISER ALUMINUM: Fails to Pay Overtime Wages, Woodruff Suit Says ---------------------------------------------------------------- MARK WOODRUFF, individually and on behalf of all others similarly situated, Plaintiff v. KAISER ALUMINUM CORPORATION, Defendant, Case No. 3:22-cv-00333 (M.D. Tenn., May 9, 2022) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated workers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act, the Indiana Minimum Wage Law, and the Indiana Wage Payment Statute. The Plaintiff has worked for the Defendant as a non-exempt employee in Indiana since April 2021. Kaiser Aluminum Corporation is an American aluminum producer, headquartered in Lake Forest, California. [BN] The Plaintiff is represented by: Kimberly De Arcangelis, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Ave., 15th Floor Orlando, FL 32801 Telephone: (407) 420-1414 Facsimile: (407) 867-4791 E-mail: kimd@forthepeople.com - and – R. Burke Keaty, II, Esq. MORGAN & MORGAN – NASHVILLE, PLLC 801 Broadway, Suite 105 Nashville, TN 37203 Telephone: (615) 514-4205 E-mail: bkeaty@forthepeople.com - and – Matthew S. Parmet, Esq. PARMET PC 3 Riverway, Ste. 1910 Houston, TX 77056 Telephone: (713) 999-5228 E-mail: matt@parmet.law L&L SUPPLIES: Hua Jing Go Sues Over Unpaid Wages for Receptionists ------------------------------------------------------------------ HUA JING GAO, individually and on behalf of all others similarly situated, Plaintiff v. L&L SUPPLIES, INC., YOUPENG LI, and SUSAN LIANG, Defendants, Case No. 1:22-cv-03722 (S.D.N.Y., May 6, 2022) is a class action against the Defendants for failure to compensate the Plaintiff and similarly situated workers appropriate minimum wages and overtime wages in violation of the Fair Labor Standards Act and the New York Labor Law. Hua Jing Gao was employed by the Defendants as a receptionist from approximately January 2018 through February 2022. L&L Supplies, Inc. is a supplier of stone materials for residential and commercial purposes, with a principal place of business at 149 East Broadway, New York, New York. [BN] The Plaintiff is represented by: David Stein, Esq. STEIN & NIEPORENT LLP 1441 Broadway, Suite 6090 New York, NY 10018 Telephone: (212) 308-3444 E-mail: dstein@steinllp.com - and – Vincent S. Wong, Esq. LAW OFFICES OF VINCENT S. WONG 39 East Broadway, Suite 306 New York, NY 10002 Telephone: (212) 349-6099 E-mail: vswlaw@gmail.com LEPRINO FOODS: Loses Bid for Class Decertification in Vasquez Suit ------------------------------------------------------------------ In the case, ISAIAS VASQUEZ and LINDA HEFKE, on behalf of all other similarly situated individuals, Plaintiffs v. LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Defendants, Case No. 1:17-CV-00796-AWI-BAM (E.D. Cal.), Judge Anthony W. Ishii of the U.S. District Court for the Eastern District of California denied the Defendants' Motion for Summary Judgment and Motion for Decertification with respect to the Plaintiffs' "on-call" break claim. I. Introduction The class action lawsuit, brought before the Court pursuant to 28 U.S.C. Section 1332(d)(2), involves an employment dispute between the Plaintiff class representatives Isaias Vasquez and Linda Hefke and Defendants Leprino Foods Co. and Leprino Foods Dairy Products Co. (collectively, "Leprino" or "Defendants"). On March 30, 2020, the Court certified the Plaintiffs' claim that the Defendants required their non-exempt workers to remain "on-call" during their meal and rest breaks in violation of California law. Before the Court is Defendants' Motion for Summary Judgment and Motion for Decertification with respect to the Plaintiffs' "on-call" break claim. II. Background Leprino manufactures and processes cheese and dairy ingredients at its Lemoore West facility with a workforce of approximately 1,000 employees. The facility operates 24 hours a day, seven days a week. Product "quality" is listed as one of Leprino's core values, and Leprino reminds its employees of the importance of "quality" during meetings and with visuals, including a painting of the word "quality" on the steps at the entrance of the Lemoore West facility. On each workday a general practice of employees is to follow a policy of "producing products against a schedule" for Leprino's customers. Leprino trains its employees to "over communicate" with each other to prevent problems before they occur, carry out "all written and/or verbal directions and instructions," and avoid "unnecessary delay of production or operation of equipment." "Insubordination or refusal to follow Supervisor's instructions" is "prohibited conduct" subject to the employee being "warned, counseled, or disciplined, up to and including termination." Leprino has a written "meal break" policy in its employee handbook which, from May 1, 2013 to Oct. 16, 2017, stated in part "Employees are required to take a 30 minute unpaid duty-free meal break prior to the end of the 5th hour of work. During a meal break, employees are relieved of all duties and are free to leave the facility." As of Oct. 16, 2017, Leprino's written meal break policy states in part "Employees who work more than five hours in a day are provided a 30 minute unpaid, uninterrupted, duty-free meal prior to the end of the 5th hour of work. During a meal break, employees are relieved of all duties and are free to leave the facility." As for rest breaks, Leprino's employee handbook from May 1, 2013 to March 14, 2017 stated in part "Employees will be provided with one (1) 15-minute paid rest break when they work between 3 1/2 and 6 hours, and a second 15-minute paid rest break when they work between 6 and 10 hours, and a third 15 minute paid rest break when they work between 10 and 14 hours." From March 14, 2017 to Oct. 16, 2017, the employee handbook extended the length of rest breaks to twenty minutes. As of Oct. 16, 2017, Leprino's written rest break policy states in part "The Company authorizes and permits employees working at least 3 1/2 hours in a day to take a 20-minute, off-duty paid rest period for each four hours worked or major fraction thereof. Employees will be provided with one 20-minute paid rest break when they work between 3 1/2 and 6 hours, and a second 20-minute paid rest break when they work between 6 and 10 hours, and a third 20-minute paid rest break when they work between 10 and 14 hours." Since at least 2013, Leprino posted a memorandum near its time clocks which stated in part "Employees are required to take a 30-minute unpaid duty-free meal break prior to the end of the 5th hour of work." It also posted a sign next to the time clocks that read: "EMPLOYEES ARE EXPECTED TO TAKE A 30 MINUTE LUNCH BREAK RELIEVED OF ALL DUTY." In January 2019, Leprino added a sign next to the time clocks stating in part "Employees are expected to take a 30 minute lunch break relieved of all duty. Any employee unable to take a full 30 minute duty free meal break because they are required to come back to work early must notify their supervisor immediately. Employees are not required to have their 2-way radio on during meal or rest breaks." Leprino does not expressly require all hourly employees to take their meal or rest breaks in break rooms. Some hourly employees have taken breaks outside on the patio, outside in the smoking area, or in their cars in the parking lot. Additionally, some employees have taken their meal breaks away from the facility. According to a survey by the Plaintiffs' expert Jeffrey S. Petersen, when class members were asked whether they leave the building for their entire meal breaks, 16.3% answered "always" or "most of the time," 20.7% answered "occasionally," and 63% answered "rarely" or "never." When asked whether they leave the building for their entire rest breaks, 9.8% answered "always" or "most of the time," 6.9% answered "occasionally," and 82.5% answered "rarely" or "never." For some positions during meal and rest breaks, Leprino provides "break relief," which is designed to have other employees come in to take over the duties of those on break until they return. Many class members during their breaks received direct communications from supervisors, group leaders, and those providing break relief. According to several class members, the communications included inquiries related to work or commands to return to work to address urgent issues. The Plaintiffs' third amended complaint pleads eight causes of action against Leprino in a class representative capacity. On March 31, 2020, the Court certified the Plaintiffs' "on-call" break claim that the Defendants required their non-exempt workers to remain "on-call" during meal and rest breaks in violation of California law. The Court further certified the Plaintiffs' claim for "off-the-clock" work and derivative claims because they are premised on the Plaintiffs' "on-call" break claim. III. Discussion A. Motion for Summary Judgment The Defendants argue that Plaintiffs' "on-call" break claim fails as a matter of law because all class members were not on call during all of their breaks. According to them, Leprino did not have written or de facto policies and practices that required class members to be reachable and "at the ready" to supervisors during meal and rest breaks. Additionally, the Defendants argue that even if all class members were deemed to be "on call" during their breaks, the Plaintiffs' claim still fails as a matter of law because they were not all sufficiently subject to their control during their break times. Defendants contend that during meal and rest breaks, the class members were free to engage in personal activities free of geographical restrictions and were rarely or never contacted by supervisors about work. The Plaintiffs contend that there are triable issues of material fact regarding the Defendants' policies and practices and how they relate to breaks. Specifically, they contend that the Defendants' non-stop operations, emphasis on quality, production goals, written requirements to be responsive to supervisors at all times, and threats of discipline do and reasonably relate to breaks. The Plaintiffs also argue that the Defendants failed to prove that class members were allowed to use breaks for their own purposes because triable issues of material fact still exist as to whether the Defendants discouraged class members from leaving during breaks and whether the Defendants required them to be able to respond if they temporarily left the plant. After drawing all inferences in the light most favorable to the Plaintiffs, Judge Ishii holds that there are genuine issues of material fact with respect to the Plaintiffs' on-call break claim. While there is no dispute over the Defendants' written meal and rest break policies, genuine issues of material fact exist as to whether the class members were nevertheless required to remain "on-call" during their breaks. In conclusion, based on the evidence submitted by the parties, "a reasonable fact finder could find for either party" with respect to numerous factual disputes, thereby making it inappropriate for the Court to enter judgment as a matter of law on summary judgment. Thus, the Defendants' motion for summary judgment will be denied. B. Motion for Decertification The Defendants argue that decertification is necessary because determining whether all the class members' breaks were compensable work time will require the fact-finder to delve into individualized issues that predominate over common questions for Plaintiffs' on-call break claim. Specifically, they assert that to determine liability, the fact finder would need to conduct "individual mini-trials" to determine each class member's individualized interpretation of their general policies and practices and whether each class member actually experienced meal and rest break violations. The Defendants also argue that the Plaintiffs failed to provide common proof that the Defendants, via the common policies and practices alleged, compelled all class members to remain at the ready and capable of being summoned to action during their breaks. The Plaintiffs contend that the class should not be decertified because the elements of Rule 23 are still satisfied. According to them, the Defendants' contention regarding the predominance of individualized issues is erroneous because the fact finder need not determine how each class member "personally felt about Leprino's uniform policies." Instead, the ultimate question for purposes liability is whether the Defendants had an "unofficial policy of not providing breaks or created an atmosphere of discouraging class members from taking breaks." The Plaintiffs argue that Defendants had such an unofficial policy and atmosphere and, therefore, the remaining question is simply one of damages, which alone does not warrant decertification. Judge Ishii holds that the commonality and predominance requirement of Rule 23(b)(3) is satisfied because common issues still predominate over individualized issues. He says, the additional evidence submitted to the Court after the original class certification date include the Plaintiffs' expert survey and a declaration from Steve Schmidt, Leprino's Senior Director of Production Human Resources & Safety. With respect to Plaintiffs' expert survey, Judge Ishii finds that its results are consistent with the Plaintiffs' previously submitted declarations and deposition documents indicating that class members were "regularly contacted during their breaks about work-related matters, be it via radio, intercom, breakroom phone, or in person." With respect to the declaration of Steve Schmidt, it does not demonstrate that certification is inappropriate. With respect to Schmidt's declaration regarding records of documented discipline, the statement does not affirmatively demonstrate that the Defendants lacked a common policy requiring class members to respond to work-related matters during their breaks. Furthermore, the Plaintiffs' expert survey and the Schmidt Declaration do not indicate that the fact-finder will be required to conduct individual mini-trials to determine whether Leprino is liable for the alleged meal and rest break violations. In sum, Judge Ishii concludes that the commonality and predominance requirements of Rule 23(b)(3) are satisfied. Accordingly, the Defendants' motion for decertification will be denied. C. Stay Judge Ishii will exercise discretion and sua sponte stay the case pending the decision of the California Supreme Court in Naranjo v. Spectrum Security Services, Inc., Cal. S. Ct. Docket No. S258966. In Naranjo, the California Supreme Court granted review of two issues that bear upon the present case. The causes of the parties were argued and submitted to the California Supreme Court on March 1, 2022. The first issue is whether a violation of Labor Code section 226.7, which requires payment of premium wages for meal and rest period violations, gives rise to claims under Labor Code sections 203 and 226 when the employer does not include the premium wages in the employee's wage statements but does include the wages earned for meal breaks. This issue bears upon the Plaintiffs' "on-call" break claim and derivative claims because, like the plaintiff in Naranjo, the Plaintiffs allege that Leprino is liable for penalty pay under Labor Code section 203 for failing to pay class members all the wages due to them upon the end of their employment. The second issue in Naranjo examines the applicable prejudgment interest rate for unpaid premium wages owed under Labor Code section 226.7. This issue bears upon the Plaintiffs' case against Leprino because Plaintiffs also seek interest for unpaid premium wages owed under Labor Code Section 226.7. Given that the California Supreme Court's decision on the merits is forthcoming, Judge Ishii will exercise discretion and stay the case pending the California Supreme Court's decision. IV. Conclusion Accordingly, Judge Ishii denied the Defendant's motion for summary judgment and decertification. The case is stayed pending the California Supreme Court's decision in Naranjo. All currently set dates and deadlines, including the June 7, 2022 trial date, are vacated. The parties are directed to file a joint status report within 21 days of resolution of Naranjo by the California Supreme Court. A full-text copy of the Court's April 29, 2022 Order is available at https://tinyurl.com/2vymuzbm from Leagle.com. LILIUM NV: Vincent Wong Reminds Investors of June 17 Deadline ------------------------------------------------------------- Attention Lilium N.V. f/k/a Qell Acquisition Corp. ("Lilium N.V. f/k/a Qell Acquisition Corp.") (NASDAQ: LILM) shareholders: The Law Offices of Vincent Wong announce that a class action lawsuit has commenced on behalf of investors who purchased between March 30, 2021 and March 14, 2022. If you suffered a loss on your investment in Lilium N.V. f/k/a Qell Acquisition Corp., contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/lilium-n-v-f-k-a-qell-acquisition-corp-loss-submission-form?prid=26536&wire=4 ABOUT THE ACTION: The class action against Lilium N.V. f/k/a Qell Acquisition Corp. includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (1) Lilium materially overstates the design and capabilities of the Lilium Jet, an electric vertical take-off-and-landing aircraft for use in a new type of high-speed air transport system for people and goods; (2) Lilium materially overstates the likelihood for the Lilium Jet's timely certification; (3) Lilium misrepresents its ability to obtain or create the necessary batteries for the Lilium Jet; (4) the special purpose acquisition company merger would not and did not generate enough cash to commercially launch the Lilium Jet; (5) Qell Acquisition Corp. did not engage in proper due diligence regarding its merger with Lilium GmbH; and (6) as a result, Defendants' public statements and statements to journalists were materially false and/or misleading at all relevant times. DEADLINE: June 17, 2022 Aggrieved Lilium N.V. f/k/a Qell Acquisition Corp. investors only have until June 17, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] LIVE NATION: Scott Among Defendants in Astroworld Class Action -------------------------------------------------------------- Stephanie Nolasco, writing for Yahoo!News, reports that Travis Scott faces a class-action lawsuit. While Scott has offered to pay for the funerals of the victims who were lost, several families have declined the offer. A total of 10 people were killed in a crowd rush at last year's Astroworld Festival tragedy in Houston. In March, Scott announced the launch of Project HEAL, a $5 million initiative that includes funding for an effort to address safety challenges for festivals and large-scale events. Houston police and federal officials have been investigating whether Scott, concert promoter Live Nation and others had put in place sufficient safety measures. "My team and I created Project HEAL to take much needed action towards supporting real solutions that make all events the safest spaces they can possibly be. I will always honor the victims of the Astroworld tragedy who remain in my heart forever," Scott wrote on Instagram. Those who died at the concert ranged in age from 9 to 27. Roughly 300 people were injured and treated on site, and 25 were taken to hospitals. Those killed died from compression asphyxia. [GN] LTL MANAGEMENT: Court Enjoins Securities Suit Trial in SDCERA Suit ------------------------------------------------------------------ In the case, LTL Management, LLC, Debtor. LTL Management, LLC, Chapter 11, Plaintiff v. San Diego County Employees Retirement Association, Individually and on Behalf of All Others Similarly Situated, Defendants, Case No. 21-30589 (MBK), Adv. Pro. No. 22-01073 (MBK) (D.N.J.), Judge Michael B. Kaplan of the U.S. Bankruptcy Court for the District of New Jersey issued a Memorandum Opinion: a. granting the Debtor's Motion for an Order: (I) Preliminarily Enjoining the Prosecution of the Securities Class Action; and (II) Granting a Temporary Restraining Order Pending a Final Hearing; and b. resolving the adversary proceeding in favor of the Debtor without prejudice. I. Background The matter comes before the Court by way the Debtor's bankruptcy case (Case No. 21-30589) and subsequent adversary proceeding (Adv. Pro. No. 22-01073) and the Motion. The Court has fully considered the submissions of the parties and the arguments set forth on the record at a hearing held on April 12, 2022. On Oct. 14, 2021, LTL filed a voluntary petition for chapter 11 relief in the U.S. Bankruptcy Court for the Western District of North Carolina. LTL is an indirect subsidiary of Johnson & Johnson ("J&J") and traces its roots back to Johnson & Johnson Baby Products, Company, a New Jersey company incorporated in 1970 as a wholly owned subsidiary of J&J. In relevant part, as the result of intercompany transactions, one of J&J's corporate subsidiaries, Johnson & Johnson Consumer Inc. ("Old JJCI") assumed responsibility for all claims alleging that J&J's talc-containing products caused ovarian cancer and mesothelioma. On Oct. 12, 2021, Old JJCI engaged in a series of transactions (the "2021 Corporate Restructuring") through which it ceased to exist and two new companies, LTL and Johnson & Johnson Consumer Inc. ("New JJCI"), were formed. The alleged purpose of this restructuring was to "globally resolve talc-related claims through a chapter 11 reorganization without subjecting the entire Old JJCI enterprise to a bankruptcy proceeding." As a result of the restructuring, LTL assumed responsibility for all of Old JJCI's talc-related liabilities. Through the restructuring, LTL also received Old JJCI's rights under a funding agreement. Under the Funding Agreement, J&J and New JJCI are obligated to pay, inter alia, "any and all costs and expenses" LTL incurs during its bankruptcy case, "including the costs of administering the Bankruptcy Case" to the extent necessary. LTL filed for bankruptcy under chapter 11 in the Western District of North Carolina on Oct. 14, 2021. One week later, the Debtor initiated an adversary proceeding (the "Talc Adversary Proceeding"), seeking declaratory and injunctive relief against plaintiffs who had filed federal and state actions against the Debtor's affiliates and other entities for talc-related claims. By way of the Talc Adversary Proceeding, the Debtor sought an order declaring that the automatic stay applies to those actions against nondebtors or, in the alternative, to enjoin such actions and grant a temporary restraining order pending a final hearing. The Debtor simultaneously filed a motion requesting a preliminary injunction enjoining the prosecution of actions outside of the chapter 11 case on account of the same talc claims that exist against the Debtor in the chapter 11 case. Ultimately, the case was transferred to the District of New Jersey, and the Debtor supplemented its initial brief and amended and restated its arguments in support of the relief sought to reflect Third Circuit precedent. Several interested parties opposed the motion. Additionally, two separate parties filed motions to dismiss the underlying bankruptcy, alleging it had been filed in bad faith. The Court heard arguments on the motion for preliminary injunction in the Talc Adversary Proceeding contemporaneously with arguments on pending motions to dismiss the bankruptcy during evidentiary hearings held on Feb. 14-18, 2022. Shortly thereafter, on Feb. 25, 2022, the Court denied the motions to dismiss in the underlying bankruptcy case and granted the motion for preliminary injunction in the Talc Adversary Proceeding. The Debtor then commenced the instant adversary proceeding (the "Adversary Proceeding") on March 7, 2022 against San Diego County Employees Retirement Association ("SDCERA"). Simultaneously therewith, the Debtor filed the Motion requesting injunctive relief. The Adversary Proceeding and Motion seek to enjoin the continued prosecution of a securities action (the "Securities Action") pending in the U.S. District Court for the District of New Jersey against certain non-debtor individuals and affiliates of the Debtor. The defendants in the Adversary Proceeding are members of a putative plaintiff class in the Securities Action consisting of individuals who purchased J&J stock during the period from Feb. 22, 2013, through Dec. 13, 2018 (the "Securities Claimants"). SDCERA is the lead plaintiff for that putative plaintiff class. The Debtor argues that the claims asserted in the Securities Action overlap with issues at the heart of the claims being resolved in the bankruptcy proceeding (the "Talc Claims"). Accordingly, the Debtor asserts that continuation of the Securities Action will impair its ability to resolve the Talc Claims in the chapter 11 bankruptcy case. The Securities Claimants oppose the Motion and posit that the Debtor relies on a single basis for its motion: "record taint." The Securities Claimants assert that there exists no precedent for an injunction premised solely on the possibility of record taint. Moreover, the Securities Claimants contend that continued litigation does not pose a risk of record taint and that the Debtor has not met its burden of demonstrating that an injunction is warranted. II. Discussion A. The Securities Action After filing for bankruptcy, the Debtor did not immediately request to halt the Securities Action. Instead, the parties proceeded with discovery for approximately five months before the Debtor filed the instant Adversary Proceeding. Since the date the bankruptcy petition was filed, the Securities Claimants have conducted more than 20 depositions in the Securities Actions. According to the Securities Claimants, "there is little fact discovery left to conduct in the Securities Action." The counsel for the Securities Claimants represented during the hearing on April 12, 2022 that the remaining discovery will be comprised mostly of expert discovery and dispositive motion practice. B. Authority and Standard for Extension of Stay to Nondebtors Judge Kaplan discussed its authority to stay litigation against nondebtor third parties in its Opinion granting a preliminary injunction in the Talc Adversary Proceeding. Judge Kaplan will not repeat that lengthy discussion and, instead, incorporates it by reference. In sum, he concludes that Section 362(a), Section 105(a), or a court's inherent powers can each serve as independent bases for extension of a stay to nondebtor third parties. Nevertheless, because certain courts in this circuit still view the source of authority to extend the automatic stay as an open-ended question, he will utilize the same three-step inquiry outlined in its prior decision to address the instant Motion. Namely, a bankruptcy court's extension of a stay to a nondebtor third party is appropriate where: (1) the bankruptcy court has jurisdiction to issue the injunction; (2) the stay is properly extended to the nondebtor(s) under Section 362(a); and (3) an injunction under Section 105(a) is warranted. Judge Kaplan concludes that "unusual circumstances" are present warranting an extension of the automatic stay to the Protected Parties under Section 362(a)(3). To the extent Section 362(a) does not serve as an independent basis for extension of the stay to nondebtor parties, he determines that a preliminary injunction under Section 105(a) extending the automatic stay is appropriate. Judge Kaplan, thus, grants the Debtor's Motion and resolves the instant adversary proceeding in the Debtor's favor. However, as with the resolution of the Talc Adversary Proceeding, he concludes that taking measures in smaller steps is prudent. He will revisit continuation of the automatic stay on June 29, 2022, which is the date the Court intends to revisit the preliminary injunction in the Talc Adversary Proceeding. III. Conclusion Judge Kaplan grants the Debtor's Motion and resolves the adversary proceeding in favor of the Debtor without prejudice to revisiting the continuation of the preliminary injunction at a later date as discussed. The Debtor is directed to submit a proposed form of Order consistent with Judge Kaplan's Opinion. A full-text copy of the Court's April 29, 2022 Memorandum Opinion is available at https://tinyurl.com/2u4p47yy from Leagle.com. MANDIANT INC: Misleads Stockholders to Approve Merger, White Says ----------------------------------------------------------------- CHERYL WHITE, individually and on behalf of all others similarly situated, Plaintiff v. MANDIANT, INC., ENRIQUE SALEM, KEVIN MANDIA, KIMBERLY ALEXY, SARA C. ANDREWS, RONALD E.F. CODD, ARTHUR W. COVIELLO, JR., ADRIAN MCDERMOTT, VIRAL PATEL, and ROBERT SWITZ, Defendants, Case No. 1:22-cv-00515 (E.D. Va., May 10, 2022) is a class action against the Defendants for violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, the Defendants authorized the filing of a materially false and misleading definitive proxy statement on Schedule 14A with the U.S. Securities and Exchange Commission (SEC) to convince Mandiant's public stockholders to vote in favor of a merger transaction between the company and Google LLC. Specifically, the proxy statement fails to disclose: (i) all interests of Mandiant directors and officers in the merger that differ from or are in addition to the interests of Mandiant's public stockholders, (ii) whether or not there were any discussions between Google and Kevin Mandia, Mandiant's chief executive officer (CEO), generally concerning the prospect of post-merger employment prior to approval of the material terms of the merger by the board, and (iii) the role of Goldman Sachs & Co. LLC, financial advisor on the merger, as one of the lead joint bookrunners for a $10 billion convertible note offering by Alphabet Inc. in August 2020 on which Goldman Sachs earned approximately $7.25 million. The Plaintiff seeks to enjoin the Defendants from proceeding with the stockholder vote on June 3, 2022 until such material disclosure violations are cured to enable Mandiant's stockholders to cast informed votes with respect to the merger. Mandiant, Inc. is a provider of intelligence-based cybersecurity solutions and services, with its principal executive offices located at 11951 Freedom Drive, 6th Floor, Reston, Virginia. [BN] The Plaintiff is represented by: Alexander P. Faig, Esq. Samuel C. Moore, Esq. LAW OFFICE OF SAMUEL C. MOORE, PLLC 526 King St., Suite 506 Alexandria, VA 22314 Telephone: (703) 535-7809 Facsimile: (571) 223-5234 E-mail: scmoore@scmoorelaw.com afaig@scmoorelaw.com - and – Joshua E. Fruchter, Esq. WOHL & FRUCHTER LLP 25 Robert Pitt Drive, Suite 209G Monsey, NY 10952 Telephone: (845) 290-6818 Facsimile: (718) 504-3773 E-mail: jfruchter@wohlfruchter.com MARRIOTT INT'L: Moledina Sues Over Illegal Conversations' Recording ------------------------------------------------------------------- FAISAL MOLEDINA, Individually and On Behalf of All Others Similarly Situated v. MARRIOTT INTERNATIONAL, INC., a Delaware corporation, Case No. 2:22-cv-03059 (C.D. Cal., May 6, 2022) is a class action for damages and injunctive relief against the defendant Marriott International, for the Defendant's unauthorized and illegal recordings of conversations with the Plaintiff without any notification or warning to Plaintiff or Class Members, causing Plaintiff and Class Members damages and invasion of their privacy, in violation of the California Invasion of Privacy Act. On April 14, 2022, at approximately 9:40 p.m. PST, Plaintiff called Le Meridien Dallas, The Stoneleigh's telephone number, 214-871-7111, using his cordless telephone. The Defendant owns and operates the Hotel, as well as the Hotel's phone number, 214-871-7111. Having dialed the Hotel's phone number, Plaintiff was presented with several call options. After listening to the Hotel's call options, Plaintiff pressed "1" to make reservations at the Hotel. At no point during the call to the Hotel's phone number was there any form of recording disclosure nor any beeping sounds to indicate to Plaintiff that he was being recorded by Defendant, the lawsuit says. The Plaintiff was eventually connected with one of Defendant's live agents to make his hotel reservation. The Plaintiff told Defendant's live agent that he wanted to know whether it was less expensive for him to reserve a room with the Hotel directly than it was to reserve a room online through a third-party website. In response to Plaintiff's inquiry, the Defendant's agent indicated that Defendant had a price-match guarantee in case Plaintiff was able to find better rates for his reservation through a third-party website. Not wanting to risk denial of a price-match, Plaintiff asked the agent whether the call was being recorded. In response, Defendant's agent attempted to evade Plaintiff's question, which prompted the Plaintiff to ask a second time whether Plaintiff was being recorded. In response, the Defendant's agent again evaded Plaintiff's question, and thus the Plaintiff asked a third and final time whether Plaintiff was being recorded. Finally, after Plaintiff's third attempt at determining whether his call was being recorded, Defendant's agent responded by saying, "yes, this call is being recorded," the suit adds. The Plaintiff is a member of and seeks to represent a "Class" consisting of and as follows: "All persons in California whose inbound and outbound cordless and/or cellular telephone conversation(s) were audio recorded by the Defendant and/or its employees and/or agent/s within one year prior to the filing of this action. Excluded from the Class are: (1) Defendant, any entity or division in which Defendant has a controlling interest, and their legal representatives, officers, directors, assigns, and successors; (2) the Judge to whom this case is assigned and the Judge's staff; and (3) those persons who have suffered personal injuries as a result of the facts alleged.[BN] Marriott is an American multinational company that operates, franchises, and licenses lodging including hotel, residential, and timeshare properties. It is headquartered in Bethesda, Maryland. The Plaintiff is represented by: Abbas Kazerounian, Esq. Jason A. Ibey, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com jason@kazlg.com MARRIOTT INTERNATIONAL: Brown Seeks Blind's Online Store Access --------------------------------------------------------------- LAMAR BROWN, on behalf of himself and all others similarly situated, Plaintiff v. MARRIOTT INTERNATIONAL, INC., Defendant, Case No. 1:22-cv-03764 (S.D.N.Y., May 9, 2022) is a class action against the Defendant for violations of the Americans with Disabilities Act, the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. According to the complaint, the Defendant has failed to design, construct, maintain, and operate its website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. The Defendant's website, https://www.westinstore.com, contains access barriers which hinder the Plaintiff and Class members to enjoy the benefits of its online goods, content, and services offered to the general public through the website. These access barriers include, but not limited to: (a) lack of alt-text on graphics, (b) inaccessible drop-down menus, (c) lack of navigation links, (d) lack of adequate prompting and labeling, (e) denial of keyboard access for some elements on the website, and (f) requirement to make purchases exclusively with the mouse. The Plaintiff and Class members seek permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's website will become and remain accessible to blind and visually-impaired individuals. Marriott International, Inc. is an online retail company doing business in New York. [BN] The Plaintiff is represented by: Mars Khaimov, Esq. MARS KHAIMOV LAW, PLLC 108-26 64th Avenue, Second Floor Forest Hills, NY 11375 Telephone: (929) 324-0717 Facsimile: (929) 333-7774 E-mail: mars@khaimovlaw.com MATCHABAR INC: Abreu Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against MatchaBar, Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. MatchaBar, Inc., Case No. 1:22-cv-03611 (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. MatchaBar -- https://www.matchabar.co/ -- is a family-owned business run by two brothers committed to going above and beyond to bring the world a quality matcha product.[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 MAURICE BADLER: Picon Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Maurice Badler Fine Jewelry, Ltd. The case is styled as Yelitza Picon, on behalf of herself and all other persons similarly situated v. Maurice Badler Fine Jewelry, Ltd., Case No. 1:22-cv-03777 (S.D.N.Y., May 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Maurice Badler -- https://www.badler.com/ -- specializes in fine custom designed and contemporary designer jewelry.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal MEDSCAN LABORATORY: Ristine Files Suit in D. North Dakota --------------------------------------------------------- A class action lawsuit has been filed against Medscan Laboratory, Inc. The case is styled as Jill Ristine, on behalf of all others similarly situated v. Medscan Laboratory, Inc. doing business as: Adaptive Health Integrations, Case No. 1:22-cv-00079-CRH (D.N.D., May 6, 2022). The nature of suit is stated Other Contract for Breach of Contract. MedScan Laboratory -- https://www.medscanlab.com/ -- is a family-owned, clinical testing laboratory that offers medical testing services for health care.[BN] The Plaintiff is represented by: McLain J. Schneider, Esq. Scott A. Haider, Esq. SCHNEIDER, SCHNEIDER & SCHNEIDER 815 3rd Ave. S. Fargo, ND 58103 Phone: (701) 235-4481 Email: mac@schneiderlawfirm.com scott@schneiderlawfirm.com MERCHANDISING SOLUTIONS: Faces Rodwell FLSA Suit in W.D.N.C. ------------------------------------------------------------ ANTRONE RODWELL and SHIKEERA PAYNE, individually and on behalf of all others similarly situated, Plaintiffs v. MERCHANDISING SOLUTIONS GROUP, INC. and DOLGENCORP, LLC, Defendants, Case No. 3:22-cv-00208 (W.D.N.C., May 10, 2022) is a class action against the Defendant for its failure to compensate the Plaintiffs and similarly situated traveling merchandisers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act and the North Carolina Wage and Hour Act. Plaintiffs Rodwell and Payne worked for the Defendants as traveling merchandisers from approximately April 2021 to June 2021 and from approximately March 4, 2021 to June 15, 2021, respectively. Merchandising Solutions Group, Inc. is a company that provides merchandising services, headquartered in North Wilkesboro, North Carolina. Dolgencorp, LLC is an operator of merchandise stores, headquartered in Goodlettsville, Tennessee. [BN] The Plaintiffs are represented by: Josef F. Buenker, Esq. THE BUENKER LAW FIRM P.O. Box 10099 Houston, TX 77206 Telephone: (713) 868-3388 Facsimile: (713) 683-9940 E-mail: jbuenker@buenkerlaw.com - and – Bert J. Miano, Esq. MIANO LAW PC 3116 Weddington Road, Suite 900-1049 Matthews, NC 28105-9407 Telephone: (704) 275-7199 Facsimile: (704) 630-7199 E-mail: bmiano@mianolaw.com MERCURY AIR: Fierro PAGA Suit Alleges Unpaid Wages in California ---------------------------------------------------------------- NOE FIERRO, individually and on behalf of all others similarly situated, Plaintiff v. MERCURY AIR CARGO, LLC and DOES 1 through 100, inclusive, Defendants, Case No. 22STCV15099 (Cal. Super., Los Angeles Cty., May 6, 2022) is a class action against the Defendants for unpaid wages and penalties pursuant to California Labor Code's Private Attorneys General Act. The Plaintiff has been employed by Defendants as a non-exempt employee since approximately November 15, 2017. Mercury Air Cargo, LLC is a freight forwarding service company in Los Angeles, California. [BN] The Plaintiff is represented by: Scott M. Lidman, Esq. Elizabeth Nguyen, Esq. Milan Moore, Esq. LIDMAN LAW, APC 2155 Campus Drive, Suite 150 El Segundo, CA 90245 Telephone: (424) 322-4772 Facsimile: (424) 322-4775 E-mail: slidman@lidmanlaw.com enguyen@lidmanlaw.com mmoore@lidmanlaw.com - and – Paul K. Haines, Esq. HAINES LAW GROUP, APC 2155 Campus Drive, Suite 180 El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile: (424) 292-2355 E-mail: phaines@haineslawgroup.com MI CASA: Faces Pardini Suit Over Failure to Properly Pay Overtime ----------------------------------------------------------------- The case, ALEXANDER PARDINI, individually and on behalf of all others similarly situated, Plaintiff v. MI CASA SU CASA, LLC, an Arizona Limited Liability Company, Defendant, Case No. 2:22-cv-00796-MTL (D. Ariz., May 10, 2022) is brought by the Plaintiff against the Defendant for its alleged failure to pay overtime wages and to calculate overtime based on employees' regular rates in violations of the Fair Labor Standards Act and the Arizona Wage Act. The Plaintiff was employed by the Defendant as an hourly paid employee from June 2021 to January 2022. The Plaintiff claims that the Defendant did not properly compensate him despite normally working more than 40 hours in a week. Specifically, the Defendant paid him at the same hourly rate of $15 per hour for all 105.10 hours worked for the bi-monthly pay period ending May 30, 2021. The Plaintiff asserts that the Defendant failed to compute his overtime rate based on all remuneration paid to him at the rate of one and one-half times his regular rate of pay for all hours he worked as required by the FLSA. ON behalf of himself and all other similarly situated employees, the Plaintiff seeks to recover all unpaid overtime wages in an amount equal to one and one-half times their regular rates of pay, plus liquidated damages, attorney's fees and costs, pre- and post-judgment interest at the maximum legal rates, and other relief as may be necessary and appropriate. Mi Casa Su Casa, LLC provides residential care services. [BN] The Plaintiff is represented by: Samuel R. Randall, Esq. RANDALL LAW PLLC 4742 N 24th Street, Suite 300 Phoenix, AZ 85016 Tel: (602) 328-0262 E-mail: srandall@randallslaw.com MISAHARA JEWELRY: Picon Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Misahara Jewelry, LLC. The case is styled as Yelitza Picon, on behalf of herself and all other persons similarly situated v. Misahara Jewelry, LLC, Case No. 1:22-cv-03778 (S.D.N.Y., May 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Misahara Jewelry -- https://misahara.com/ -- offers handcrafted fine jewelry in New York City.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal NATERA INC: Kessler Topaz Files Securities Class Action in Texas ---------------------------------------------------------------- Marcelo Teixeira, writing for Reuters, reports that law firm Kessler Topaz Meltzer & Check LLP on May 1 said it had filed a securities class action lawsuit against pharmaceutical company Natera Inc on behalf of shareholders, according to a statement. The law firm said the main justification for the lawsuit filed in the U.S. district court of the Western district of Texas was that Natera, which specializes in genetic testing and diagnostics, provided information about the efficacy of its tests that have not proved accurate. "Natera said that its tests are much more reliable than it appears they really are," Kessler Topaz said in the statement. Natera, based in Austin, Texas, did not return a request for comment on May 1. [GN] NATERA INC: Vincent Wong Reminds of June 27 Deadline ---------------------------------------------------- Attention Natera, Inc. ("Natera") (NASDAQ: NTRA) shareholders: The Law Offices of Vincent Wong announce that a class action lawsuit has commenced on behalf of investors. This lawsuit is on behalf of a class of all persons and entities who purchased or otherwise acquired Natera common stock between February 26, 2020, and April 19, 2022, inclusive. If you suffered a loss on your investment in Natera, contact us about potential recovery by using the link below. There is no cost or obligation to you. https://www.wongesq.com/pslra-1/natera-inc-loss-submission-form?prid=26541&wire=4 ABOUT THE ACTION: The class action against Natera includes allegations that the Company made materially false and/or misleading statements and/or failed to disclose that: (1) the Company's non-invasive prenatal test, Panorama, was not reliable and resulted in high rates of false positives; (2) the Company's screening test for kidney transplant failure, Prospera, did not have superior precision compared to competing tests; (3) as a result of defendants' false and misleading claims about Natera's technology, the Company was exposed to substantial legal and regulatory risks; (4) Natera relied upon deceptive sales and billing practices to drive its revenue growth; and (5) as a result of the foregoing, defendants' statements about the company's business, operations, and prospects lacked a reasonable basis. DEADLINE: June 27, 2022 Aggrieved Natera investors only have until June 27, 2022 to request that the Court appoint you as lead plaintiff. You are not required to act as a lead plaintiff in order to share in any recovery. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 E-Mail: vw@wongesq.com [GN] NATIONAL COLLEGIATE STUDENT: Browne Suit Removed to D. New Jersey ----------------------------------------------------------------- The case styled as Lesroy E. Browne, on behalf of himself and those similarly situated v. National Collegiate Student Loan Trust a/k/a National Collegiate Master Student Loan Trust I; National Collegiate Student Loan Trust 2003-1; National Collegiate Student Loan Trust 2004-1; National Collegiate Student Loan Trust 2004-2; National Collegiate Student Loan Trust 2005-1; National Collegiate Student Loan Trust 2005-2; National Collegiate Student Loan Trust 2005-3; National Collegiate Student Loan Trust 2006-1; National Collegiate Student Loan Trust 2006-2; National Collegiate Student Loan Trust 2006-3; National Collegiate Student Loan Trust 2006-4; National Collegiate Student Loan Trust 2007-1; National Collegiate Student Loan Trust 2007-2; National Collegiate Student Loan Trust 2007-3; National Collegiate Student Loan Trust 2007-4; Wilmington Trust Company As Trustee For National Collegiate Student Loan Trust; U.S. Bank, N.A. in its role as special servicer for the National Collegiate Student Loan Trust; Transworld Systems, Inc.; John Does 1 to 15; a class of Defendants similarly situated to the Defendant, National Collegiate Student Loan Trust, Case No. HUD-L-001598 was removed from the Hudson County, New Jersey, to the U.S. District Court for the District of New Jersey on May 9, 2022. The District Court Clerk assigned Case No. 2:22-cv-02713 to the proceeding. The nature of suit is stated as Other Contract. The National Collegiate Student Loan Trust is the household name for 15 trusts.[BN] The Plaintiff appears pro se. The Defendants are represented by: Christopher B. Fontenelli, Esq. LOCKE LORD LLP 44 Whippany Road, Suite 280 Morristown, NJ 07960 Phone: (973) 520-2301 Email: cfontenelli@lockelord.com NEIMAN MARCUS: Zaimi Suit Removed to C.D. California ---------------------------------------------------- The case styled as Christina Zaimi, individually, and on behalf of all others similarly situated v. The Neiman Marcus Group LLC, Case No. 22STCV01421 was removed from the Los Angeles Superior Court, to the U.S. District Court for the Central District of California on May 4, 2022. The District Court Clerk assigned Case No. 2:22-cv-02972 to the proceeding. The nature of suit is stated as Other Contract. Neiman Marcus Group, Inc., originally Neiman-Marcus -- https://www.neimanmarcusgroup.com/ -- is an American chain of luxury department stores owned by the Neiman Marcus Group, headquartered in Dallas, Texas.[BN] The Plaintiff appears pro se. The Defendant is represented by: Ann Marie Mortimer, Esq. HUNTON ANDREWS KURTH LLP 550 South Hope Street Suite 2000 Los Angeles, CA 90071-2627 Phone: (213) 532-2000 Fax: (213) 532-2020 Email: amortimer@huntonAK.com NELSON LEWIS: Preece Sues Over Bore Crew Workers' Unpaid Overtime ----------------------------------------------------------------- GREGORY PREECE, individually and on behalf of all others similarly situated, Plaintiff v. NELSON LEWIS, INC., Defendant, Case No. 1:22-cv-00445 (W.D. Tex., May 10, 2022) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated bore crew and pipe crew workers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. Mr. Preece was employed by the Defendant as a bore crew worker and dump truck driver from approximately March 2020 until approximately September 2021. Nelson Lewis, Inc. is a construction company, with its principal office in Marble Falls, Burnet County, Texas. [BN] The Plaintiff is represented by: Aaron Johnson, Esq. FAIR LABOR LAW 314 E. Highland Mall Blvd., Ste. 401 Austin, TX 78752 Telephone: (512) 277-3505 Facsimile: (512) 277-3254 E-mail: ajohnson@fairlaborlaw.com NESTLE PURINA: Court Dismisses in Part Barker's 1st Amended Suit ---------------------------------------------------------------- In the case, MICHELLE BARKER, on behalf of herself and all those similarly situated, Plaintiff v. NESTLE PURINA PETCARE COMPANY, Defendant, Case No. 4:21-cv-01075-MTS (E.D. Mo.), Judge Matthew T. Schelp of the U.S. District Court for the Eastern District of Missouri, Eastern Division, grants in part and denies in part the Defendant's Motion to Dismiss Plaintiff's First Amended Complaint. I. Background Defendant Nestle manufactures, distributes, markets, and sells pet foods. Relevant to this suit are two varieties of dog food they sell, Purina Pro Plan Adult Sensitive Skin & Stomach Salmon & Rice Formula and Purina Pro Plan Adult Sensitive Skin & Stomach Lamb & Oat Meal Formula. It represents that these two products contain no corn, wheat, or soy. The Plaintiff alleges that she paid a premium for these two products purportedly free of corn, wheat, and soy based on that representation. But she alleges that, in reality, both Pro Plan formulas "contain significant amounts of wheat." The Plaintiff brought the putative class action asserting five counts: Breach of Express Warranty (Count I); Breach of Implied Warranty of Merchantability (Count II); Unjust Enrichment (Count III); Missouri Merchandising Practices Act ("MMPA") (Count IV); and Georgia Fair Business Practices Act ("GFBPA") (Count V). In the instant Motion, the Defendant seeks to dismiss the Plaintiff's First Amended Complaint in its entirety for numerous reasons. Having subject matter jurisdiction to entertain the action under the Class Action Fairness Act, the Court considers each of the Defendant's arguments. II. Discussion a. Standing The Defendant first asserts that the Plaintiff lacks standing to pursue her claims because she has not alleged a particularized, concrete injury, which would mean the action is not a case or controversy within the Court's power to hear. Judge Schelp holds that the Plaintiff has alleged that dog food she purchased contained significant amounts of wheat, contrary to the packaging's claims. Thus, her allegations do establish that "all or even most" of these products she purchased contained misrepresented ingredients. At this stage, those allegations were sufficient to allege an injury in fact. Therefore, the Plaintiff has established her standing to bring the action at this stage. b. Deception and Injury The Defendant next argues that the Plaintiff failed to state a claim because she failed plausibly to allege that it engages in a deceptive act or unfair practice and failed plausibly to allege injury or damage. As recited, however, the Plaintiff's First Amended Complaint, subject to the provisions in Federal Rule of Civil Procedure 11(b), repeatedly alleges that the Defendant's Pro Plan products at issue contain significant amounts of wheat though it markets and labels them as having no wheat. At this stage of the litigation, the Plaintiff has the benefit of having her properly pleaded allegations taken as true, and the Plaintiff plausibly has alleged deception and injury. Consequently, the Defendant's Motion to dismiss on this ground will be denied. c. Propriety of the MMPA Claim Next, the Defendant argues that the First Amended Complaint fails to allege a violation of the MMPA because the Plaintiff does not allege an unlawful practice in connection with a sale or advertisement of any merchandise in or from Missouri. The Plaintiff, a resident and citizen of Georgia, "encountered the allegedly misleading advertising, purchased the product, and ultimately was disappointed with it," all in her home state of Georgia. The Plaintiff argues that the MMPA applies because the "Defendant was founded and headquartered in Missouri, where it designs, manufactures, distributes, labels, advertises, and sells" the products at issue. But, Judge Schelp holds that it is "not enough" when the "design of the advertisement" is the "only relevant action taking place in Missouri." Every part of the challenged transactions took place" outside Missouri. There are no more facts alleged regarding the sale of the Defendant's Pro Plan dog food to a party outside Missouri than were present in the sale of Emerson's vacuum cleaner to a party outside Missouri. d. Standing for Injunctive Relief Next, the Defendant maintains that the Plaintiff lacks standing to seek injunctive relief because she is now aware of the Defendant's alleged deception and plausibly has not alleged a likelihood of future injury. Standing to seek injunctive relief "requires a showing that the plaintiff faces a threat of ongoing or future harm." The Plaintiff argues that her lone allegation that "she would consider buying" the Pro Plan products at issue if they "actually contained" no wheat provides her standing to seek injunctive relief. But, Judge Schelp concludes that her "some day" intention to "consider buying" again the products at issue is not enough. The Plaintiff is the master of her complaint, yet she did not allege she would buy or even that she desired to buy the product again, which is, if anything, the bare minimum. Even when drawing all reasonable inferences in Plaintiff's favor, the appropriate review at this stage, the Plaintiff lacks standing to seek injunctive relief based on her allegations in the First Amended Complaint. Thus,Judge Schelp will dismiss all the Plaintiff's claims for injunctive relief. e. Breach of Warranty The Plaintiff seems to agree that Georgia law applies to her claims for breach of warranty in the case. But the parties disagree on how Georgia law applies to the facts alleged. The Defendant argues that the Plaintiff's express and implied warranty claims fail as a matter of law because the Plaintiff lacks privity with Defendant. Judge Schelp concludes that the Plaintiff has pleaded sufficient facts to state a claim for breach of express and implied warranty under Georgia law at this early stage. The Plaintiff's breach of express warranty (Count I) and breach of implied warranty of merchantability (Count II) survive. f. Unjust Enrichment Like her breach of warranty claims, the Plaintiff does not discuss what jurisdiction's substantive law applies to her claim for unjust enrichment. Nor did the Plaintiff meaningfully respond to the Defendant's argument that Georgia's substantive law applies to this claim. Rather, the Plaintiff cited to what "courts in this district routinely find" regarding unjust enrichment. But what courts in this District do is of little help if the courts are applying the substantive law of a different jurisdiction than the substantive law at issue in the case. Given that the Plaintiff is a citizen of Georgia and purchased the products at issue in Georgia, the Defendant's unanswered argument that Georgia has the most significant relationship, and that its substantive law therefore applies to the Plaintiff's unjust enrichment claims, is well taken. The Plaintiff failed to respond to the Defendant's argument that Georgia law forecloses her unjust enrichment claim because she did not confer a direct benefit on the Defendant. With no argument from the Plaintiff to the contrary, Judge Schelp will dismiss her unjust enrichment claim, Count III. g. GFBPA Class The Defendant next argues that the Plaintiff cannot assert GFBPA claims on behalf of a Georgia class because the GFBPA prohibits individual litigants from bringing suit "in a representative capacity." Though Georgia's statute seemingly prohibits a GFBPA claim from being brought in a representative capacity, Federal Rule of Civil Procedure 23 allows members of a class to sue "as representative parties on behalf of all members." The question then is which provision is displaced in the case, the statute that would prohibit it or the Federal Rule that would allow it, and the answer is not patently clear. Because some of the Plaintiff's other class claims survive the Motion to Dismiss and will proceed, and the Plaintiff's individual claim under the GFBPA also will survive, Judge Schelp will leave the resolution of this conflicted issue for another day when the parties can provide focused briefing on this issue. h. Nationwide Class Allegations Lastly, the Defendant argues that the Plaintiff cannot assert claims on behalf of a nationwide class, and, therefore, the Court should strike the First Amended Complaint's nationwide class allegations. Judge Schelp says the Defendant makes a compelling argument that nationwide class certification on any of the Plaintiff's claims would be impossible because she could not prove predominance given that an individualized choice of law analysis would need to be applied to each individual plaintiff's claim. That is, each Plaintiff's claim in the action would need to be analyzed under Missouri's choice of law analysis. Applying Missouri's choice of law rules to each Plaintiff's claims would lead to many different states' substantive law applying to the underlying claims. These substantive laws vary from state to state. Nevertheless, the oft-repeated maxim regarding striking a party's pleading is true; it "is an extreme and disfavored measure." So, while he has "serious doubts," to put it lightly, that Plaintiff will be able to satisfy the predominance requirement of a nationwide class, Judge Schelp also is hesitant to strike the nationwide class allegations at this the earliest possible stage. He finds that the decision as to the survival of the nationwide class allegations in the case should be made after allowing the Plaintiff to conduct some discovery or on motion to the Court wherein the parties can provide additional briefing to explain whether the prerequisites of Rule 23 can be satisfied. Given the severity of striking class allegations at this early stage of the litigation, Judge Schelp -- out of caution -- will decline to strike the nationwide class allegations at this time. III. Conclusion For the reasons explained, Judge Schelp grants the Defendant's Motion and dismiss the unjust enrichment claim (Count III) and the Missouri Merchandising Practices Act claim (Count IV). Further, he grants the Defendant's Motion and dismisses all the Plaintiff's claims for injunctive relief. He denies the Motion in all other respects. Accordingly, the Defendant's Motion to Dismiss is granted in part and denied in part consistent with the Memorandum and Order. A full-text copy of the Court's April 29, 2022 Memorandum & Order is available at https://tinyurl.com/3ud4zvvs from Leagle.com. NEW HARVEST COFFEE: Abreu Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against New Harvest Coffee Roasters, Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. New Harvest Coffee Roasters, Inc., Case No. 1:22-cv-03616 (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. New Harvest Coffee Roasters -- https://newharvestcoffee.com/ -- is a specialty coffee roasters located in Rhode Island.[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 NHS MANAGEMENT: Griggs Files Suit in N.D. Alabama ------------------------------------------------- A class action lawsuit has been filed against NHS Management LLC. The case is styled as Shymikka Griggs, individually and on behalf of all others similarly situated v. NHS Management LLC, Case No. 2:22-cv-00565-RDP (N.D. Ala., May 4, 2022). The nature of suit is stated as Other Personal Property for Personal Injury. NHS Management, LLC -- https://www.nhsmanagement.com/ -- provides administrative and consulting services for individual facilities and companies across the southeast.[BN] The Plaintiff is represented by: Taylor Bartlett, Esq. HENINGER GARRISON DAVIS LLC 2224 1st Avenue North Birmingham, AL 35203 Phone: (205) 326-3336 Email: taylor@hgdlawfirm.com NOSWEAT PERFORMANCE: Abreu Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against NoSweat Performance, Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. NoSweat Performance, Inc., Case No. 1:22-cv-03603 (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. NoSweat -- https://nosweatco.com/ -- is a disposable performance liner that sticks on the inside of any hat, helmet or hard hat and soaks up sweat.[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 NYS OFFICE OF INFORMATION: Stiegman Appeals Case Dismissal ---------------------------------------------------------- Plaintiff Victor Karl Daniel Stiegman filed an appeal from a court ruling entered in the lawsuit entitled Stiegman v. New York State Office of Information Technology Services, Case No. 19-cv-18, in the U.S. District Court for the Northern District of New York (Syracuse). The case, filed on January 4, 2019, is about an alleged unlawful conspiracy involving a New York State agency, and other accomplices, which have attempted to deprive a discrete and insular minority, a class of older individuals with a disability, of protected rights in violation of the U.S. Constitution and Federal law. The named Plaintiff, Mr. Stiegman, the proposed class representative, is a former New York State employee, who was allegedly discriminated and retaliated against due to his age and disability, which included a personal history of cancer. On several occasions, Mr. Stiegman alleges he was denied reasonable accommodations, development opportunities, timely and fair evaluations, and subsequently, was retaliated against for invoking his Constitutional and federally protected rights. On February 4, 2022, the Defendant filed a motion to dismiss case which the Court granted on March 31, 2022, through a Decision and Order entered by Judge Glenn T. Suddaby. The Plaintiff seeks a review of the Court's Decision and Order. The appellate case is captioned as Stiegman v. New York State Office of Information Technology Services, Case No. 22-960, in the United States Court of Appeals for the Second Circuit, filed on April 29, 2022.[BN] Plaintiff-Appellant Victor Karl Daniel Stiegman, individually and on behalf of a class of all others similarly situated, is represented by: Victor Karl Daniel Stiegman, Esq. P.O. Box 13031 Prescott, AZ 86304 Telephone: (518) 302-1322 Defendant-Appellee New York State Office of Information Technology Services, is represented by: Barbara D. Underwood, Esq. NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL 28 Liberty Street New York, NY 10005 ORANSI LLC: Mejia Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Oransi LLC. The case is styled as Richard Mejia, individually, and on behalf of all others similarly situated v. Oransi LLC, Case No. 1:22-cv-03678 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Oransi -- https://oransi.com/ -- is a leading manufacturer of air filtration and ventilation products.[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 OTTE MANHATTAN: Hanyzkiewicz Files ADA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Otte Manhattan, Inc. The case is styled as Marta Hanyzkiewicz, on behalf of herself and all others similarly situated v. Otte Manhattan, Inc., Case No. 1:22-cv-02608 (E.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Otte -- https://otteny.com/ -- is a boutique shopping experience for women with distinct taste in understated luxury and contemporary design.[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 PARACHUTE HOME: Luis Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Parachute Home, Inc. The case is styled as Kevin Yan Luis, individually and on behalf of all others similarly situated v. Parachute Home, Inc., Case No. 1:22-cv-03710 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Parachute Home -- https://www.parachutehome.com/ -- engages in the production of modern bedding and bath essentials for a more comfortable home.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com PARTNERSHIP HEALTHPLAN: Class Action Suit Filed After Data Hack --------------------------------------------------------------- kymkemp.com reports that a damning class action lawsuit filed just alleges the personal medical information of 850,000 northern California residents has been hacked by a dark web ransomware service (AKA the Hive) recently from the files of Partnership Healthplan California (PHC) - putting up for grabs social security numbers, bank accounts, names, addresses, emails, and sensitive medical information of the victims. According to the class action civil complaint filed by Whatley Kallas, LLP and local firm Janssen Malloy LLP* of Humboldt County (in concert with other firms) on behalf of the public and an anonymous plaintiff, Partnership Healthplan California (PHC) acted in violation of the law on several counts, ultimately losing the private personal data of its members recently to a ransomware attack. The numerous alleged violations of law by PHC include the California Consumer Privacy Act, as well as violating California's Constitutional guarantees for consumers, specifically in regard to violations of guaranteed rights to privacy when it comes to medical records, under Article 1, section 1 of the California Constitution, which guarantees consumers their right to privacy. The complaint filed locally in the Superior Court of Humboldt County states early on in the pleading the various ways in which the defendant - Partnership Health Plan California - is culpable, reading in part, "Since Medical Information encompasses such personal and revealing information, it is highly valued as a gateway to medical identity theft and more general identity theft. Medical Information has been found to command up to $1,000 per individual record on the dark web." PHC provides health care services to roughly 850,000 people in Northern California counties, including Humboldt, Mendocino, Del Norte, Trinity, Lake, Lassen, Marin, Modoc, Napa, Shasta, Siskiyou, Solano, and Yolo. All of these members are currently at risk of having identity theft occur as a result of this ransomware security breach by Hive. According to the complaint filed by Megan Yarnall of Janssen Malloy, LLP in Eureka, this data included their patients' names, addresses, and social security numbers. The class action suit arises out of a verified breach of protected health information and personal data of Californians. On March 29, 2022, the Hive ransomware group - posted a message on its HiveLeaks dark website declaring the group had access to the personal private information of approximately 850,000 patients of healthcare coverage provider Partnership Healthplan of California ("PHC") totaling about 400 gigabytes of data. "Absent a class action, most members of the Class would find the cost of litigating their claims to be prohibitive and may have no effective and complete remedy and may not even learn of the wrongful conduct at issue." - CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL filed May 5, 2022 The complaint asserts, "Thus, organizations such as Defendants who are entrusted with this most sensitive and valuable data have a non-delegable duty to take particularly special care to maintain up-to-date information security practices and keep apprised of industry-related threats as they arise. The threat from the Hive group of a ransomware attack was reasonably foreseeable to Defendants, as health care companies had been warned for almost a year of the potential for such an attack on their computer systems." California has laws that specifically protect personal information of consumers and particularly those enrolled in receiving medical care, taking into account the sensitive nature and potentially debilitating consequences of a breach of personal medical information which could lead to delay of care for an individual resulting in catastrophic consequences of identity theft of personal medical information. Having provided references for these assertions within the written complaint, the class action suit details 5 causes for action, each spelled out for the fact finder's consideration - in this case, the fact finder would be a jury, as demanded by the lawsuit. The lawsuit states on behalf of the anonymous victim and all other known and forthcoming individuals affected that, "Plaintiff and all other similarly situated enrollees in PHC's programs face a long-term battle against identity theft if their full names, Social Security Numbers, dates of birth, addresses, health information, and other contact information were contained in this unauthorized access and exfiltration." The Partnership Healthplan California is also bound by the Health Insurance Portability and Accountability Act ("HIPAA")which safeguards electronically stored personal health information. The complaint further counts a violation against "the duties applicable to them under the Federal Trade Commission Act" alleging the healthcare group engaged in "unfair or deceptive acts or practices in or affecting commerce." The lawsuit then explains that the company's "failure to maintain reasonable and appropriate data security for consumers' sensitive personal information" would be an "unfair practice" and as such, is in violation of the Federal Trade Commission Act. According to the FBI, this particular group was on the radar, and had even been flagged as dangerous in the summer of 2021. A notice issued by the FBI reads, "After compromising a victim network, Hive ransomware actors exfiltrate data and encrypt files on the network. The actors leave a ransom note in each affected directory within a victim's system, which provides instructions on how to purchase the decryption software. The ransom note also threatens to leak exfiltrated victim data on the Tor site, "HiveLeaks."" What is this Hive, you may be asking. . . . Well, it can be made up of anyone who has subscribed to the ransomware for hire as a service (RaaS). According to a Cybersecurity firm called Varonis, RaaS is a service provided by ransomware creators, offered on a "subscription-based model that enables users to use ransomware tools to execute attacks." As explained by Varonis, this model of distribution of cyber security breaches are providing "out-of-the-box ransomware tools to subscribers who pay to be an affiliate of the program. . . . are paying for the ongoing use of malicious software." The cybersecurity firm also warns that the theft is likely profitable for those participating, noting that "RaaS enables malicious attacks with lucrative rewards to be collected effortlessly, even by users with no prior knowledge or experience in the field." Partnership Healthplan of California's website has been restored, and includes the following press release regarding "Website Restoration" noted on April 15th, 2022: As of April 15, 2022, Partnership HealthPlan of California has successfully restored its website functionality. We apologize for the recent service disruption and appreciate the patience and understanding of our partners and providers as we worked to safely restore systems. We have taken all recommended measures offered by our cybersecurity partners to ensure these systems are safe and available to resume normal business operations. The safe restoration of systems follows the detection of anomalous activity within areas of the organization's network. Our investigation into the incident continues with the assistance of third-party forensics specialists. We will continue to respond to the situation appropriately and responsibly, as necessary. Indeed, the legal complaint alleges that money is potentially being made at the expense of hundreds of thousands of unsuspecting rural Californians who have yet to be notified at all of the breach into their most sensitive personal details. Due to the extent of the security breach and the nature of the information stolen, the fact that PHC was warned against this exact type of ransomware scam previously, and the legal obligation of PHC under California law - the civil lawsuit seeks hefty compensation on behalf of the public. Not only does the requested relief in the lawsuit include that the company must correct its refusal or inability to communicate details regarding such violations to its members immediately, as well as to correct lapses in security functions, but it also seeks attorney's fees and costs associated with filing the suit, with interest. According to a press release issued late Friday May 6th by Janssen Malloy LLP, "When compared to the data reported by the U.S. Department of Health and Human Services Office of Civil Rights during the last 2 years, this would be the second largest health plan data breach in the United States during that time." The press release encourages local victims of the data breach to reach out. "If you are a patient of PARTNERSHIP HEALTHPLAN OF CALIFORNIA and are concerned about this breach of your personal data and what your options are, contact Janssen Malloy LLP by calling toll-free 888-JANSSEN (1-888-526-7736) or (707) 445-2071." *Please note that the Janssen Malloy law firm is an advertiser on this site and also provides personal legal services for Kym Kemp, this website's owner. [GN] PENNSYLVANIA: Court Sustains Prelim. Objections in Chester Suit --------------------------------------------------------------- In the case, Chester Upland School District and Chichester School District, on behalf of themselves and all others similarly situated, Petitioners v. Michael Rossi, in the official capacity as the Prothonotary of the Court of Common Pleas of Beaver County, Pennsylvania, et al., Respondents, Case No. 133 M.D. 2021 (Pa. Cmmw.), Judge Patricia A. McCullough of the Commonwealth Court of Pennsylvania sustained the Respondents' preliminary objections in the matter, and dismissed without prejudice the Amended Petition for Review. The other Respondents are Cathy J. Fetter, in the official capacity as the Prothonotary of the Court of Common Pleas of Bedford County, Pennsylvania, and Jonathan K. DelCollo in the official capacity as the Prothonotary of the Court of Common Pleas of Berks County, Pennsylvania, and Robin G. Patton in the official capacity as the Prothonotary of the Court of Common Pleas of Blair County, Pennsylvania, and Dawn Close in the official capacity as the Prothonotary of the Court of Common Pleas of Bradford County, Pennsylvania and Judith Reiss in the official capacity as the Prothonotary of the Court of Common Pleas of Bucks County, Pennsylvania, and Kelly Ferrari in the official capacity as the Prothonotary of the Court of Common Pleas of Butler County, Pennsylvania, and Lisa Crynock in the official capacity as the Prothonotary of the Court of Common Pleas of Cambria County, Pennsylvania, and Mary Grace Olay in the official capacity as the Prothonotary of the Court of Common Pleas of Cameron County, Pennsylvania, and Kayla M. Semmel in the official capacity as the Prothonotary of the Court of Common Pleas of Carbon County, Pennsylvania, and Jeremy S. Breon in the official capacity as the Prothonotary of the Court of Common Pleas of Centre County, Pennsylvania, and Debbie Bookman in the official capacity as the Prothonotary of the Court of Common Pleas of Chester County, Pennsylvania, and Jeffrey Hines in the official capacity as the Prothonotary of the Court of Common Pleas of Clarion County, Pennsylvania, and Brian K. Spencer in the official capacity as the Prothonotary of the Court of Common Pleas of Clearfield County, Pennsylvania, and Cynthia A. Love in the official capacity as the Prothonotary of the Court of Common Pleas of Clinton County, Pennsylvania, and Barbara N. Silvetti in the official capacity as the Prothonotary of the Court of Common Pleas of Columbia County, Pennsylvania, and Emmy Arnett in the official capacity as the Prothonotary of the Court of Common Pleas of Crawford County, Pennsylvania, and Dale E. Sabadish in the official capacity as the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, and Mary J. Walk in the official capacity as the Director of Office of Judicial Support of the Court of Common Pleas of Delaware County, Pennsylvania, and Nina Capuzzi Frankhouser in the official capacity as the Prothonotary of the Court of Common Pleas of Fayette County, Pennsylvania, and Dawn M. Millin in the official capacity as the Prothonotary of the Court of Common Pleas of Forest County, Pennsylvania, and Timothy Sponseller in the official capacity as the Prothonotary of the Court of Common Pleas of Franklin County, Pennsylvania, and Patty Fix in the official capacity as the Prothonotary of the Court of Common Pleas of Fulton County, Pennsylvania, and Susan K. White in the official capacity as the Prothonotary of the Court of Common Pleas of Greene County, Pennsylvania, and Kay Coons in the official capacity as the Prothonotary of the Court of Common Pleas of Huntingdon County, Pennsylvania, and Randy Degenkolb in the official capacity as the Prothonotary of the Court of Common Pleas of Indiana County, Pennsylvania, and Tonya S. Geist in the official capacity as the Prothonotary of the Court of Common Pleas of Jefferson County, Pennsylvania, and Lori A. Ferry in the official capacity as the Prothonotary of the Court of Common Pleas of Juniata County, Pennsylvania, and Mauri B. Kelly in the official capacity as the Prothonotary of the Court of Common Pleas of Lackawanna County, Pennsylvania, and Jim Haddock in the official capacity as the Prothonotary of the Court of Common Pleas of Luzerne County, Pennsylvania, and Thomas D. Heap in the official capacity as the Prothonotary of the Court of Common Pleas of Lycoming County, Pennsylvania, and Laura Isadore in the official capacity as the Prothonotary of the Court of Common Pleas of McKean County, Pennsylvania, and Tammy Stuck in the official capacity as the Prothonotary of the Court of Common Pleas of Mifflin County, Pennsylvania, and George Warden in the official capacity as The Prothonotary of the Court of Common Pleas of Monroe County, Pennsylvania, and Susan N. Kauwell in the official capacity as the Prothonotary of the Court of Common Pleas of Montour County, Pennsylvania, and Holly Ruggiero in the official capacity as the Prothonotary of the Court of Common Pleas of Northampton County, Pennsylvania, and Jamie Saleski in the official capacity as the Prothonotary of the Court of Common Pleas of Northumberland County, Pennsylvania, and Zoe Burd in the official capacity as the Prothonotary of the Court of Common Pleas of Perry County, Pennsylvania, and Denise Fitzpatrick in the official capacity as the Prothonotary of the Court of Common Pleas of Pike County, Pennsylvania, and Bridget Miller in the official capacity as the Prothonotary of the Court of Common Pleas of Schuylkill County, Pennsylvania, and Stephanie Wolf in the official capacity as the Prothonotary of the Court of Common Pleas of Snyder County, Pennsylvania, and Angie G. Svonavec in the official capacity as the Prothonotary of the Court of Common Pleas, Somerset County, Pennsylvania, and Kellie Carpenter in the official capacity as the Prothonotary of the Court of Common Pleas of Sullivan County, Pennsylvania, and Marie Seymour in the official capacity as the Prothonotary of the Court of Common Pleas of Tioga County, Pennsylvania, and Diane Miller in the official capacity as the Prothonotary of the Court of Common Pleas of Union County, Pennsylvania, and Paula M. Palmer in the official capacity as the Prothonotary of the Court of Common Pleas of Venango County, Pennsylvania, and Jen Phillips in the official capacity as the Prothonotary of the Court of Common Pleas of Warren County, Pennsylvania, and Laura Hough in the official capacity as the Prothonotary of the Court of Common Pleas of Washington County, Pennsylvania, and Edward Sandercock in the official capacity as the Prothonotary of the Court of Common Pleas of Wayne County, Pennsylvania, and Christina O'Brien in the official capacity as the Prothonotary of the Court of Common Pleas of Westmoreland County, Pennsylvania, and Cindy Adams in the official capacity as the Prothonotary of the Court of Common Pleas of Wyoming County, Pennsylvania, and Allison Blew in the official capacity as the Prothonotary of the Court of Common Pleas of York County, Pennsylvania. I. Introduction On April 26, 2021, Chester Upland School District and Chichester School District (Petitioners) initiated the putative class action under Rules 1701-1717 of the Pennsylvania Rules of Civil Procedure on behalf of themselves and all political subdivisions similarly situated by filing a petition for review1 against the Director of the Office of Judicial Support (OJS) of the County of Delaware and 52 prothonotaries of courts of common pleas in counties of the second class A, the third through eighth classes, and home rule counties, seeking declaratory and injunctive relief and monetary damages for allegedly overcharging court fees in excess of the limitations contained in what is commonly referred to as the Prothonotary Fee Act, 42 P.S. Sections 21071,3 210754 (for third through eighth class counties and home rule counties) and 42 P.S. Sections 21161,5 211656 (for second class A counties). Presently before the Court are preliminary objections (POs) filed by Respondents Prothonotaries of Beaver, Bedford, Berks, Blair, Bradford, Bucks, Butler, Cambria, Carbon, Centre, Chester, Clarion, Clearfield, Clinton, Columbia, Crawford, Cumberland, Fayette, Forest, Franklin, Fulton, Greene, Huntingdon, Indiana, Jefferson, Juniata, Lackawanna, Luzerne, Lycoming, McKean, Mifflin, Monroe, Montour, Northampton, Northumberland, Perry, Pike, Schuylkill, Snyder, Sullivan, Tioga, Union, Venango, Warren, Washington, Wayne, Westmoreland, Wyoming and York Counties. II. Background The Petitioners are two political subdivisions located in Delaware County. They seek to represent a proposed class of all political subdivisions, as defined by 101 Pa. Code Section 23.226 ("school districts, municipalities, and counties, as applicable"), throughout the entire Commonwealth of Pennsylvania which have in the preceding four years filed a document in any of the Respondents' Courts of Common Pleas and which were charged fees "in excess of the statutorily set fees." There are in excess of 3,000 members in the proposed class definition. Each of the parties constituting a Respondent is a Prothonotary, or counterpart, of a home rule county or county of the second class A or of the third to eighth class. The Petitioners assert that: 66. Pursuant to Pennsylvania law relating to a county of Class 2 A through Class 8, the maximum fee to be charged to the Commonwealth or a political subdivision for any one of the services provided herein will be $10. 42 P.S. Section 21075; 42 P.S. Section 21165. 67. Upon information and belief, during the period of time from the respective effective dates of 42 P.S. Section 21075 (during 1982) and 42 P.S. Section 21165 (during 1986), as applicable, up to the date of the filing of the Petition, each of the Respondents has overcharged one or more of the Petitioners, in violation of the foregoing statutory limitation. 68. The Petitioners allege that each Respondent has overcharged a Petitioner and/or Petitioners for court services in excess of the statutory limitation and instead charged the Petitioner(s) the same amount it charged to a party which is not a political subdivision. The Petitioners allege that they personally were charged unauthorized and excessive court fees by Delaware County's OJS in violation of the $10 maximums set forth in section 5 of the Prothonotary Fee Act and section 5 of the 1986 Act. They do not allege specifically that either of them has paid a court fee to any County's prothonotary other than to Delaware County's OJS. They aver that they require discovery in order to ascertain the factual details about which of the Respondents overcharged which of the Petitioners, and the factual details of the parties, dates, and amounts of all instances of an overcharge. In Count I, the Petitioners request the entry of a declaratory judgment that Respondents have violated the Prothonotary Fee Act and the 1986 Act by overcharging the putative class members for court fees and should be compelled to issue refunds. In Count II, the Petitioners allege that, during the four-year period prior to the date of filing of their Amended Petition, all the Respondents have been unjustly enriched by receiving fees that are "more than the statutorily limited court fees." The Petitioners further request class certification, issuance of an injunction limiting all the Respondents from collecting fees, an award of counsel fees and costs, and an award of money damages as reimbursement for excessive fees. On Aug. 10, 2021, the Respondents filed joint POs, challenging the legal sufficiency of the Amended Petition. In their first PO, Respondents demurrer to Count I (declaratory relief) and Count II (unjust enrichment) on the ground that the allegations set forth in the Amended Petition are insufficient to establish entitlement to relief because, effective Jan. 20, 1999, prothonotaries were permitted to increase filing fees charged to political subdivisions notwithstanding the prior $10 cap. Section 1.1 of the Prothonotary Fee Act, added by the Act of Dec. 21, 1998, P.L. 1271, 42 P.S. Section 21071.1(a). In their second PO, the Respondents demurrer to Count I (declaratory relief) and Count II (unjust enrichment) on the ground that the Amended Petition is devoid of any factual assertions that would permit the inference that any Respondent has received court fees in excess of the fees authorized. In their third PO, the Respondents argue that the Petitioners lack standing to assert their claims against any Respondent except the Delaware County OJS because they have not specifically alleged that they have been overcharged by any other Respondent. In their fourth PO, the Respondents argue that the Petitioners' claims are barred by the doctrines of sovereign, governmental, and quasi-judicial immunity. In their fifth PO, the Respondents argue that Petitioners have no legal basis to demand counsel fees. III. Analysis A. Standing The Petitioners purport to bring a class action on behalf of themselves and as representatives of 3,000 other political subdivisions which may have paid unauthorized and excessive court fees to 52 prothonotaries. Under Nye v. Erie Insurance Exchange, 470 A.2d 98, 100 (Pa. 1983), Judge McCullough opines that the Petitioners lack standing to maintain an action against any Respondents other than the Delaware County OJS because Petitioners fail to allege that they have been aggrieved by the conduct of those other Respondents. The Petitioners do not allege any facts or evidence to suggest that either of them ever has been charged any court fees -- whether "unauthorized and excessive" or otherwise -- by any Respondent other than the Respondent from Delaware County. They only aver that, as political subdivisions located in Delaware County, they were charged unauthorized and excessive court fees by the Delaware County OJS. For Petitioners to maintain their action against all the Respondents, they must allege that they have been aggrieved by each Respondent, which they fail to do. Accordingly, pursuant to Nye, the Petitioners lack standing to maintain the action against any Respondent other than Delaware County's OJS. The Amended Petition is dismissed as to all Respondents except the Delaware County OJS. B. Failure to State Claim for Declaratory Relief Having dismissed the Amended Petition against all the Respondents except the Delaware County OJS, the next issue the Court must address is whether the Petitioners fail to state a claim against the Delaware County OJS for declaratory relief. The Petitioners in Count I allege that based "upon information and belief," the Delaware County OJS has overcharged political subdivisions in Delaware County court fees that exceed the $10 maximum set forth in section 5 (for third through eighth class counties and home rule counties) of the Prothonotary Fee Act. They seek a judicial determination pursuant to the Declaratory Judgments Act11 that the Delaware County OJS overcharged them for court fees and should be compelled to issue refunds. In their POs, the Respondents argue that these averments are insufficient to establish the entitlement to declaratory relief because charging a political subdivision a court fee in excess of the $10 maximum in section 5 does not per se constitute a violation of the statute. They point out that the Prothonotary Fee Act was amended in 1998 to add section 1.1, 42 P.S. Section 21071.1, titled "Increasing Existing Fees," which authorizes prothonotaries to increase any existing fee or charge. Judge McCullough finds that the Amended Petition is too uncertain and contingent to entitle the Petitioners to the requested declaratory relief. Even if ahe assumes, as alleged, that the Delaware County OJS charged Petitioners court fees in excess of $10, she could not, based on that lone allegation, declare that this conduct violated the Prothonotary Fee Act. The Petitioners do not dispute that the Prothonotary Fee Act was amended to allow prothonotaries to increase any fee or charge, and they do not appear to dispute that this includes the prior $10 maximums applicable to political subdivisions. In fact, they concede that "some of the Respondents may have been able to charge more than the so-called '$10 Cap'" and that "discovery will be required to ascertain which of the Respondents may have been entitled to charge more." They also do not ask the Court to declare their rights under the amended fee increase provisions. Rather, it is clear from the Amended Petition that the Petitioners are only challenging court fees to the extent that they were in excess of the $10 cap in 42 P.S. Section 21075 -- without regard to the fee increase amendment. At most, the Petitioners have alleged that Delaware County's OJS may have (they are not entirely certain and need discovery to confirm) charged them court fees that were more than $10 and concede that the fee increase provisions allow prothonotaries to charge more than $10. Judge McCullough opines that the overriding speculative nature of the allegations in the Amended Petition renders the requested declarations inappropriate as it is far from clear that grant of the requested declaratory relief would be "of practical help in ending the controversy." For these reasons, the Petitioners' factual allegations are legally insufficient to support this claim for declaratory relief. Hence, the Respondents' preliminary objection to this Count is sustained. C. Failure to State a Claim for Unjust Enrichment The Petitioners allege in Count II that the Delaware County OJS has been unjustly enriched by receiving court fees from the Petitioners that are "more than the statutorily limited court fees." The Respondents argue that the Petitioners' claim for unjust enrichment is insupportable as a matter of law because the Petitioners have pled no facts to support that assertion. In that regard, Pennsylvania is a fact-pleading state and Rule 1019(a) provides that "the material facts on which a cause of action or defense is based will be stated in a concise and summary form." Judge McCullough holds that because the Petitioners have not alleged facts suggesting that the Respondents received a benefit from Petitioners and that it would be inequitable for the Respondents to retain such benefit, she must sustain this PO and dismiss Count II. She finds that the Amended Petition falls short of pleading the necessary facts to sustain a cause of action for unjust enrichment. First, the Petitioners do not describe any instances where the Delaware County OJS overcharged any Petitioner for a court fee. They further fail to allege any plausible benefit that the Delaware County OJS "unjustly" received as a result of charging Petitioners a court fee in excess of $10. Moreover, based on the allegations, it is apparent that the Petitioners themselves do not even know for certain that violations have actually occurred and are using the lawsuit as the means to discover if and when the overcharges actually occurred. IV. Conclusion & Order In sum, the POs in the nature of a demurrer filed by the Respondents are sustained and the Petitioners' Amended Petition in the Court's original jurisdiction is dismissed without prejudice. President Judge Cohn Jubelirer, Judge Fizzano Cannon and Judge Wallace did not participate in the decision for the case. Accordingly, Judge McCullough sustained the preliminary objections in the matter of the Respondents, and dismissed without prejudice the Amended Petition for Review. A full-text copy of the Court's April 29, 2022 Opinion is available at https://tinyurl.com/2jp4kjrm from Leagle.com. PERFECT BAR: Faces False Advertising Class Action in California --------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that a new class action lawsuit says Perfect-brand snacks aren't living up to their name when it comes to measuring protein. Plaintiffs Mehva Roffman and Lisa Chong sued Perfect Bar LLC on April 22 in California federal court through lawyers at Gutride Safier. The suit alleges fraud, false advertising and violation of the California Consumers Legal Remedies Act. The Perfect snacks have their protein content put on the front of their packaging, but the case finds fault with the calculation because the main protein source is nuts. The suit says nuts at low-quality protein and that only 40% to 50% of it can be used to support human need. So a snack that purports to have 15 grams of protein really only has about 7.5 for humans, the suit claims. "Defendant's advertising and labeling of the Products as containing and providing specific amounts of protein per serving is unlawful, misleading, and intended to induce consumers to purchase the Products at a premium price, while ultimately failing to meet consumer expectations," the suit says. [GN] PNC FINANCIAL SERVICES: Hobbs Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against The PNC Financial Services Group, Inc. The case is styled as Alexandra Hobbs, on behalf of herself and all other persons similarly situated v. The PNC Financial Services Group, Inc., Case No. 1:22-cv-03634 (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The PNC Financial Services Group, Inc. -- https://www.pnc.com/en/about-pnc.html -- is an American bank holding company and financial services corporation based in Pittsburgh, Pennsylvania.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: nyjg@aol.com michael@gottlieb.legal RAIN ALBANY: Faces Xue Fang Huang Wage-and-Hour Suit in N.D.N.Y. ---------------------------------------------------------------- XUE FANG HUANG, individually and on behalf of all others similarly situated, Plaintiff v. RAIN ALBANY LLC, FRANK LEE, JOHN DOE and JANE DOE # 1-5, Defendants, Case No. 1:22-cv-00482-BKS-CFH (N.D.N.Y., May 9, 2022) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay minimum wages, failure to pay overtime wages, failure to pay spread-of-hours premium, failure to timely pay wages, and failure to provide wage notice and wage statements. Ms. Huang was employed at the Defendants' restaurant from approximately May 2016 to July 2018 as a dishwasher then from October 2018 until October 19, 2021 as a kitchen helper. Rain Albany LLC is a restaurant owner and operator, with a principal place of business at 259 Lark Street, Albany, New York. [BN] The Plaintiff is represented by: Jin Huang, Esq. LAW OFFICES OF JIN HUANG 36-09 Main Street, Suite 10A Flushing, NY 11354 Telephone: (718) 321-2911 E-mail: jhlawoffices@gmail.com RALPHS GROCERY: Johnson BIPA Suit Removed to N.D. Illinois ---------------------------------------------------------- The case styled MAETEAN JOHNSON, on behalf of himself and all others similarly situated v. RALPHS GROCERY COMPANY d/b/a FOOD 4 LESS MIDWEST and THE KROGER CO., Case No. 2022CH02683, was removed from the Circuit Court of Cook County, Illinois, to the U.S. District Court for the Northern District of Illinois on May 6, 2022. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:22-cv-02409 to the proceeding. The case arises from the Defendants' alleged violation of the Illinois Biometric Information Privacy Act by collecting, capturing, storing, obtaining, using, and/or disseminating their employees' fingerprints without: (a) informing them of the specific purpose and length of time for which their fingerprints were collected and stored; (b) making publicly available a retention schedule and policy for destroying their fingerprints; and (c) obtaining a written release in which they authorized the Defendants to collect, capture, store, and/or use their fingerprints. Ralphs Grocery Company, doing business as Food 4 Less Midwest, is an American supermarket chain in Southern California. The Kroger Co. is an American retail company that operates supermarkets and multi-department stores throughout the United States, headquartered in Cincinnati, Ohio. [BN] The Defendants are represented by: Diane Webster, Esq. Peter E. Pederson, Esq. Joseph D. Kern, Esq. HINSHAW & CULBERTSON LLP 151 North Franklin Street, Suite 2500 Chicago, IL 60606 Telephone: (312) 704-3000 Facsimile: (312) 704-3001 E-mail: dwebster@hinshawlaw.com ppederson@hinshawlaw.com jkern@hinshawlaw.com RICHLAND COUNTY, OH: Attorney Appointed for Opioid Suit Settlement ------------------------------------------------------------------ mansfieldnewsjournal.com reports the Richland County commissioners took the first steps to allow the county to accept opioid lawsuit settlement funds whenever the state makes them available. The board voted to approve an intergovernmental service agreement to participate in the One Ohio Recovery Foundation and named local attorney Jeff Heck to a regional foundation board that will help develop policy and oversee distribution of the money. Last year the State of Ohio approved a settlement of a nationwide class action lawsuit against pharmaceutical manufacturers and distributors that officials contended helped create an opioid crisis. The settlement included a large payment to help states deal with the results of the crisis. County Business Manager Andrew Keller told commissioners that "upwards" of $5 billion dollars has been allocated to Ohio, to be administered by the One Ohio Recovery Foundation Board, which will have representatives from 19 regions. Region 19 includes Richland, Ashland, Wayne, Lorain, Erie, Huron and Medina counties. Keller said the Region 19 board will meet to pick a representative to the foundation board, which will hold its first meeting May 16. He said it's important for Richland County to have a representative on the regional board. "There's a lot of money at stake here that is earmarked towards combating addiction and also helping pay for costs associated with fighting the drug problem," Keller said. "In Richland County, we certainly believe law enforcement should be a critical part of funding because law enforcement have been and continue to be on the front lines of the drug problem." Funding allocation yet to be decided Keller said it is expected that the $5 billion will be distributed across the state over 20 years with a uniform methodology that still needs to be determined. While a majority of the money will be run through the One Ohio Foundation, he said some will be allocated directly to each individual county and will be more flexible to use because local officials will have more control. Keller did not have any information on how much money Richland County could receive from the opioid settlement. However, a representative of Ohio Attorney General Dave Yost's office told the board in February that the county could receive up to $1.5 million. The representative said funds could be used for first responders and criminal justice professionals for cross agency/department collaboration and other public safety expenditures relating to the opioid epidemic that address both community statewide supply and demand reduction strategies, including criminal interdiction efforts. They also could be used to train public safety officials and responders in safe-handling practices and precautions when dealing with fentanyl or other drugs. Vero said Heck was chosen to be the county's Region 19 representative because he is active in the community in the areas of mental health and mental illness and some of the opioid settlement funding is expected to be directed toward substance abuse. He also noted that Heck's background as a lawyer will be valuable in dealing with the "complexities" of forming regions and uses for the funds. Heck and his wife are involved with 33 Forever Inc., a nonprofit organization founded by family and friends of his daughter, who lost a battle with depression in 2019. In other business, commissioners accepted a $112,400 opioid Fresh Start emergency grant from Area 10 of the Ohio Office of Workforce Development that will allow Catalyst Life Services to provide training, temporary jobs and other services for people suffering from the effects of opioid abuse. They also gave the county Department of Job and Family Services and the Youth and Family Council the authority to receive $266,373 from the Ohio Department of Developmental Disabilities to provide assessments and early intervention services for children birth to age 3 to help in their development.[GN] RIPPLE FOODS: Feliz Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Ripple Foods, PBC. The case is styled as Roberta Feliz, individually, and on behalf of all others similarly situated v. Ripple Foods, PBC, Case No. 1:22-cv-03688 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ripple Foods -- https://www.ripplefoods.com/ -- offers a nutritious & delicious milk alternative that is 100% dairy-free, vegan, nut-, lactose- & gluten-free.[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 RIVERSIDE COUNTY, CA: Faces Wilkins FLSA Suit in C.D. California ---------------------------------------------------------------- ANTHONY WILKINS, individually and on behalf of all others similarly situated, Plaintiff v. COUNTY OF RIVERSIDE and DOES 1-10, inclusive, Defendants, Case No. 5:22-cv-00798 (C.D. Cal., May 10, 2022) is a class action against the Defendants for failure to pay overtime wages and failure to provide bona fide meal periods in violation of the Fair Labor Standards Act. The Plaintiff worked for the Defendants as a non-exempt nurse in California. County of Riverside is a public entity in California. [BN] The Plaintiff is represented by: Devon M. Lyon, Esq. Matthew B. Perez, Esq. LYON LEGAL, P.C. 2698 Junipero Ave., Suite 201A Signal Hill, CA 90755 Telephone: (562) 216-7382 Facsimile: (562) 216-7385 E-mail: d.lyon@lyon-legal.com m.perez@lyon-legal.com RIVIANA FOODS: Kutzback Wins Bid to Certify Collective Action ------------------------------------------------------------- In the class action lawsuit captioned as MICHAEL KUTZBACK, individually and on behalf of all others similarly situated, v. RIVIANA FOODS, INC., Case No. 2:22-cv-02025-JPM-atc (W.D. Tenn.), the Hon. Judge Jon P. McCalla entered an order granting unopposed motion to conditionally certify collective action. The Defendant is directed to produce a list of all members of the Putative Class by providing a list of their names, last known addresses, social security numbers if necessary, dates of employment, cell phone numbers, and email addresses in electronic and importable format (e.g., Microsoft Excel) by May 6, 2022. The Plaintiff's counsel is authorized to send the Court-approved notice and reminder notice of this action to the putative class members via U.S. Mail, e-mail and text message, and Defendant must post the notice in a conspicuous location in its Tennessee facilities, the Court says. Riviana is a processor, marketer, and distributor of branded and private label rice products. A copy of the Court's order dated April 22, 2022 is available from PacerMonitor.com at https://bit.ly/396Kqjy at no extra charge.[CC] RODD & GUNN USA: Iskhakova Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Rodd & Gunn USA, Inc. The case is styled as Marina Iskhakova, on behalf of herself and all others similarly situated v. Rodd & Gunn USA, Inc., Case No. 1:22-cv-02615 (E.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rodd & Gunn -- https://www.roddandgunn.com/ -- offers a timeless range of smart & casual men's clothing.[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 ROGER CLEVELAND: Abreu Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Roger Cleveland Golf Company, Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Roger Cleveland Golf Company, Inc., Case No. 1:22-cv-03682 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Cleveland Golf -- https://www.clevelandgolf.com/ -- is a premier manufacturer of men's golf clubs, equipment and accessories.[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 ROKIT INC: Fails to Pay Proper Wages, Guffey Suit Alleges --------------------------------------------------------- JACK GUFFEY; and JEFFREY MOORE, individually and on behalf of all others similarly situated, Plaintiff v. ROKIT INC.; ROKIT DRINKS LLC; ROKIT IMPORTS INC.; ROKIT DRINKS IMPORTS INC.; ROKIT DRINKS RESOURCES INC.; ROKIT DISTILLERY INC.; DANIEL LEWIS; JONATHAN KENDRICK; DEAN BECKER; and DOES 1-10, inclusive, Defendants, Case No. 22STCV15379 (Cal. Super., Los Angeles Cty., May 9, 2022) is an action against the Defendants for failure to pay minimum wages, overtime compensation, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiffs were employed by the Defendants as sales representative. ROKIT INC. is in the business of manufacturing, marketing, and distributing alcoholic beverages. [BN] The Plaintiffs are represented by: R. Craig Clark, Esq. Alicja A. Urtnowski, Esq. Dawn M. Berry, Esq. CLARK LAW GROUP 3258 Fourth Avenue San Diego, CA 92103 Telephone: (619) 239-1321 Facsimile: (888) 273-4554 Email: cclark@clarklawyers.com aurtnowski@clarklawyers.com dberry@clarklawyers.com ROWDY BEVERAGE: Abreu Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Rowdy Beverage, Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Rowdy Beverage, Inc., Case No. 1:22-cv-03606 (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rowdy -- https://rowdyenergy.com/ -- is a clean energy drink with caffeine naturally derived from green tea.[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 RUST-OLEUM CORP: Faces Class Suit Over RainBrella False Advertising ------------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that most of a RainBrella glass treatment class action lawsuit has been dismissed after a customer claimed statements about RainBrella on the packaging were false. RainBrella is a glass treatment sold by Rust-Oleum in a box containing two saturated cloth wipes to repel rain, mud and dirt. In a separate July 2017 action, Illinois Tool Works (ITW), which manufactures a similar water repellent product called Rain-X, filed a lawsuit against Rust-Oleum alleging RainBrella's representations were false and misleading. After a six-day jury trial in 2018, the jury found Rust-Oleum was liable for false advertising based on the claim that RainBrella "Lasts 2X Longer" than the leading competitor and liable for misleading advertising based on the claim RainBrella "Lasts Over 100 Car Washes." While the Fifth Circuit upheld the jury's verdict relating to the "Lasts 2X Longer" representations, the court reversed the verdict relating to the "Lasts Over 100 Car Washes" representation, holding there was no evidence to support a finding of materiality. The trial court then issued a judgment to stop Rust-Oleum from using the claim "Lasts 2X Longer" and making representations as to RainBrella's performance as compared to Rain-X. Wisconsin plaintiff Shaquavia Harris sued Rust-Oleum Corporation alleging she fell for advertising that said the glass treatment "Lasts 2X Longer" than a leading competitor and "Lasts Over 100 Car Washes." The plaintiff and her husband regularly purchased RainBrella for years and applied it to their vehicles, typically paying about $7.99 per box. According to Harris, even though she continued to purchase and use the product for years, she never would have purchased RainBrella had she known the statements about RainBrella on the packaging were false. Motion to Dismiss the RainBrella Lawsuit Rust-Oleum filed its motion to dismiss and succeeded in getting all the claims dismissed except one count. The plaintiff alleged an unjust enrichment claim against Rust-Oleum, but the company argued the plaintiff didn't purchase RainBrella direct from Rust-Oleum and instead bought it from retailers. According to the judge, Wisconsin law is strict about the first element of an unjust enrichment claim as it requires, "[t]he conferral of the benefit must be directly from the plaintiff to the defendant and not, for instance, a third-party retailer." Therefore, Judge Andrea R. Wood dismissed the claim because Harris alleges she purchased RainBrella from third-party retailers but not from Rust-Oleum. Rust-Oleum also said the plaintiff couldn't proceed with her nationwide class action lawsuit because it would involve unjust enrichment claims of all 50 states. The judge agreed and said applying laws of all 50 states is "unmanageable on a class-wide basis because those states' laws conflict in material ways." Additionally, the judge ruled the one named plaintiff (Harris) is an inadequate class action representative. The judge also dismissed a declaratory judgment claim that RainBrella is defective because the plaintiff has no basis to seek declaratory relief pursuant to federal rules for a nationwide class of customers. Judge Wood further dismissed a claim for breach of implied warranty of merchantability because "Wisconsin has always required privity of contract in an action for a breach of implied warranty." "For consumer transactions, privity exists only between the buyer and immediate seller --accordingly, there can be no claim for an implied warranty of merchantability between a manufacturer and consumer without a direct sale." -- Judge Wood The only claim allowed to proceed is a Deceptive Trade Practices Act claim because the judge found dismissal at this point would be "premature." The RainBrella glass treatment class action lawsuit was filed in the U.S. District Court for the Northern District of Illinois, Eastern Division: Shaquavia Harris, v. Rust-Oleum Corporation. The plaintiff is represented by Simmons Hanly Conroy LLC, Williams Dirks Dameron LLC, and The Goss Law Firm, P.C. [GN] SAINT NINE AMERICA: Abreu Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Saint Nine America, Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Saint Nine America, Inc., Case No. 1:22-cv-03686 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Saint Nine America, Inc. -- https://saintnineamerica.com/ -- is a golf shop in Santa Fe Springs, California.[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 SCRAPPY THOMAS: Underpays Scrap Metal Workers, Medders Claims ------------------------------------------------------------- Ginger L. Medders and other similarly situated individuals, Plaintiff v. Scrappy Thomas, Inc. and Brian T. Lewis, individually, Defendants, Case No. 8:22-cv-01015 (M.D. Fla., May 1, 2022) is an action against the Defendants to recover money damages for unpaid regular and overtime wages and retaliation under the Fair Labor Standards Act. The Plaintiff was employed by the Defendants as a non-exempted, full-time scrap metal worker, recycling, and cleaning employee from October 1, 2018 to December 22, 2021, or more than 3 years. On December 22, 2021, Plaintiff left her position after suffering retaliatory treatment because her husband filed an FLSA action against Defendants on October 20, 2021. Scrappy Thomas is a scrap metal recycling company based in Mulberry, Florida.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com SD BIOSENSOR: Cenci Sues Over Sale of Unapproved COVID-19 Tests --------------------------------------------------------------- MATTHEW CENCI, individually and on behalf of all others similarly situated, Plaintiff v. SD BIOSENSOR USA, INC., Defendant, Case No. 1:22-cv-02613-KAM-PK (E.D.N.Y., May 6, 2022) is a class action against the Defendant for violation of New York General Business Law, fraud, unjust enrichment, and breach of express warranty. The case arises from the Defendant's manufacturing, distribution, and sale of the SDB Standard Q COVID-19 Ag Home Test that has not been authorized, cleared, or approved for distribution in the U.S. by the Food & Drug Administration. The Defendant failed to disclose or inform the Plaintiff and similarly situated consumers that its COVID-19 tests were not authorized, cleared, or approved by the FDA for distribution or use in the U.S. Had the Plaintiff and Class members known the truth, they would not have purchased or used the products at all or would have paid significantly less for the products. SD Biosensor USA, Inc. is a diagnostic solutions company, with its principal place of business at 30 Corporate Park, Suite 315, Irvine, California. [BN] The Plaintiff is represented by: Joshua D. Arisohn, Esq. Max S. Roberts, Esq. Julian C. Diamond, Esq. Matthew A. Girardi, Esq. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: jarisohn@bursor.com mroberts@bursor.com jdiamond@bursor.com mgirardi@bursor.com SIGNATURE FLIGHT: Herrera Labor Suit Removed to C.D. California --------------------------------------------------------------- The case styled DENNIS HERRERA, on behalf of himself and all others similarly situated v. SIGNATURE FLIGHT SUPPORT LLC and DOES 1 to 100, inclusive, Case No. 22STCV09377, was removed from the Superior Court of the State of California, County of Los Angeles, to the U.S. District Court for the Central District of California on May 6, 2022. The Clerk of Court for the Central District of California assigned Case No. 2:22-cv-03082 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Business and Professions Code including unpaid minimum wages, unpaid overtime wages, failure to provide required meal periods, failure to provide rest periods, failure to furnish accurate itemized wage statements, failure to reimburse business expenses, and unfair and unlawful business practices. Signature Flight Support LLC is an aviation services company based in Orlando, Florida. [BN] The Defendant is represented by: David L. Cheng, Esq. Jennifer S. McGeorge, Esq. Justin L. Clark, Esq. FORD & HARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles, CA 90071 Telephone: (213) 237-2400 Facsimile: (213) 237-2401 E-mail: dcheng@fordharrison.com jmcgeorge@fordharrison.com jclark@fordharrison.com SMITH JEWELERS: Picon Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Smith Jewelers, Inc. The case is styled as Yelitza Picon, on behalf of herself and all other persons similarly situated v. Smith Jewelers, Inc., Case No. 1:22-cv-03582 (S.D.N.Y., May 3, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Smith Jewelers -- https://www.smithjewelersny.com/ -- is your trusted local jewelry store in Oyster Bay, New York.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal SPRING FOOTWEAR: Mejia Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Spring Footwear Corp. The case is styled as Jose Mejia, individually, and on behalf of all others similarly situated v. Spring Footwear Corp., Case No. 1:22-cv-03675 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Spring Footwear Corp. -- https://www.springfootwear.com/ -- provides footware products. The Company engages in the wholesale distribution of shoes and other footwear products for men and women.[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 SPUN BAMBOO: Abreu Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Spun Bamboo, LLC. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Spun Bamboo, LLC, Case No. 1:22-cv-03613 (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Spun Bamboo -- https://www.bambooclothes.com/ -- is the original and still the best source for bamboo clothing, bamboo socks and bamboo accessories.[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 STATE FARM: District of Arizona Certifies Class in McClure Suit --------------------------------------------------------------- In the case, Earl L. McClure, Plaintiff v. State Farm Life Insurance Company, Defendant, Case No. CV-20-01389-PHX-SMB (D. Ariz.), Judge Susan M. Brnovich granted McClure's Motion for Class Certification and denied State Farm's Motion to Exclude Declaration and Testimony of Scott J. Witt. I. Background The Plaintiff filed the lawsuit against State Farm on behalf of himself and a proposed class in relation to a $100,000 life insurance policy he bought from State Farm in February 1997. His lawsuit challenges State Farm's interpretation and implementation of its form universal life insurance policy: "Form 94030." State Farm sold the Policy in Arizona from 1994 to 2004. Unlike a term life insurance policy, which includes only a death benefit, the Policy includes an account value which operates like a savings account. Premiums are deposited into the Account Value and accumulate interest at a fixed rate. Under the Policy, State Farm deducts specific charges from the Account Value each month. Among these are (1) a cost of insurance charge ("COI Charge"), (2) charges for any riders, and (3) a $5 expense charge. The Policy states that State Farm may calculate the COI Charge rates for each policy year "based on the Insured's age on the policy anniversary, sex, and applicable rate class," and that such rates can be adjusted for projected changes in mortality." The Plaintiff alleges that this Policy language expressly lists the exclusive factors that State Farm is permitted to use to determine the monthly COI Charge. He alleges that after developing pricing mortality rates using only the listed factors, "State Farm increased those rates with undisclosed profit and expense loads." Due to these loads, the Plaintiff argues that the COI Charge rates implemented by State Farm "were on average more than double the rates determined using only the listed, contractual mortality factors." He contends that "because these Policy overcharges result from State Farm's uniform administration of the Policy, all policy owners are subject to the same set of loaded COI rates." The Plaintiff brings two claims for breach of contract. Count I is a breach of contract claim for State Farm's alleged overcharging related to the COI Charge due to unauthorized expense loads. Count II is a breach of contract claim alleging that State Farm impermissibly deducts expenses from policyholders in amounts in excess of the fixed expense charges authorized by the Policy. The Plaintiff's Complaint also alleges a claim for a conversion (Count III), and a claim for declaratory relief (Count IV). The Plaintiff moves the Court to certify the following class: "All persons identified in State Farm's policy owner data produced to the Plaintiff's Counsel as an owner or former owner of a Form 94030 universal life insurance policy issued by State Farm in the State of Arizona who was subject to at least one monthly deduction." Oral argument was held before the Court on April 7, 2022. State Farm also filed a Motion to Exclude Declaration and Testimony of Scott J. Witt, to which the Plaintiff responded, and State Farm replied. II. Discussion A. Class Certification Class actions are governed by Federal Rule of Civil Procedure 23, which permits certification only if: (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. The court must also find that at least one of the following three conditions is satisfied: (1) the prosecution of separate actions would create a risk of: (a) inconsistent or varying adjudications, or (b) individual adjudications dispositive of the interests of other members not a party to those adjudications; (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class; or (3) questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The plaintiffs seeking class certification must show that they have met the requirements of the four subsections in Rule 23(a) and at least one subsection in Rule 23(b). The Plaintiff argues that the proposed class meets the requirements of Rule 23(a) as well as the requirements of Rule 23(b)(3). He also argues that his claim for a declaratory judgment meets the requirements of Rule 23(b)(2). State Farm first argues that Plaintiff's proposed class cannot be certified because Plaintiff's reading of the Policy language is implausible and does not support his breach of contract theory. Judge Brnovich finds that (i) because the Plaintiff's proposed class contains over 13,500 policyholders, the numerosity requirement is easily satisfied; (ii) the Plaintiff has satisfied the commonality requirement because each claim is based on a form contract and a uniform course of conduct towards each policyholder by State Farm; (iii) despite State Farm's arguments to the contrary, the Plaintiff has shown that his claims and defenses are typical of those of the class; and (iv) the Plaintiff has satisfied the adequacy of representation requirement. Judge Brnovich further finds that (i) the Plaintiffs have met the predominance requirement in the case regarding their breach of contract claims; (ii) State Farm's statute of limitations defense does not preclude a finding that the Plaintiff has shown predominance; (iii) the Plaintiff's damages model satisfies the predominance requirements; and (iv) because the recoveries of each individual class member will be relatively small, a class action is superior to other methods of adjudication. The Plaintiff also argues that his claim for declaratory judgment (Count IV) satisfy the requirements of Rule 23(b)(2). Rule 23(b)(2) permits class certification where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." The Court has found that the terms of the Policy are the same for each prospective class member. Therefore, because the terms of the Policy are the same for each prospective class member, the interpretation will result in a declaratory judgment applicable to all class members. Thus, a claim for declaratory judgment satisfies Rule 23(b)(2). State Farm also argues that the Plaintiff's conversion claim (Count III) cannot be certified. It first argues that the Plaintiff cannot repackage a breach of contract claim as a conversion claim. Second, State Farm argues that "the same issues that preclude class certification for Counts I and II would bar certification for his conversion claim, because the Plaintiff relies on the same arguments and damages models for certification on Count III." Third, it contends that it is entitled to introduce evidence that a particular class member was aware of and consented to the challenged conduct. All three of State Farm's arguments regarding the Plaintiff's conversion claim must be rejected. State Farm's first argument is a merits argument that is better suited for a dispositive motion, Judge Brnovich finds. Therefore, she declines to rule on this issue at this time as it has little bearing on class certification issues. She rejects State Farm's second argument for the same reasons that she rejected its arguments regarding the Plaintiff's breach of contract claims. Third, State Farm argues that it will need to present evidence that individual consumers consented to State Farm's practices, which defeats certification, but points to no evidence that indicates policy owners were aware of or consented to State Farm's potentially improper expense loads. Accordingly, Judge Brnovich will certify the Plaintiff's conversion claim for the same reasons that it certified Plaintiff's breach of contract claims. B. Motion to Strike Plaintiff's Expert The expert in question, Scott Witt, is noticed as an actuarial expert to opine about COI Charge rates. State Farm asks the Court to preclude the expert claiming the opinions are not admissible under Rule 702 and Daubert. State Farm does not argue that Mr. Witt is unqualified or not an expert in this field, but argues, instead, that his opinions as an expert are not relevant or reliable. Judge Brnovich holds that by partitioning the different parts of the COI Charge rates, Mr. Witt is able to pull out the expense portion to identify expenses that should not have been charged to the insureds according to Plaintiff's theory on Count II. His calculations fit the theory for Count II. And because of the issue regarding the unpooled duration as a basis for the mortality tables, this does not affect the Court's decision that Mr. Witt's methodology is reliable. Additionally, Judge Brnovich the Plaintiff has established that Mr. Witt's opinions are relevant and reliable. Accordingly, State Farm's motion to exclude his testimony will be denied. Finally, State Farm has not shown any unconstrained manipulation of mortality data to support its argument that the opinions would mislead the jury. Hence, the opinions of Mr. Witt should not be precluded under Rule 403. III. Conclusion For the reasons she discussed, Judge Brnovich granted the Plaintiff's Motion for Class Certification. Judge Brnovich certified a class consisting of "all persons identified in State Farm's policy owner data produced to the Plaintiff's Counsel as an owner or former owner of a Form 94030 universal life insurance policy issued by State Farm in the State of Arizona who was subject to at least one monthly deduction." Judge Brnovich denied the Defendant's Motion to Exclude Declaration and Testimony of Scott J. Witt. A full-text copy of the Court's April 29, 2022 Order is available at https://tinyurl.com/h95yysa2 from Leagle.com. STELLATO ENTERPRISES: Abreu Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Stellato Enterprises Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Stellato Enterprises Inc., Case No. 1:22-cv-03624 (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Stellato Enterprises Inc. is located in Joliet, Illinois and is part of the Other Miscellaneous Manufacturing Industry.[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 SULPHUR SPRINGS: Underpays Occupational Therapists, Fetters Says ---------------------------------------------------------------- ALYSSA FETTERS, individually and on behalf of all others similarly situated, Plaintiff v. SULPHUR SPRINGS UNION SCHOOL DISTRICT and DOES 1 to 10, inclusive, Defendant, Case No. 2:22-cv-03077 (C.D. Cal., May 6, 2022) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated workers overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. The Plaintiff worked for the Defendant as a registered occupational therapist from approximately May 2019 to approximately August 2021. Sulphur Springs Union School District is a school district in California. [BN] The Plaintiff is represented by: Rob Hennig, Esq. Brandon Ruiz, Esq. Adrian Hernandez, Esq. HENNIG KRAMER RUIZ & SINGH, LLP 3600 Wilshire Blvd., Suite 1908 Los Angeles, CA 90010 Telephone: (213) 310-8301 Facsimile: (213) 310-8302 SUN VALLEY: Cross-Complaint v. Pineda, Becerra, Brower & Su Tossed ------------------------------------------------------------------ In the case, LETICIA PINEDA, on behalf of herself and all others similarly situated, Plaintiff v. SUN VALLEY PACKING, L.P., Defendant. SUN VALLEY PACKING, L.P., Cross-Claimant v. XAVIER BECERRA, in his official capacity as the Attorney General of the State of California, et al., Cross-Defendants, Case No. 1:20-cv-00169-DAD-EPG (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California granted the motion to dismiss filed by Cross-Defendant Leticia Pineda and the motion to dismiss filed by Cross-Defendants Xavier Becerra, Lilia Garcia Brower, and Julia A. Su, on Aug. 4, 2020, in which they seek dismissal of cross-claimant Sun Valle's cross-complaint for injunctive and declaratory relief. I. Background Plaintiff and Cross-Defendant Pineda initiated the putative class action in Fresno County Superior Court against Defendant and Cross-Claimant Sun Valley alleging various wage, hour, and other labor-related claims under the California Labor Code, as well as a representative action claim for civil penalties under the Labor Code Private Attorneys General Act of 2004 ("PAGA"). On Jan. 31, 2020, Sun Valley timely removed this action to this federal court and filed a cross-complaint against the Plaintiff "for injunctive and declaratory relief regarding the unconstitutionality of PAGA." On March 4, 2020, it filed an amended cross-complaint seeking the same relief but naming three state officials and one state agency as additional cross-defendants: Xavier Becerra, in his official capacity as the Attorney General of the State of California; Lilia Garcia Brower, in her official capacity as the Labor Commissioner of the State of California; Julia A. Su, in her official capacity as the Secretary of the California Labor and Workforce Development Agency; and the California Labor and Workforce Development Agency ("LWDA"). The crux of Sun Valley's claims is that "employee plaintiff-contingency fee trial attorneys" have figured out how to use PAGA to their own personal benefit and are unfairly harming employers in the process. Sun Valley requests that the Court orders the state "to enforce California laws itself" instead of "transferring and/or granting the state's power to enforce California law over to private Plaintiffs" because "their attorneys operate for their own personal gain with inherent and existing conflicts of interest seeking only to generate personal wealth acquired in pursuing unconstitutional PAGA claims that result in insignificant and reduced benefit to the State of California." In its amended cross-complaint, Sun Valley alleges the following six causes of action against all Cross-Defendants: (1) a claim under 42 U.S.C. Section 1983 predicated on alleged deprivation of procedural due process, substantive due process, and equal protection rights in violation of the Fifth and Fourteenth Amendment to the U.S. Constitution, as well as deprivation of the Eighth Amendment right to be free from excessive fines; (2) a claim that PAGA violates the procedural due process guarantee of the California Constitution; (3) a claim that PAGA violates the substantive due process guarantee of the California Constitution; (4) a claim that PAGA violates the equal protection guarantee of the California Constitution; (5) a claim that PAGA violates the California Constitution's prohibition on excessive fines; and (6) a claim that PAGA violates the California Constitution's separation of powers doctrine. In short, Sun Valley requests that the Court issues an order declaring that PAGA is unconstitutional and unenforceable and issue an injunction enjoining the Cross-Defendants from suing upon, implementing, or enforcing PAGA, including enjoining the Plaintiff and any other aggrieved employee from maintaining a PAGA claim against Sun Valley in the action and any other action. On Aug. 4, 2020, Cross-Defendant Pineda filed the pending motion to dismiss Sun Valley's claims against her, arguing that she is not a proper party to Sun Valley's declaratory relief action because "Sun Valley has not and cannot show that she acted under color of state law by filing her PAGA claim," and Sun Valley's request that "this federal court hold that a California state statute is unconstitutional has nothing to do with her." Also on Aug. 4, 2020, Cross-Defendants Becerra, Brower, and Su (collectively, the "State Cross-Defendants") filed the other pending motion to dismiss Sun Valley's amended cross-complaint, arguing that the Court should exercise its discretion to decline to entertain Sun Valley's declaratory action "because the declaratory judgment remedy is neither useful nor appropriate under the circumstances of the case." On Sept. 1, 2020, Sun Valley filed oppositions to the Cross-Defendants' pending motions to dismiss. On Sept. 15, 2020, the Cross- Defendants filed their replies thereto. II. Analysis A. Cross-Defendant Pineda's Motion to Dismiss under Rule 12(b)(6) In her motion to dismiss, the Cross-Defendant Pineda argues that Sun Valley's crossclaims against her should be dismissed under Rule 12(b)(6) for failure to state a claim because "all of the constitutional challenges raised by Sun Valley require state action." She contends that Sun Valley has not and cannot state a cognizable claim under 42 U.S.C. Section 1983 against her, a private litigant, because she was not a "state actor" and was not "acting under color of state law," a necessary element for a Section 1983 claim. Pineda also contends that Sun Valley has not and cannot state any of its claims under the California Constitution against her because those claims similarly require state action to be cognizable. In short, Pineda argues that "the mere filing of a PAGA action does not convert an aggrieved employee into a state actor, such that the employee may then be sued by its employer for claims against the State." In its opposition, Sun Valley counters that it has sufficiently alleged that the Plaintiff was acting under color of state law. It contends that the California Supreme Court has "consistently and conclusively determined that in an employee's PAGA claim (such as Pineda's) the employee acts as an agent and proxy for the state agency and therefore, constitutes a 'Person Acting Under the Color of State Law' that constitutes 'State Action.'" Judge Drozd concludes that Sun Valley has failed to state any cognizable claims against Pineda because it has not sufficiently alleged "state action," a requisite element for Sun Valley's claims. Thus, he will grant Pineda's motion to dismiss, without leave to amend. Although Sun Valley requests that the Court grants leave to amend, Sun Valley does not proffer any allegations that it could include in any further amended cross-complaint. Moreover, granting leave to amend would be futile because the deficiency in failing to allege "state action" by Pineda cannot be cured by allegations of additional facts. B. State Cross-Defendants' Motion to Dismiss 1. Propriety of the State Cross-Defendants' Motion to Dismiss As a preliminary matter, Judge Drozd first addresses Sun Valley's two arguments regarding the propriety of the State Cross-Defendants' motion to dismiss. In its opposition, Sun Valley argues that the State Cross-Defendants' motion should be submitted to arbitration because Sun Valley's motion to compel individual arbitration of Plaintiff Pineda's claims remains pending before the Court. However, Sun Valley does not cite any legal authority to support this argument, particularly where none of the State Cross-Defendants entered into any arbitration agreement with Sun Valley. Moreover, in moving to compel arbitration of Plaintiff Pineda's claims, Sun Valley did not seek to compel arbitration of its amended cross-complaint, as brought against Pineda or the State Cross-Defendants. Thus, Sun Valley's argument that the State Cross-Defendants' motion to dismiss should be submitted to arbitration is unpersuasive and lacks merit. Sun Valley also stresses that the State Cross-Defendants' motion is "not based on any ground listed in Federal Rule of Civil Procedure 12(b)," and appears to critique the pending motion to dismiss for not invoking Rule 12 or its enumerated grounds for dismissal. However, the State Cross-Defendants did not need to invoke Rule 12 in order to raise their request that the Court declines to entertain Sun Valley's amended cross-complaint. The State Cross-Defendants' motion to dismiss is not procedurally improper. Accordingly, Judge Drozd addresses the merits of the State Cross-Defendants' motion to dismiss Sun Valley's amended cross-complaint, which asserts only a declaratory relief claim, specifically seeking a court order declaring that PAGA is unconstitutional and unenforceable. 2. Legal Standard Prudential guidance for retention of the district court's authority is found in Brillhart v. Excess Insurance Company of America, 316 U.S. 491 (1942), and its progeny." The Brillhart factors "remain the philosophic touchstone for the district court" and provide that the court should: "avoid duplicative litigation"; "discourage litigants from filing declaratory actions as a means of forum shopping"; and "avoid needless determination of state law issues." Other considerations include: "whether the declaratory action will settle all aspects of the controversy; whether the declaratory action will serve a useful purpose in clarifying the legal relations at issue; whether the declaratory action is being sought merely for the purposes of procedural fencing or to obtain a 'res judicata' advantage; or whether the use of a declaratory action will result in entanglement between the federal and state court systems." Essentially, the district court "must balance concerns of judicial administration, comity, and fairness to the litigants." 3. Whether the Court Should Entertain Sun Valley's Amended Cross-Complaint Judge Drozd considers each of the Brillhart and other factors, and determines, in his discretion, whether to entertain or dismiss Sun Valley's amended cross-complaint for declaratory relief. a. Avoid Duplicative Litigation As to the first Brillhart factor, the State Cross-Defendants emphasize that Sun Valley's amended "cross-complaint is virtually identical to a lawsuit filed in state court in 2018 challenging the facial constitutionality of PAGA" -- California Business & Industrial Alliance v. Becerra, No. 30-2018-01035180-CV-JR-CXC, (Orange County Sup. Ct.) (hereinafter, "CBIA") -- in which the state court "rejected each of the claims pled in that case on the merits." In its opposition, rather than address whether the CBIA action is duplicative as the state cross-defendants assert, Sun Valley contends only that the CBIA action is not a "parallel state proceeding" because that action involved different legal issues and neither Sun Valley nor plaintiff Pineda were parties to that action. Judge Drozd finds that declining to entertain Sun Valley's amended cross-complaint would avoid duplicative litigation, and thus consideration of this factor weighs in favor of granting the State Cross-Defendants' motion to dismiss. b. Discourage Forum Shopping As to the second Brillhart factor, the State Cross-Defendants argue that Sun Valley's cross-complaint "is a transparent effort at forum shopping." In its opposition, Sun Valley does not dispute that it intentionally sought a federal forum for its challenge to PAGA, though it contends that its "federal court filing was made not as a matter of forum shopping but because the federal court is the best unbiased forum for the determination of federal constitutional rights and privileges. Judge Drozd finds that declining to entertain Sun Valley's amended cross-complaint would discourage forum shopping, and thus consideration of this factor weighs in favor of granting the state cross-defendants' motion to dismiss. The timing of Sun Valley's removal and cross-complaint coupled with the Orange County Superior Court's rulings in CBIA certainly suggest a degree of forum shopping by Sun Valley. c. Avoid Needless Determination of State Law As to the final Brillhart factor, the State Cross-Defendants argue that entertaining Sun Valley's amended cross-complaint would require needless determination of "numerous complicated issues of state law," since more than half of Sun Valley's claims allege violations of the California Constitution and all of its claims "hinge on allegations about the nuances of California courts' application of PAGA and the actions of parties not before the Court in prosecuting and litigating PAGA cases in California courts statewide." In its opposition, Sun Valley disagrees with the State Cross-Defendants' framing of this factor as relating to the "complicated" nature of PAGA and instead emphasizes its own, contrary view of this factor's focus: The "substantial need to resolve the constitutional issues of PAGA," which according to Sun Valley, does not require interpretation of PAGA's provisions. Judge Drozd finds that consideration of this factor also weighs in favor of granting the State Cross-Defendants' motion to dismiss. Although he recognizes that Sun Valley brings claims arising under both the U.S. Constitution and the California Constitution, he agrees that the inclusion of some federal claims is not dispositive on the question of whether a federal court should entertain the declaratory relief action. He is persuaded that adjudicating Sun Valley's amended cross-complaint would involve at least some needless determination of state law. Moreover, a declaratory action need not be wholly based on state law for a district court to appropriately decline to exercise jurisdiction. d. Other Considerations Having concluded that consideration of the Brillhart factors weigh in favor of declining to entertain Sun Valley's amended cross-complaint for declaratory relief, Judge Drozd briefly addresses a few other relevant factors, which further support his conclusion in this regard. Having considered the Brillhart factors and other considerations, and balancing concerns of judicial administration, comity, and fairness to the litigants, he concludes that he should exercise its discretion and decline to entertain Sun Valley's amended cross-complaint. Accordingly, he grants the State Cross-Defendants' motion to dismiss Sun Valley's amended cross-complaint. III. Conclusion For all of the reasons he set forth, Judge Drozd granted (i) Pineda's motion to dismiss Sun Valley's amended cross-complaint without leave to amend; (ii) the State Cross-Defendants' requests for judicial notice; (iii) the State Cross-Defendants' motion to dismiss Sun Valley's amended cross-complaint. Sun Valley's amended cross-complaint is dismissed in its entirety. The Clerk of the Court is directed to update the docket to reflect that the Cross-Claimant and Cross-Defendants have been terminated from the action as follows: a. Sun Valley is terminated as a cross-claimant from the action, but Sun Valley remains as a named Defendant in the action; b. Cross-Defendant Leticia Pineda is terminated as a Cross-Defendant from the action, but Plaintiff Pineda remains as a named Plaintiff in the action; c. Cross-Defendant Becerra is terminated as a named Cross-Defendant in the action; d. Cross-Defendant Brower is terminated as a named Cross-Defendant in the action; e. Cross-Defendant Su is terminated as a named Cross-Defendant in the action; and f. Cross-Defendant California Labor and Workforce Development Agency is terminated as a named Cross-Defendant in the action. A full-text copy of the Court's April 29, 2022 Order is available at https://tinyurl.com/mrjexbv2 from Leagle.com. SUPERIOR HOTEL: Faces Davis FLSA Suit in W.D. Arkansas ------------------------------------------------------ KRISTY DAVIS and KRISTY ROGERS, individually and on behalf of all others similarly situated, Plaintiffs v. SUPERIOR HOTEL PROPERTIES, INC. and SUPERIOR HOTEL MANAGEMENT, INC., Defendants, Case No. 2:22-cv-02079-PKH (W.D. Ark., May 9, 2022) is a class action against the Defendants for violation of the Fair Labor Standards Act. Superior Hotel Properties, Inc. is a hotel management company based in Arkansas. Superior Hotel Management, Inc. is a hotel management company based in Arkansas. [BN] The Plaintiffs are represented by: Christopher Hooks, Esq. ROBERTSON, BEASLEY, SHIPLEY & ROBINSON, PLLC 315 N. 7th Street Fort Smith, AR 72901 Telephone: (870) 674-7342 E-mail: chooks@rbsr-attorneys.com SYRACUSE UNIVERSITY: Settles Gender Pay Inequity Class Action ------------------------------------------------------------- The Daily Orange reports that female faculty members at Syracuse University received notice from the Kings County Supreme Court over both email and mail in April that a class action lawsuit regarding gender pay inequity had been settled by the university. The lawsuit was settled in October 2021. According to a copy of the settlement agreement obtained by The Daily Orange, the total settlement fund for the lawsuit was $3,713,000. The court will hold a fairness hearing to determine whether or not to approve the settlement on Aug. 10, before which members of the class need to opt in, opt out or object to the amount. "It's amazing they settled at all, but the settlement is insulting," said Deborah Pellow, who worked for 45 years as a professor in the Maxwell School of Citizenship and Public Affairs before retiring in May 2021. "I know, from my own experience – the inequity – and it's astounding." Pellow was not one of the five named plaintiffs. In 2017, the SU University Senate's Faculty Salary Review Committee released a report that revealed salaries for female faculty members were generally lower than for their male colleagues. The gap was especially noticeable in non-tenure positions. Female professors made 77% of what their male counterparts made, on average, while female associate and assistant professors made 83% of what their male counterparts made. Denise Heckman, an associate professor in the College of Visual and Performing Arts' School of Design, said the disparity has stuck with her, and the settlement won't solve the issue. "It's always on your shoulders . . . this is my life. And when I retire, I'm not going to have the same money that someone else had just because they're a male," Heckman said. "You can't really sweep something like that under the rug." The court agreed to allocate $3 million for full-time tenured or tenure-track professors and associate professors, $340,000 for full-time tenured or tenure-track assistant professors and $300,000 for non-tenure track professors and associate professors. The court allocated the remaining $73,000 for non-tenure track assistant professors. Salaries of staff members at SU were not mentioned in the report or the class action. One third of the settlement will go toward attorney's fees, according to the agreement. In the class action, the law firm Outten & Golden represented the plaintiffs, five of whom were named. All female professors, assistant professors and associate professors employed by SU between Jan. 8, 2014, through Oct. 1, 2021, may be entitled to be part of the settlement. In September 2018, almost eight months after the report, then-Provost Michele Wheatly said during a University Senate meeting that the university had eliminated the faculty gender pay gap by investing $1.8 million in salary adjustments. But, while Wheatly said administrators and the deans of each college worked together to allocate the funds, some senators said at the time that some deans didn't properly do so. Sarah Scalese, SU's senior associate vice president for communications, said in an email statement to The Daily Orange that the size of the adjustments was determined by the Office of Faculty Affairs, not by the deans. The deans did inform the faculty of the Office of Faculty Affairs' adjustments, Scalese said. "It's quite simple. It wasn't fixed," Pellow said. "It depended on the deans of the colleges . . . the deans are the ones who are responsible for the inequities to begin with." Despite agreeing to the settlement, SU did not acknowledge any wrongdoing and denies the allegations made by the plaintiffs, the agreement reads. Heckman was not a named plaintiff in the class action but received the settlement notice. She said the amount of the settlement was too low to properly address the discrepancy in pay. Though she expected it, the amount was still difficult to stomach. "I was kind of bracing for it . . . but it's still hard to read that," Heckman said. "But, in another way, I feel really good because we need to do this. We needed to win something like that to make a point." Diane Grimes, an associate professor of communication and rhetorical studies in VPA, said her reaction to the settlement agreement was complicated. "It doesn't make us whole," Grimes said. "Going forward, we keep organizing, we keep talking to each other, we keep trying to think about ways that we can persuade the university to do better." Tula Goenka, a television, radio and film professor in the Newhouse School of Public Communications, was one of the five lead plaintiffs named in the lawsuit. She was relieved that a settlement was reached but said faculty and the university need to move forward to next steps. "This is not the end of the process," Goenka said. "It's only the middle, and there's a lot to be done to make sure that we don't fall into the patterns of the past." Shobha Bhatia, a civil and environmental engineering professor, said, while she's happy that a settlement was offered, SU needs to establish the proper structures to ensure it's working towards equity. "It was moving in a positive direction," Bhatia said. "The goal is to have a system in place so that we are moving in a direction where people are paid a fair amount of compensation for the work." Heckman said female faculty should push for change rather than be satisfied by just the settlement. "What I think we should do now . . . is get together and hold their feet to the fire and say, 'We know that this did not make up for what we lost,'" she said. "We know that, so don't even claim that, but fix it going forward." [GN] TALBOTS INC: Dawkins Files ADA Suit in E.D. New York ---------------------------------------------------- A class action lawsuit has been filed against The Talbots, Inc. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. The Talbots, Inc., Case No. 1:22-cv-02637 (E.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Talbots -- http://www.talbots.com/-- is an American specialty retailer and direct marketer of women's clothing, shoes and fashion accessories.[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 TASTES ON THE FLY: Chowdhury Files Suit Over Alleged Tip Skimming ----------------------------------------------------------------- ABUL CHOWDHURY; RASEL AHMED; and JAHANGIR AHMED, individually and on behalf of all others similarly situated, Plaintiffs v. TASTES ON THE FLY NEW YORK, LLC; and FLIGHT CENTER HOTEL LLC, Defendants, Case No. 1:22-cv-02682 (E.D.N.Y., May 9, 2022) seek to recover all tips kept by the Defendants, liquidated damages, interest, and attorneys' fees and costs. The Plaintiffs were employed by the Defendants as kitchen staffs. TASTES ON THE FLY NEW YORK, LLC is a specialty restaurant operator. [BN] The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Tel: (516) 873-9550 TECHNIQUE GOLF: Abreu Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Technique Golf, L.L.C. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Technique Golf, L.L.C., Case No. 1:22-cv-03685 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Technique Golf -- http://www.superstrokeusa.com/-- is located in Wixom, Michigan and is part of the Other Miscellaneous Manufacturing Industry.[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 TEKSYSTEMS INC: Avery Wage-and-Hour Suit Goes to N.D. California ---------------------------------------------------------------- The case styled BO AVERY, PHOEBE RODGERS, KRISTY CAMILLERI, and JILL UNVERFERTH, on behalf of themselves and all others similarly situated v. TEKSYSTEMS, INC., Case No. CGC-22-597900, was removed from the Superior Court of the State of California in and for the County of San Francisco to the U.S. District Court for the Northern District of California on May 6, 2022. The Clerk of Court for the Northern District of California assigned Case No. 3:22-cv-02733 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Business and Professions Code including unpaid overtime; failure to timely pay wages upon termination; failure to provide and maintain timely, accurate, itemized wage statements; meal break violations; rest break violations; unlawful, unfair, and/or deceptive business practices; and civil penalties. TEKsystems, Inc. is an information technology (IT) service management company headquartered in Hanover, Maryland. [BN] The Defendant is represented by: Andrew L. Scroggins, Esq. SEYFARTH SHAW LLP 233 South Wacker Drive, Suite 8000 Chicago, IL 60606-6448 Telephone: (312) 460-5000 Facsimile: (312) 460-7000 E-mail: ascroggins@seyfarth.com - and – Brian P. Long, Esq. SEYFARTH SHAW LLP 601 South Figueroa Street, Suite 3300 Los Angeles, California 90017-5793 Telephone: (213) 270-9600 Facsimile: (213) 270-9601 E-mail: bplong@seyfarth.com TESLA INC: Talley Wage-and-Hour Suit Removed to C.D. California --------------------------------------------------------------- The case styled DEMETRICE TALLEY, individually and on behalf of all others similarly situated v. TESLA, INC., dba TESLA MOTORS, INC., and DOES 1-50, inclusive, Case No. 22STVC06572, was removed from the Superior Court of the State of California, County of Los Angeles, to the U.S. District Court for the Central District of California on May 9, 2022. The Clerk of Court for the Central District of California assigned Case No. 2:22-cv-03125 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Business and Professions Code including failure to pay wages including overtime; failure to provide meal periods; failure to provide rest periods; failure to pay timely wages; failure to provide accurate itemized wage statements; failure to indemnify necessary business expenses; and unfair business practices. Tesla, Inc., doing business as Tesla Motors, Inc., is an American automotive and clean energy company based in Austin, Texas. [BN] The Defendant is represented by: Brian D. Berry, Esq. Andrea Fellion, Esq. Kassia Stephenson, Esq. MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105-1596 Telephone: (415) 442-1000 Facsimile: (415) 442-1001 E-mail: brian.berry@morganlewis.com andrea.fellion@morganlewis.com kassia.stephenson@morganlewis.com THATS EPIC: Abreu Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Thats Epic! LLC. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Thats Epic! LLC, Case No. 1:22-cv-03617-JPC (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. That's Epic -- https://thatsepicstuff.com/ -- products use natural ingredients designed to nourish, replenish, and cleanse.[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 TIMILON CORPORATION: Mejia Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Timilon Corporation. The case is styled as Richard Mejia, individually, and on behalf of all others similarly situated v. Timilon Corporation, Case No. 1:22-cv-03679 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Timilon Corporation -- https://timilon.com/ -- is an innovative and rapidly growing company, focused on the development and commercialization of proprietary nano-chemistry technologies and materials.[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 TOUR EDGE: Abreu Files ADA Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against Tour Edge Golf Manufacturing, Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Tour Edge Golf Manufacturing, Inc., Case No. 1:22-cv-03684 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Tour Edge Golf -- https://www.touredge.com/ -- is a manufacturer and distributor of golf clubs under the brand names Tour Edge and Exotics.[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 TRUEACCORD CORP: Spira Files FDCPA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against TrueAccord Corp. The case is styled as Nathan Spira, on behalf of himself and all other similarly situated consumers v. TrueAccord Corp., Case No. 1:22-cv-02593 (E.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. TrueAccord -- https://www.trueaccord.com/ -- is a digital debt collection agency that is reinventing the collections experience.[BN] The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, P.C. 735 Central Avenue Woodmere, NY 11598 Phone: (516) 668-6945 Email: fishbeinadamj@gmail.com TWITTER INC: Former Pres. Donald Trump's Censorship Suit Dismissed ------------------------------------------------------------------ Taiyler Simone Mitchell at businessinsider.com reports that a judge dismissed a lawsuit in which former president Donald Trump attempted to reclaim his access to Twitter after being barred from the platform the day after the January 6 insurrection. Twitter said in a statement it "permanently suspended" Trump's account on January 7, 2021, "due to the risk of further incitement of violence." Trump's complaint, filed in July 2021, alleged that the social media company "engaged in impermissible censorship" and thus rose "beyond that of a private company to that of a state actor." San Francisco federal district court James Donato argued that the "complaint does not plausibly allege that Twitter acted as a government entity when it closed plaintiffs' accounts." "Much of what plaintiffs challenge fits within the normal boundaries of a congressional investigation, as opposed to threats of punitive state action," the order read. Trump and the other plaintiffs have until May 26 to amend their complaint though "further opportunities to amend are not likely to be granted." Trump has since created his own Twitter alternative called Truth Social which launched in February. [GN] TWITTER INC: Orlando Police Balks Over Musk's Proposed Takeover --------------------------------------------------------------- ORLANDO POLICE PENSION FUND, on behalf of itself and all other similarly situated stockholders of TWITTER, INC., v. TWITTER, INC., PARAG AGRAWAL, MIMI ALEMAYEHOU, JACK DORSEY, EGON DURBAN, MARTHA LANE FOX, OMID KORDESTANI, FEI-FEI LI, PATRICK PICHETTE, DAVID ROSENBLATT, BRET TAYLOR, ROBERT ZOELLICK, and ELON MUSK, Case No. 2022-0396 (Del. Ch., May 6, 2022) is a class action for declaratory judgment that Musk is an "interested stockholder" within the meaning of Section 203 and that the Proposed Takeover may not lawfully close within three years of the time that Musk became an "interested stockholder," unless the Proposed Takeover is approved by the affirmative vote of at least 66 and 2/3 % of Twitter's outstanding voting stock not "owned" by Musk within the meaning of Section 203; and (ii) to hold the members of the Board accountable for their failure to properly condition the Proposed Takeover on the 66 and 2/3% vote required by Section 203. On April 25, 2022, Twitter entered into an Agreement and Plan of Merger to be acquired by an entity wholly-owned by Elon Musk in exchange for $54.20 per share in an all-cash deal valued at approximately $44 billion, subject to approval by a simple majority of Twitter's outstanding voting stock. Because Musk was an "interested stockholder" under 8 Del. C. section 203 ("Section 203") before the Merger Agreement was approved by Twitter's board of directors (the "Board"), however, the Proposed Takeover may not lawfully close until 2025 absent approval by the affirmative vote of 66 and 2/3 % of Twitter's voting stock not "owned" by Musk within the meaning of Section 203. Musk began acquiring Twitter shares in January 2022 and owned approximately 9.6% of Twitter's outstanding voting stock when the Board approved the Proposed Takeover. In connection with his efforts to acquire Twitter, Musk also had an "agreement, arrangement or understanding" within the meaning of Section 203 with at least two other significant beneficial owners of Twitter's outstanding voting stock: (i) Morgan Stanley, which beneficially owns approximately 8.8% of Twitter's outstanding voting stock and serves as Musk's financial adviser and primary financier in connection with the Proposed Takeover; and (ii) Twitter co-founder, former CEO, and director Jack Dorsey ("Dorsey"), who beneficially owns approximately 2.4% of Twitter's outstanding voting stock, encouraged Musk to take Twitter private through the Proposed Takeover, and appears likely to receive equity in the newly-private Company following the Proposed Takeover should it close, says the suit. Additionally, according to public reporting, it appears likely Musk also had and has additional AAUs with other significant holders of Twitter common stock whose support for the Proposed Takeover Musk secured prior to the Twitter Board's approval of the deal. The Merger Agreement, however, incorrectly states that in the three years prior to its execution Musk was not an "‘interested stockholder' (as defined in Section 203 of the DGCL) of the Company"; and (ii) the Proposed Takeover may lawfully close this year provided that it is approved by the "affirmative vote of a majority of the outstanding shares of Company Common Stock entitled to vote," including such stock owned by Musk. The Plaintiff seeks a prompt trial to ensure the vote of Twitter stockholders on the Proposed Takeover is properly informed concerning the applicability of Section 203 and its implications for the Proposed Takeover and the interests of Twitter's public stockholders in connection therewith. The Plaintiff is, and at all relevant times has been, a beneficial owner of Twitter common stock. Twitter is a Delaware corporation headquartered in San Francisco, California. Twitter has a single class of voting common stock, which trades on the New York Stock Exchange under the ticker symbol TWTR. The Individual Defendants are officers of the company.[BN] The Plaintiff is represented by: David Wales, Esq. Adam Warden, Esq. Thomas Curry, Esq. Tayler D. Bolton, Esq. SAXENA WHITE P.A. 10 Bank St., 8th Floor White Plains, NY 10606 Telephone: (914) 437-8551 1000 N. West Street, Suite 1200 Wilmington, DE 19801 (302) 485-0483 E-mail: tcurry@saxenawhite.com tbolton@saxenawhite.com - and - Jeremy Friedman, Esq. David Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 Telephone: (888) 529-1108 UNDER ARMOUR: Fails to Pay Proper Wages, Cardenas Suit Alleges -------------------------------------------------------------- BRENDA CARDENAS, individually and on behalf of all others similarly situated, Plaintiff v. UNDER ARMOUR RETAIL, INC.; UNDER ARMOUR, INC.; UNDER ARMOUR RETAIL OF CALIFORNIA, LLC; and DOES 1 through 50, inclusive, Defendants, Case No. 3:22-cv-00647-RBM-BLM (S.D. Cal., May 9, 2022) is a class action against the Defendant for failure to include all required forms of remuneration in the "regular rate" of pay used to lawfully calculate and pay certain wages and premiums to employees under state and federal employment laws, among other issues such as Defendants' untimely payment of vacation wages, waiting time penalties, and wage statement violations Plaintiff Cardenas was employed by the Defendants as staff. UNDER ARMOUR, INC. develops, markets, and distributes branded performance products for men, women, and youth. [BN] The Plaintiff is represented by: Nicholas J. Ferraro, Esq. Lauren N. Vega, Esq. Elida M. Espinoza, Esq. FERRARO VEGA EMPLOYMENT LAWYERS, INC. 3160 Camino del Rio South, Suite 308 San Diego, CA 92108 Tel: (619) 693-7727 Fax: (619) 350-6855 Email: lauren@ferrarovega.com nick@ferrarovega.com UNITED STATES: Court Narrows Claims in Medrano v. Prisons Bureau ---------------------------------------------------------------- In the case, LAURA MEDRANO, et al., Plaintiffs v. THE UNITED STATES, Defendant, Case No. 20-1245C (Fed. Cl.), Judge Stephen S. Schwartz of the U.S. Court of Federal Claims granted in part and denied in part the Defendant's Motion to Dismiss the Amended Complaint. I. Background The Plaintiffs -- current and former employees of the Federal Bureau of Prisons at various federal correctional facilities throughout the United States -- seek overtime compensation under the Fair Labor Standards Act ("FLSA") and premium pay under the Federal Employees Pay Act ("FEPA"), plus related forms of relief, for allegedly compensable pre- and post-shift activities. In their Amended Complaint, the Plaintiffs request backpay and liquidated damages under FLSA, as well as interest on their backpay under the Back Pay Act, premium pay under FEPA, 5 U.S.C. Section 5545, attorneys' fees, and declaratory relief. The Plaintiffs are current or former correctional workers at federal prisons throughout the United States. They allege that their "primary job duty was to manage and oversee the inmate population at the prison centers, to ensure safety at the prisons, and to maintain security at the prisons." To perform that duty, the Plaintiffs allege that they "searched for contraband and provided security, counted, fed, and supervised detainees and inmates." The Plaintiffs' workdays are organized into 8-hour shifts at assigned duty posts. They allege that "because the scheduled shift is for 8 hours, the Defendant only pays for 8 hours even if the correctional officer performs work lasting longer than 8 hours." The Plaintiffs allege that various pre- and post-shift activities are unpaid. The pre- and post-shift activities at issue include (1) pre-shift security screening, (2) gathering and donning equipment, (3) walking to the assigned post and completing a pre-shift briefing with the outgoing officer(s), and (4) completing a post-shift briefing with the oncoming officer(s) and walking from the post to return equipment at the end of the day. The Defendant's motion to dismiss is ripe for disposition. II. Discussion A. Jurisdiction The Plaintiffs' claims for uncompensated work time arise under FLSA, which is a money-mandating source of law. Because they are government employees seeking backpay and related relief under FLSA, Judge Schwartz holds that they have standing to raise those claims. The Plaintiffs appear to claim that the challenged pay practices were in effect through the date the Amended Complaint was filed. Some of the Plaintiffs were allegedly employed by the Defendant when the Amended Complaint was filed, and so have claims that accrued within the statute of limitations. Judge Schwartz holds that at least some of the Plaintiffs' claims therefore appear to be timely. B. Merits 1. Plaintiffs' "Principal Activities" The Plaintiffs, again, are entitled to compensation for their work, a term that includes the principal activities they are "employed to perform," plus "all activities which are an 'integral and indispensable part of the principal activities.'" The first step is to define Plaintiffs' principal activities, as set out in Plaintiffs' factual allegations. Judge Schwartz finds that their principal activity is "to manage and oversee the inmate population at the prison centers, to ensure safety at the prisons, and to maintain security at the prisons." They allege that they "were responsible for the custody and discipline of inmates and detainees held" at the facilities. The Plaintiffs also allege that they have other duties such as "searching for contraband and counting, feeding, and supervising detainees," "remaining vigilant at all times, observing and correcting inmate behavior, responding to any security breaches, and identifying any safety issues." Therefore, Judge Schwartz holds that that the Plaintiffs' principal activity involves those responsibilities is a factual allegation entitled to the presumption of truth. 2. FLSA Claim Given that the Amended Complaint adequately defines the Plaintiffs' principal activities, the next question is whether it permits a reasonable inference that the allegedly uncompensated functions at issue are part of those activities and more than de minimis. First, Judge Schwartz opines that there are no facts consistent with the pleadings that the Plaintiffs might adduce to show that undergoing screening is part of their productive work, or that screening itself is integral and indispensable to that work. Even if the Plaintiffs proved that excluding contraband is essential to prison administration and that they cannot do their jobs if contraband were inside, the case would end up right back where it is, asking whether time spent in screenings is integral and indispensable to the Plaintiffs' work -- a legal question which must be answered in the negative. Second, the Plaintiffs allege that their equipment includes "radios, handcuffs, pepper sprays, and keys," and that donning the equipment is necessary for their work. The materials the Plaintiffs mention might plausibly be specialized rather than generic, and so time spent donning them may be compensable. There is no way to resolve that question on the pleadings, which must be interpreted in the Plaintiffs' favor. Whatever the exact standard might be for determining the compensability of time spent donning different kinds of equipment, applying it will require facts. Third, Judge Schwartz finds that the Plaintiffs have plausibly alleged that obtaining information during the security briefing is integral and indispensable to their principal activities. The remaining questions can await development on the merits. Lastly, Judge Schwartz holds that (i) the Court lacks authority to issue declaratory judgments under the Declaratory Judgment Act, so any claims or requests for relief the Plaintiffs seek under that statute must be dismissed for lack of jurisdiction under RCFC 12(b)(1); and (ii) he deems the Defendant's present argument against the Back Pay Act ("BPA") claims abandoned for present purposes. If the availability, nature, or measure of compensation under the BPA becomes relevant at a later stage of the case, the parties may reopen the issue. III. Conclusion Judge Schwartz concludes that although some aspects of the Amended Complaint fail as a matter of law -- in particular, the Plaintiffs' claims involving time spent in pre-shift security screenings and certain claims over which this Court lacks jurisdiction -- he says the remainder sets out well-pleaded facts sufficient to state claims upon which relief can be granted. Accordingly, he granted the Defendant's Motion to Dismiss as to the Plaintiffs' claims (1) related to the Plaintiffs' security and health screenings, and (2) arising under the Declaratory Judgment Act. He denied in all other respects. In their Response, the Plaintiffs request leave to amend their pleadings in the event that Judge Schwartz grants any part of the Defendant's Motion. Because the parties have agreed that "there are no legal or factual questions" in the case that distinguish it from Alkire v. United States, No. 20-1654C, 2022 WL 575626 (Fed. Cl. Feb. 25, 2022), it is not clear if the Plaintiffs still wish to amend. Leave to amend is therefore denied without prejudice. The parties are ordered to submit a joint status report proposing further proceedings no later than May 31, 2022. A full-text copy of the Court's April 29, 2022 Opinion & Order is available at https://tinyurl.com/fzbcps6h from Leagle.com. Don J. Foty -- dfoty@hftrialfirm.com -- Hodges & Foty, LLP, in Houston, Texas, for the Plaintiffs. With him on briefs were David W. Hodges, Hodges & Foty LLP, in Houston, Texas, and Anthony J. Lazzaro -- contactus@lazzarolawfirm.com -- The Lazzaro Law Firm, LLC, in Moreland Hills, Ohio. David M. Kerr, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, in Washington, D.C., for Defendant United States. With him on briefs were Brian M. Boynton Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, Martin F. Hockey, Jr., Acting Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, in Washington, D.C., as well as John T. LeMaster Senior Counsel, Staff Training Academy, in Glynco, Georgia. URBN US RETAIL: Dawkins Seeks Blind's Equal Access to Website ------------------------------------------------------------- ELBERT DAWKINS, on behalf of himself and all others similarly situated, Plaintiff v. URBN US RETAIL, LLC, Defendant, Case No. 1:22-cv-02629-HG (E.D.N.Y., May 6, 2022) is a class action against the Defendant for violations of the Americans with Disabilities Act and the New York City Human Rights Law. According to the complaint, the Defendant has failed to design, construct, maintain, and operate its website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. The Defendant's website, www.freepeople.com, contains access barriers which hinder the Plaintiff and Class members to enjoy the benefits of its online goods, content, and services offered to the general public through the website. These access barriers include, but not limited to: (a) lack of alternative text (alt-text), or a text equivalent; (b) fail to add a label element or title attribute for each field; (c) contain the same title elements; and (d) contain a host of broken links. The Plaintiff and Class members seek permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's website will become and remain accessible to blind and visually-impaired individuals. Urbn US Retail, LLC is an online retail company doing business in New York. [BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 E-mail: mrozenberg@steinsakslegal.com VEON LTD: Rosen Law Named Lead Counsel in Securities Class Suit --------------------------------------------------------------- In the case, IN RE VEON LTD. SECURITIES LITIGATION, Case No. 15 Civ. 8672 (ALC) (OTW) (S.D.N.Y.), Magistrate Judge Ona T. Wang of the U.S. District Court for the Southern District of New York denied Stan Sinitsa's motions for appointment as Lead Plaintiff and motion for appointment of Lead Counsel; and granted Boris Lvov's motion for appointment as Lead Plaintiff and for appointment of Lead Counsel. I. Overview Judge Wang's opinion considers two competing Motions for Appointment of Lead Plaintiff in a securities fraud class action brought on behalf of certain shareholders of VimpelCom. VimpelCom, a large telecommunications company with business all over the world, paid millions of dollars in bribes to the eldest daughter of Uzbekistan's president in order to receive favorable treatment in the country. The subsequent disclosure of these payments, as well as disclosures concerning criminal investigations into the company, caused a drop in its stock price and concomitant losses for its shareholders, leading to the putative class action. The two competing Motions for Appointment as Lead Plaintiff are brought by Lvov and a group of Plaintiffs comprised of Sherman Steele, Leonard Karpwich, and Stan Sinitsa ("SKS"). Both movants propose to replace prior Lead Plaintiff Westway, which has been dismissed from the action for lack of standing. Lvov originally sought and was denied Lead Plaintiff status in 2015, and has been participating in the litigation since that time. SKS became parties to the litigation more recently, by being added as Named Plaintiffs in the Second Amended Complaint filed on April 14, 2020. II. Background and Procedural History The securities class action was brought on behalf of individuals who purchased VEON shares between June 30, 2011 and Nov. 3, 2015, alleging violations of the Securities Exchange Act of 1934 and Rule 10b-5.2. The SAC alleges that during the relevant class period, the Defendants made false and misleading statements, failed to disclose adverse material facts about VEON's business, operations, and prospects, and that the disclosure of these acts and omissions caused a precipitous decline in VEON's stock price. The Defendant's wrongful conduct during the relevant period gave rise to investigations by the Securities and Exchange Commission ("SEC") and the United States Department of Justice ("USDOJ"). During the pendency of the action, VEON entered into a deferred prosecution agreement ("DPA") with the USDOJ, pursuant to which VEON pleaded guilty to a two-count criminal information charging the company with conspiracy to violate the anti-bribery and books and records provisions of the Foreign Corrupt Practices Act of 1977 ("FCPA"). That DPA describes in detail the facts in the criminal information against VEON. In the DPA, VEON admits that between 2005 and 2012, VEON made or attempted to make millions of dollars in bribes to Gulnara Karimova, the eldest daughter of Uzbekistan's President, in an effort to receive favorable treatment in Uzbekistan. Between March 12, 2014, and Nov. 3, 2015, several events related to this misconduct caused the price of VEON's American Depository Receipts to decline: (1) on March 12, 2014, VEON made the first of several disclosures concerning investigations into the company by both the SEC and the USDOJ; (2) on Aug. 13, 2015 it was reported that United States authorities had asked their European counterparts to seize approximately $1 billion in assets from various companies, including VEON, that were implicated in a wide-ranging criminal probe of corruption for paying millions of dollars in bribes to Karimova; and (3) VEON announced it had reserved $900 million for litigation costs. The instant action was first filed on Nov. 4, 2015 by Charles Kux-Kardos against VEON and several individual defendants (Jean-Yves Charlier, Jo Lunder, Alexander Izosimov, Andrew Mark Davies, and Cornelis Hendrik van Dalen, the "Individual Defendants") who had served either as Chief Executive Officer or CFO of the company. As required by the Private Securities Litigation Reform Act of 1995, Kux-Kardos' counsel issued notice on Nov. 4, 2015, inviting any member of the purported class to move to serve as lead plaintiff. Purported class members then had 60 days within which to "move to serve as lead plaintiff." Several putative class members responded to the notice and moved to be appointed lead plaintiff, including Plaintiff Westway Alliance Corp. and then-plaintiff group, Boris Lvov and Richard McColloch. Named Plaintiffs Sherman Steele, Leonard Karpwich, and Stan Sinitsa did not file motions to be appointed lead plaintiff, or otherwise appear, during the 60 day period, either individually or as a group. On April 27, 2016, Judge Andrew Carter consolidated this action with another one pending before the Court (No. 15 Civ. 09492), appointed Westway as Lead Plaintiff, and approved Westway's choice of counsel. On May 6, 2016, Lvov and McColloch filed a motion for reconsideration of the appointment of Westway as Lead Plaintiff, arguing that Westway had not suffered any recoverable losses because it had impermissibly calculated its losses based on stock price declines during intraday trading, rather than prices at closing. Judge Carter denied their motion, reasoning, inter alia, that courts have frequently allowed cases to proceed based on intraday price fluctuations, and questions concerning the proper way to measure price drop and whether causation exists are factual inquiries that should not be determined on the pleadings. After consolidating the case and appointing Westway as the Lead Plaintiff, Westway filed an Amended Complaint on behalf of individuals who purchased VEON securities between Dec. 4, 2010 and Nov. 3, 2015. VEON then moved to dismiss for failure to state a cause of action under Rule 10b-5. On Sept. 19, 2017, Judge Carter granted the motion in part and denied in part, ruling that the Amended Complaint did not sufficiently allege loss causation for any individual who both purchased and sold their shares before March 12, 2014, the day of the first partial disclosure. On May 17, 2019, VEON then filed a motion for Judgment on the Pleadings, arguing that the September 2017 Order altered the class period to those investors who purchased VEON shares between June 30, 2011 and Nov. 3, 2015, and who held those shares until at least March 12, 2014. This altered class period would completely exclude Lead Plaintiff Westway, who purchased all of its shares before June 30, 2011. Consequently, on May 21, 2019, Lvov sought permission to file a motion to intervene and substitute himself as Lead Plaintiff, arguing that Westway was no longer a class member and therefore lacked standing to serve as Lead Plaintiff. Before Judge Carter could rule on Lvov's request to intervene, Westway and VEON finished briefing on the Motion for Judgment on the Pleadings, and they informed the Court that "the parties [VEON and Westway] are engaging in mediation on Nov. 18, 2019 with Robert Meyer at JAMS." In response, Lvov asked the Court stay any mediation until the Defendant's Motion for Judgment on the Pleadings or Lvov's Motion to Intervene had been decided. On Nov. 14, 2019, Westway revealed their efforts to moot Lvov's standing concern by bringing two shareholders who purchased their shares after the June 2011 statement into the litigation. Lvov argued that Westway should not be able to cure their complete lack of standing by adding additional Named Plaintiffs who did have standing. Lvov proposed acting as co-lead Plaintiff as part of the upcoming mediation, a suggestion that Judge Carter denied. Judge Carter allowed Westway's two new shareholders to participate in the mediation, which failed to result in a settlement. By written Order on March 31, 2020, Judge Carter denied without prejudice VEON's Motion for Judgment on the Pleadings and allowed Westway to amend its complaint. Westway then filed the Second Amended Complaint ("SAC") on April 14, 2020, naming Sherman Steele, Leonard Karpwich, and Stan Sinitsa as additional plaintiffs. VEON then moved to dismiss the Second Amended Complaint. On March 11, 2021 the Court dismissed Westway, reasoning that there was no live controversy between Westway and VEON. In light of Westway's dismissal, the Court also re-opened the Lead Plaintiff appointment process, and explicitly allowed SKS to move for appointment as Lead Plaintiffs, which the group did on April 8, 2021. In response, Lvov again filed a motion to be appointed Lead Plaintiff. Defendant VEON weighed in on these competing motions by alerting the Court that it believes SKS would be subject to unique statute of limitations and statute of repose defenses. III. Analysis A. The Presumption in Favor of SKS's Appointment as Lead Plaintiff Has Been Successfully Rebutted by Lvov SKS and Lvov have both filed timely motions. Judge Wang opines that while SKS has the largest financial interest in the relief sought by the class, SKS (unlike Lvov) does not satisfy the requirements of FRCP Rule 23. Specifically, SKS will be unable to adequately represent the class because SKS's class claims are barred by the statute of limitations. Therefore, while Lvov's financial interest is smaller than SKS', he is the moving plaintiff who can most fairly and adequately protect the interests of the class. Judge Wang finds that SKS' class capacity claims have not been tolled, and that they would be subject to the unique defense that their claims are barred by the PSLRA's two-year statute of limitations. She says, while equitable tolling in the class action context allows for the filing of individual claims after the expiration of the statute of limitations, it does not toll class claims, regardless of whether those class claims are brought in subsequent class actions or when a new plaintiff attempts to join an existing class action. Given the successful rebuttal of the presumption in favor of SKS, and Judge Wang concludes that Lvov is the most adequate lead plaintiff. B. Lvov satisfies the requirements of the PSLRA. As Judge Wang discussed, Lvov has the second largest financial interest in the relief sought by the class, and his Motion for Appointment as Lead Plaintiff is timely. To fulfill the final requirement for appointment as lead plaintiff under the PSLRA, he must show that he "satisfies the requirements of Federal Rules of Civil Procedure Rule 23." "At the lead plaintiff stage of litigation, the party moving for lead plaintiff of the consolidated action need only make a preliminary showing that it satisfies the typicality and adequacy requirements of Rule 23." Judge Wang concludes that Lvov has made a sufficient preliminary showing of these requirements. First, Lvov satisfies the typicality requirement because his claims "arise from the same course of events" and make "similar legal arguments to prove the defendant's liability" as other putative class members. Second, Lvov satisfies the adequacy requirement because "his interests are aligned with that of the putative class, and he has retained competent and experienced counsel." Third, he has selected Rosen Law as Lead Counsel. As ascertained by Rosen Law's resume and their representation of Mr. Lvov to date, Lvov's chosen counsel is qualified to litigate the action. Accordingly, Judge Wang approves the selection of Rosen Law as Lead Counsel. IV. Conclusion For the foregoing reasons, Judge Wang denied SKS' motions for appointment as Lead Plaintiff and motion for appointment of Lead Counsel, and granted Lvov's motion for appointment as Lead Plaintiff and for appointment of Lead Counsel. The Clerk of the Court is respectfully directed to close ECF 173 and ECF 176. A full-text copy of the Court's April 29, 2022 Opinion & Order is available at https://tinyurl.com/fwn8dzyc from Leagle.com. VES GROUP: Underpays Quality Analysts, Grant Class Action Alleges ----------------------------------------------------------------- MICHAEL GRANT on Behalf of Himself and on Behalf of All Others Similarly Situated v. VES GROUP, INC. and MAXIMUS, INC., Case No. 4:22-cv-01465 (S.D. Tex. May 6, 2022) alleges that Defendants required the Plaintiff Grant to work more than 40 hours a week as a quality analyst but did not pay him the proper amount of overtime. The Defendants accomplished this underpayment by failing to include a series of non-discretionary bonus payments in Plaintiff's regular rate when they calculated the amount overtime he was due. The Defendants' conduct allegedly violates the Fair Labor Standards Act (FLSA), 29 U.S.C. section 201, et seq., which mandates that non-exempt employees, such as the Plaintiff and other hourly workers, be compensated at one and one-half times their actual regular rate for each hour worked over 40 hours per week. The Plaintiff brings a collective action to recover unpaid overtime compensation owed to him individually and on behalf of all current and former quality analysts who performed work for the Defendants during the three-year period before the filing of this Complaint up to the date the Court authorizes notice. VES Group is a wholly owned subsidiary of Maximus, Inc. Maximus acquired Defendant VES Group, Inc. in approximately May of 2021. VES Group. is a contractor for the Veterans Administration. One of Defendants' principal lines of business is the review of benefit claims veterans file with the VA. To perform this work, the Defendants hire quality analysts, such as Plaintiff Grant.[BN] The Plaintiff is represented by: John Neuman, Esq. Beatriz-Sosa Morris, Esq. SOSA-MORRIS NEUMAN, PLLC 5612 Chaucer Drive Houston, TX 77005 Telephone: (281) 885-8630 Facsimile: (281) 885-8813 E-mail: JNeuman@smnlawfirm.com BSosaMorris@smnlawfirm.com VICTORY PROFESSIONAL: Mejia Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Victory Professional Products, Inc. The case is styled as Richard Mejia, individually, and on behalf of all others similarly situated v. Victory Professional Products, Inc., Case No. 1:22-cv-03681 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Victory Professional Products, Inc. -- http://www.victorykoredry.com/-- is located in Huntington Beach, California and is part of the Cut and Sew Apparel Manufacturing Industry.[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 VOLVIK USA: Abreu Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Volvik USA Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Volvik USA Inc., Case No. 1:22-cv-03683 (S.D.N.Y., May 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Volvik -- https://volvik.com/ -- has risen to be one of the most innovative and trusted golf ball manufacturers in the world.[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 WASHINGTON: Judge Dismisses Long-Term Cares Act Class Action ------------------------------------------------------------ Liz J. Deckman, Esq., and Kira J. Johal, Esq., of Seyfarth Shaw LLP, in an article for Mondaq, report that Seyfarth Synopsis: A federal judge has dismissed a class action lawsuit that challenged the Washington Long-Term Cares Act ("Cares Act"), ruling that because the Cares Act is not established or maintained by an employer and/or employee organization, it is not an employee benefit plan and therefore not governed or preempted by ERISA. The Court also held that the premiums assessed by the Cares Act constitute a state tax. As such, only state courts, not U.S. federal courts, have jurisdiction to rule on the Cares Act. Background As we discussed in our prior blog post and legal update, the Washington Cares Act passed in 2019 and was set to begin collecting payroll taxes from Washington employees in January 2022 to help pay for the long-term care ("LTC") expenses of the State's residents. However, Governor Inslee announced in December 2021 that the State would pause collection of the tax from employers until lawmakers reassessed revisions to the program. Latest Developments On April 25, 2022, Judge Zilly of the U.S. District Court for the Western District of Washington dismissed a class action lawsuit that challenged the Cares Act, holding that the Court does not have jurisdiction for two reasons: (1) the Cares Act is not governed or preempted by the federal Employee Retirement Income Security Act of 1974, as amended ("ERISA") and thus ERISA does not confer jurisdiction on the federal courts; and (2) the Cares Act's premium constitutes a tax, and the Tax Injunction Act drastically limits federal district court jurisdiction to interfere with local concerns as to the collection of taxes. As a result, the Court dismissed the action as any legal challenges to the Cares Act must be brought in state court. Not Pre-Empted by ERISA In its opinion, the Court noted that ERISA applies to employee benefit plans that are established or maintained by an employer and/or employee organization. The Court determined that the Cares Act was a creation of the Washington legislature, which is neither an employer or an employee organization as defined by ERISA; therefore, the Cares Act is not an ERISA-covered employee benefit plan. In so doing, the Court rejected plaintiffs' assertion that the State acted as an employer when it passed the Cares Act. This was because the Cares Act assesses a premium on all covered employees in the State, not just those employed by the State. Consequently, the Court determined that the State acted as a sovereign when it adopted the Cares Act, unlike when it adopts employee health or pension benefit plans that extend or accrue benefits only to individuals while they are employed by the State. Cares Act's Premiums Constitute a Tax The State's motion to dismiss the lawsuit argued that the Cares Act's premiums were a tax imposed on employees' wages and thus, the federal court lacks jurisdiction as state tax challenges must be brought in state courts. To determine whether the Cares Act's premiums are a tax or insurance premium, the court reviewed three factors set forth in prior case law: 1. The entity imposing the premium assessment was the State legislature (not an administrative agency), making it more likely to be a tax; 2. The parties required to pay the premium assessment include a large group of people, and the broader the group affected, the more likely it is to be a tax; and 3. The ultimate use of the premium assessment is to directly benefit all members of the public who paid premiums for the requisite period and meet the criteria for receiving LTC services. Therefore, the Cares Act provides a general benefit to the public, making it more likely to be a tax, even if the amounts collected under it are segregated in special funds. The Court agreed with the defendants that the Cares Act is analogous to the unemployment insurance scheme, payments which are undisputedly taxes. Therefore, the federal Court lacked jurisdiction pursuant to the Tax Injunction Act, under which state courts have exclusive jurisdiction over challenges to state taxes. Takeaways for Employers The ruling in Pacific Bells LLC et al. v. Inslee et al. demonstrates that despite the challenges to the Cares Act in federal court, further challenges may very well be made in state court. During oral arguments, plaintiffs sought a ruling from the Court that the Cares Act premiums constitute an income tax that is barred by the Washington State Constitution. The Court noted that such arguments should be litigated within the State's administrative and/or judicial system. Seyfarth will continue to monitor and report on developments with respect to the Cares Act. For additional guidance, please contact the authors of this legal update or your attorney for more information. [GN] WATA INC: Knight Suit Alleges Video Game Market Manipulation ------------------------------------------------------------ JACOB KNIGHT, JACK CRIBBS, and JASON DOHSE, individually and on behalf of all others similarly situated, Plaintiffs v. WATA, INC. and COLLECTORS UNIVERSE, INC., Defendants, Case No. 8:22-cv-00967 (C.D. Cal., May 10, 2022) is a class action against the Defendants for false advertising, intentional misrepresentation, nondisclosure, and violations of the RICO, Unfair Competition Law, and Consumers Legal Remedies Act. According to the complaint, the Defendants have allegedly engaged in a pattern of racketeering activity in order to manipulate the retro video game market. The Defendants have also committed or aided and abetted in the commission of thousands of acts of racketeering activity by accepting payment for video game grading services which were based on false representations of turnaround times, nondisclosure of material facts, and charging consumers for grading services based on artificially inflated valuation of video games. As a result of the Defendants' misconduct, the Plaintiffs and Class members have suffered damages as they paid money for services they did not timely receive. Wata, Inc. is a video game grading company, headquartered in Denver, Colorado. Collectors Universe, Inc. is the parent company of Wata, Inc., with its principal place of business in Santa Ana, California. [BN] The Plaintiffs are represented by: Janeen Carlberg, Esq. Lizeth Perales, Esq. LAW OFFICES OF JANEEN CARLBERG 1912 N. Broadway, Suite 106 Santa Ana, CA 92706 Telephone: (714) 665-1900 E-mail: jcarlberg@lawfirmoc.com info@oceralaw.com WEC ENERGY: Munt et al. File Suit Over Insurance Plan Losses ------------------------------------------------------------ JONATHAN MUNT, GLORIA J. HARMON, and SANDRA M. WINGERS, individually and as Representatives of a Class of Participants and Beneficiaries of the WEC Energy Group Employee Retirement Savings Plan, Plaintiffs v. WEC ENERGY GROUP, INC., BOARD OF DIRECTORS OF WEC ENERGY GROUP, INC., CURT S. CULVER, DANNY L. CUNNINGHAM, WILLIAM M. FARROW III, CRISTY GARCIA-THOMAS, MARIA C. GREEN, GALE E. KLAPPA, THOMAS K. LANE, SCOTT J. LAUBER, ULICE PAYNE JR., MARY ELLEN STANEK, and GLEN E. TELLOCK, Defendants, Case No. 2:22-cv-00555-NJ (E.D. Wis., May 10, 2022) is a class action complaint brought against the Defendants for their alleged violations of the Employee Retirement Income Security Act. The Plaintiffs assert that the Defendants have breached their fiduciary duty of prudence with respect to the Plan Participants, -- by failing to ensure that the Plan's recordkeeping fees were objectively reasonable, defray reasonable expenses of administering the Plan, and act with the care, skill, diligence, and prudence required by ERISA; -- by failing to engage in a prudent process for monitoring the Plan's investments and removing imprudent ones within a reasonable period; -- by failing to employ a prudent process by failing to evaluate the cost of the Plan’s managed account provider critically or objectively in comparison to other managed account options, or in comparison to less costly target-date funds; and -- by failing to monitor those individuals responsible for Plan recordkeeping fees to ensure that they were adequately performing their fiduciary obligations. As a result of the Defendants' alleged breach of fiduciary duties of prudence, the Plaintiffs and Plan participants suffered millions of dollars in objectively unreasonable and unnecessary monetary losses. WEC Energy Group, Inc. provides energy services to more than 4.6 million customers in Wisconsin, Illinois, Michigan, and Minnesota. The Individual Defendants are board of directors of the Corporate Defendant. [BN] The Plaintiffs are represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. Paul M. Secunda, Esq. WALCHESKE & LUZI, LLC 235 Executive Dr., Suite 240 Brookfield, WI 53005 Tel: (262) 780-1953 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com psecunda@walcheskeluzi.com WELLS FARGO: Wins Dismissal of Shareholder Class Action Lawsuit --------------------------------------------------------------- Jonathan Stempel at Reuters reports that a federal judge dismissed class-action claims that Wells Fargo & Co, the fourth-largest U.S. bank, misled or defrauded shareholders about its commercial loans. U.S. District Judge William Alsup in San Francisco said shareholders failed to adequately allege that Wells Fargo unjustifiably inflated the quality of its loans, understated loss reserves or misstated its lending practices. Shareholders claimed to have lost billions of dollars in Wells Fargo stock as the San Francisco-based bank in 2020 gradually revealed the "previously unknown level of risk" in its commercial loans. The proposed class covers shareholders in the three years ending Oct. 13, 2020, a period when Wells Fargo's share price fell 54%. But the judge concluded that Wells Fargo had underwriting standards that "proved largely accurate or conservative, not inflationary," and did not mislead shareholders about the size of loans relative to the value of borrowers' businesses. Because he found no false or misleading statements, Alsup did not address whether Wells Fargo intended to defraud anyone. He said the shareholders, led by the Employees' Retirement System of the State of Hawaii, could file an amended complaint to address deficiencies in their case. Lawyers for the shareholders did not immediately respond to requests for comment. Wells Fargo and its lawyers did not immediately respond to similar requests. Since 2018, Wells Fargo has operated under consent orders from the Federal Reserve and two other U.S. financial regulators to improve governance and oversight. The Fed also capped the bank's assets at $1.95 trillion. The bank has faced much criticism over its practices since 2016, including for opening accounts without customer permission and charging borrowers for auto insurance they did not need. The case is Employees' Retirement System of the State of Hawaii v. Wells Fargo & Co, U.S. District Court, Northern District of California, No. 20-07674. [GN] WHITE WATER GEAR: Abreu Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against White Water Gear Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. White Water Gear Inc., Case No. 1:22-cv-03604 (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. White Water Gear Inc. -- https://www.utahwhitewatergear.com/ -- is Salt Lake City's raft shop of choice for whitewater gear.[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 WONOLO INC: Turner Challenges Criminal History Screening Policies ----------------------------------------------------------------- KEIANDRE TURNER and JACQUELINE RAMOS, on behalf of themselves and all others similarly situated v. WONOLO, INC., Case No. 513282/2022 (N.Y. Sup., Kings Cty., May 6, 2022) challenges the criminal history screening policies and practices used by Wonolo when denying employment to otherwise qualified applicants, like the Plaintiffs, throughout New York City and State. Under the New York City Human Rights Law and the New York State Human Rights Law, an employer cannot deny employment to individuals with criminal convictions unless it performs a thorough and individualized analysis of specific "Article 23-A" factors. These factors, derived from Article 23-A of the New York State Correction Law ("Correction Law"), include the following: the specific duties and responsibilities necessarily related to the employment sought; the bearing, if any, the criminal offense for which the applicant was previously convicted will have on the applicant's fitness or ability to perform one or more such duties or responsibilities; the time which has elapsed since the occurrence of the criminal offense; the age of the applicant at the time of occurrence of the criminal offense; the seriousness of the offense; and any information produced by the applicant, or produced on his or her behalf, in regard to rehabilitation and good conduct. After carefully considering these and other factors, an employer may only deny employment on the basis of criminal convictions where it determines that the applicant: (a) poses an unreasonable risk to the safety or welfare of specific individuals or the public; or (b) possesses convictions that are directly related to the applicant's ability to perform the job. As alleged, the Defendant's criminal history screen fails to sufficiently consider the Article 23-A factors, says the suit. The Plaintiffs have criminal convictions. The Plaintiffs each sought work with Defendant and were denied jobs by Defendant because of their criminal histories. Wonolo is a staffing company that connects workers to jobs primarily in warehouses, food services, and manufacturing through a mobile application.[BN] The Plaintiffs are represented by: Christopher M. McNerney, Esq. Ossai Miazad, Esq. Jennifer Davidson, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2060 E-mail: om@outtengolden. com cmcnernev@outtengolden. com jdavidson@outtengolden. com - and - Michael C. Pope, Esq. Shomari Ward, Esq. YOUTH REPRESENT 11 Park Place, Suite 1512 New York, NY 10007 Telephone: (646) 759-8080 Facsimile: (646) 759-8082 E-mail: mpope@vouthrepresent.org sward@vouthrepresent.org WOOJER USA: Abreu Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Woojer USA, Inc. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Woojer USA, Inc., Case No. 1:22-cv-03614-CM (S.D.N.Y., May 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Woojer -- https://www.woojer.com/ -- is an evolutionary experience that catapults music, gaming, VR and films to another dimension Forget about just hearing sound.[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 ZERO FRICTION: Abreu Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Zero Friction LLC. The case is styled as Luigi Abreu, individually, and on behalf of all others similarly situated v. Zero Friction LLC, Case No. 1:22-cv-03658 (S.D.N.Y., May 5, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Zero Friction -- https://zerofriction.com/ -- offers high quality, performance golf products with innovative technological advancements.[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 [*] Wilson Elser Attorneys Discuss Rulings in BIPA Class Lawsuits ----------------------------------------------------------------- Michael J. Duffy, Esq., and Michael J. O'Malley, Esq., of Wilson Elser Moskowitz Edelman & Dicker LLP, in an article for The National Law Review, report that two recent rulings in the Northern District of Illinois have provided insurers a new, viable path to avoid defense obligations for the explosion of lawsuits brought by insureds' employees under the Illinois Biometric Information Privacy Act (BIPA). The decisions held the Access or Disclosure Exclusion, which is commonly found in general liability policies, unambiguously barred coverage for BIPA claims. See American Family Mut. Ins. Co., S.I. v. Carnagio Enters., Case No 20-c-3665 (N.D. Ill. Mar. 30, 2022); Thermoflex Waukegan, LLC v. Mitsui Sumitomo Ins. USA, Inc., Case No. 21-c-788 (N.D. Ill. Mar. 30, 2022). The rulings by the Hon. John Z. Lee, U.S.D.J. (N.D. Ill.) departed from recent decisions within the District that held the exclusion did not unambiguously exclude coverage. See Am. Fam. Mut. Ins. Co. v. Caremel, Inc., Case No. 20-c-637, 2022 WL 79868 at 3 (N.D. Ill. Jan. 7, 2022); Citizens Ins. Co. of Am. v. Thermoflex Waukegan, LLC, Case No. 20-cv-05980, 2022 WL 602537 at 6-7 (N.D. Ill. Mar. 1, 2022); Citizens Insurance Company of America v. Highland Baking Company, Inc., Case No. 20-cv-04997 (N.D. Ill. March 29, 2022). Background Enacted in 2008, BIPA regulates the collection, use and storage of biometric data such as fingerprints. In sum, BIPA requires private entities to (1) obtain informed, written consent from individuals prior to collecting their biometric information and (2) develop a written, publicly available policy on retention and destruction of such information. BIPA creates a private right of action and provides potential recovery for actual damages or statutory liquidated damages of $1,000 for each negligent violation and $5,000 for each reckless or intentional violation, plus attorneys' fees and costs and injunctive relief. BIPA-related litigation has grown exponentially since 2015, with the majority of cases being putative class action lawsuits based on employers requiring employees to scan their fingerprints to clock in and out of work. This increased litigation has, in turn, spurred insurance coverage litigation for such claims. The published decisions concerning coverage for BIPA claims have focused on whether any exclusions bar coverage, with most of the decisions finding various exclusions do not unambiguously exclude coverage. Access or Disclosure Exclusion Opinions Judge Lee's opinions with respect to the Access or Disclosure Exclusion may provide the best opportunity for insurers to avoid defense obligations for BIPA claims because he found the exclusion to be clear and unambiguous and he highlighted the faulty reasoning in prior decisions that found the exclusion did not unambiguously exclude coverage. The Access or Disclosure Exclusion at issue in Carnagio and Mitsui Sumitomo states: This insurance does not apply to … "personal and advertising injury" arising out of … any access to or disclosure of any person's or organization's confidential or personal information, including patents, trade secrets, processing methods, customer lists, financial information, credit card information, health information or any other type of nonpublic information. Addressing the Caremel and Thermoflex Waukegan opinions head on, Judge Lee found the prior decisions in the Northern District of Illinois were wrong to limit the scope of the exclusion by using the interpretative canons ejusdem generis (of the same kind) and noscitur a sociis, a broader variation of ejusdem generis, for three reasons: -- First, ejusdem generis does not apply when the language is unambiguous. Here, Judge Lee found the exclusion to be unequivocal, clear and unambiguous. -- Second, when examples are introduced by the word "including," the list that follows is not exhaustive. As such, Judge Lee found the examples of the types of information covered by the exclusion do not limit the scope of the preceding clause, which states coverage is not afforded for "'personal and advertising injury' arising out of … any access to or disclosure of any person's or organization's confidential or personal information." -- Third, ejusdem generis does not apply when the listed items are not sufficiently similar to belong to one identifiable class. The examples in the Access or Disclosure Exclusion, which include everything from publicly available patent information to private credit card information, have no readily identifiable common thread. As a result, ejusdem generis is inapplicable. Judge Lee also held that even if he were to use the broader interpretive canon of noscitur a sociis, the only resemblance among the listed examples is that they are categories of information individuals and companies have a heightened interest in keeping from third parties or the public. Biometric data, Judge Lee held, certainly falls within that category. Summary Judge Lee's decisions are significant because they represent the most extensive analysis of the Access or Disclosure Exclusion within the BIPA context to date. Judge Lee's opinions also explain why prior decisions within the District provide an incomplete analysis and how the reasoning in those opinions was faulty. Although, technically, three out of the five published decisions addressing the Access or Disclosure Exclusion found the exclusion does not unambiguously exclude coverage for BIPA claims, the Highland Baking case merely adopted the Thermoflex Waukegan decision and did not provide an independent analysis. Moreover, the Caremel court's discussion of the Access or Disclosure Exclusion was brief, focused more specifically on the exclusion's "health information" language, and is judicial dicta. Judge Lee's decisions are more reasoned and undoubtedly will establish a road map for insurers when this issue reaches the Seventh Circuit Court of Appeals. Until then, the new split within the Northern District of Illinois clearly demonstrates there is a bona fide coverage dispute concerning coverage for BIPA claims that likely will protect insurers from bad faith claims under 215 ILCS 5/155. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. 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. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***