/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220726.mbx C L A S S A C T I O N R E P O R T E R Tuesday, July 26, 2022, Vol. 24, No. 142 Headlines 24 CAPITAL: 6th Cir. Affirms Dismissal of Peters Broadcast Suit ADKIN'S BLUE: Parties File Joint Bid for Conditional Class Cert. ALANI NUTRITION: Bid to Strike Class Allegations Partly Granted ALBERTSONS LLC: Case Management Order Entered in Giulivo Suit ALLEN COUNTY, IN: Bid for Summary Judgment in Eguia v. Jail Denied ALLIANCE COAL: Bids for Discovery in Branson Suit Granted in Part AMAZON.COM INC: Rittmann Class Status Bid Denied w/o Prejudice AMAZON.COM: Seeks Relief from Deadline to Reply on Class Cert Bid AMERICAN LANDMARK: Diez Seeks Extension of Class Cert Deadline APP OF NEW MEXICO: Remand of Lax Class Suit to State Court Affirmed APPLE INC: Extension of Deadline to File Class Cert. Sought AUTO-OWNERS INSURANCE: Bid to Certify Class in Mason's Suit Granted BEACH BOYS: Conditional Cert. of FLSA Collective Action OK'd BELFOR USA: Case Management Order Entered in Rodriguez Suit BELLEVILLE, IL: Denial of Bid to Certify Dewalt's Class Reversed BIG EASY: Asks More Time to Respond to Rule 23 Class Cert. Bid BIG EASY: Opposition to Class Cert Bid Extended to August 8 BOSWORTH COMPANY: Dickson Files 3rd Supplement to Class Cert Bid BP EXPLORATION: Cook's Expert Testimony Excluded From Favorite Suit BP EXPLORATION: Cook's Expert Testimony Excluded From Ward Suit BP EXPLORATION: Court Excludes Cook's Testimony From Harris Suit BP EXPLORATION: In Barksdale Suit, Court Excludes Cook Testimony BP EXPLORATION: In Catchings Suit, Court Excludes Cook Testimony BP EXPLORATION: In Fountain Suit, Court Excludes Cook's Testimony CALIFORNIA TRANSIT: Denial of Arbitration in Evenskaas Suit Flipped CASELLA WASTE: Bid to Dismiss Rodney's First Amended Suit Granted CASINO QUEEN: Bids to Amend Scheduling Order in Hensiek Suit Denied COLORADO: Seeks Extension of Time to Respond to Class Cert Bid CREDIT SUISSE: Scheduling Order Entered in Antitrust Litigation DAYBREAK SOLAR: Cunningham Suit Moved to Northern District of Texas DETROIT EDISON: Settlement Deal OK'd in Nolan Suit DGS CONSTRUCTION: Md. App. Flips Judgments in Amaya & Rojas Suits ESTENSON LOGISTICS: Class Cert. Deadline Continued to Dec. 13 FIRST ORDER: Seeks to Stay Peacock Bid for Conditional Cert FIRST ORDER: Suit Seeks Conditional Cert. of FLSA Collective FORLINI'S RESTAURANT: Barrera Seeks Conditional Cert of Collective GBM GLOBAL: Court Confirms Arbitration Award in 91 Individuals Suit GEORGIA: Summary Judgment in Fincher v. Corrections Dep't. Affirmed GERBER PRODUCTS: Scheduling Order Entered in Keeter Class Suit GROUP HEALTH: Order Modifying Class Cert. Schedule Entered HARBOURSIDE FUNDING: Seeks to Decertify Class in Peng Suit HELLO PRODUCTS: Offers $1.4M to Fix False Advertising Suit HOME DEPOT: Court Modifies Scheduling Order Entered in Patton HYATT CORP: Discovery in Insixiengmay Suit to Continue on Oct. 3 HYUNDAI MOTOR: Filing for Prelim OK of Settlement Extended IRONNET INC: Lead Plaintiff & Lead Counsel Named in Securities Suit JOHN HEATH: Seeks Leave to File Certain Exhibits Under Seal KELLOGG SALES: S.D. New York Grants Bid to Dismiss Russett Suit KEURIG GREEN: Class Action Settlement in Smith Gets Initial Nod KNIGHTSBRIDGE MANAGEMENT: Conditional Certification Bid Filed KOCH FOODS: To Settle Broiler Chickens Antitrust Action for $15.5M LANDMARK REALTY: Court Tosses Cheatem Bid for Class Certification LEE HECHT: Final Approval of Class Action Settlement Sought MADISON AVENUE: Conditional Class Certification Granted in Part MATRIX ABSENCE: Weeks, et al., Seek to Certify Class of Examiners MHC HERITAGE: Denial of Evidence Preclusion in Noel Suit Endorsed MIKE PIMPINELLI: Wilcox Class Cert. Bids Denied w/o Prejudice MINNEAPOLIS, MN: Lowry Suit Remanded to Hennepin County State Court NATIONAL PACKAGING: Settlement Gets Final Approval in Guzman NATIONSTAR MORTGAGE: Appeals Remand Ruling in Kushner Suit NEW YORK UNIVERSITY: De Leon Seeks Reconsideration of June 22 Order NEW YORK, NY: $2.6-Mil. in Attorneys' Fees Awarded in Grottano Suit NEXTEP INC: Loomis, et al., Seek Initial OK of Settlement Deal NORTHWEST MOTORSPORT: Class Cert. Schedule Amended in Villafan PARAMOUNT RESIDENTIAL: Discovery on Class Cert Issues Due August 19 PAYPAL INC: Bids to File Friends' Second Amended Complaint Denied PHILADELPHIA INDEMNITY: Wins Judgment on Pleadings Bid in Kenney PHILLIPS & COHEN: Scheduling Order Entered in Floyd Walker Suit PPG EMPLOYEE: 4th Cir. Vacates Vesting Claim Award in Bellon Suit PROGRESSIVE UNIVERSAL: Scheduling Order Entered in Kroeger Suit REBELZ CLUB: Court Conditionally Certifies Class in Harris Suit REBELZ CLUB: Pennsylvania Court Denies Bid to Dismiss Harris Suit RED WING: Fla. Dist. App. Affirms Dismissal of Southam FACTA Suit REHAB SYNERGIES: Appeals Final Judgment in Loy Labor Class Action SAFELITE FULFILLMENT: Order on Class Cert-Related Dates Entered SAN FRANCISCO HEALTH: Court Narrows Labor Claims in Johnson Suit SCRANTON SCHOOL DISTRICT: O'Donnell May Amend Complaint in 30 Days SCRANTON SCHOOL DISTRICT: O'Donnell Suit Dismissed W/o Prejudice SEALED AIR: Court Amends Scheduling Order in UA Local Class Suit SEGA OF AMERICA: Muto Appeals Rigged Arcade Machine Case Dismissal SHARED IMAGING: Class Cert Hearing Bid Set for August 19 SONAM'S STONEWALLS: First Cir. Affirms Verdict Finding for Gonpo SONY INTERACTIVE: Court Dismisses Caccuri Suit With Leave to Amend SPRINGFIELD, MA: Class Status Bid in Firefighters' Bias Suit Nixed SUFFOLK UNIVERSITY: Rest of Judgment Bid in Refund Suit Denied SUTTER VALLEY: Ward's Bids to Certify Class Denied W/o Prejudice TD BANK: Amended Scheduling Order Entered in Jimenez Class Suit TJ INSPECTION: Bid for Collective Action Notice Filed TOMTOM NORTH: Court Dismisses Amended McVetty Suit With Prejudice UNIVERSITY OF MARYLAND: Bid to Dismiss Moler ERISA Suit Denied UNIVERSITY OF MARYLAND: Court Strikes Exhibits in Moler Suit VERIZON WIRELESS: Corsi et al. Sue Over Undisclosed Charges WALMART STORES: Lisowski Suit Dismissal With Prejudice Affirmed WELLS FARGO: District Court Grants Bid to Dismiss Hudson Class Suit WEXFORD HEALTH: Parties Seek to Defer Ruling on Time Extension Bid ********* 24 CAPITAL: 6th Cir. Affirms Dismissal of Peters Broadcast Suit --------------------------------------------------------------- In the case, PETERS BROADCAST ENGINEERING, INC., Plaintiff-Appellant v. 24 CAPITAL, LLC; JASON SANKOV; JOHN DOES, Defendants-Appellees, Case No. 21-3849 (6th Cir.), the U.S. Court of Appeals for the Sixth Circuit affirms the district court's order granting the Defendants' motion to dismiss for lack of personal jurisdiction. I. Introduction A federal court is empowered to adjudicate the rights of the parties before it -- with the salient constraint that it must have personal jurisdiction over each party. After forming a contract, 24 Capital believed Peters Broadcast breached their agreement. 24 Capital received a judgment by confession in New York state court. Then Peters Broadcast brought the suit in the Southern District of Ohio, alleging that 24 Capital and its Operations Manager, Jason Sankov, engaged in a scheme in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Section 1962. The district court granted the Defendants' motion to dismiss for lack of personal jurisdiction. Peters Broadcast appeals, arguing the district court erred in interpreting the RICO provision authorizing nationwide exercise of personal jurisdiction in certain circumstances. II. Background Peters Broadcast sued 24 Capital and Jason Sankov, alleging RICO violations and Ohio state law claims. Peters Broadcast is an Indiana corporation with its principal place of business is in Indiana. 24 Capital is a New York limited liability company with its principal place of business in New York. Sankov resides in Florida. On Feb. 21, 2019, Peters Broadcast and 24 Capital entered a contract titled "Merchant Agreement," in which 24 Capital agreed to provide an advance to Peters Broadcast in exchange for assuming interest in Peters Broadcast's future receivables. However, the relationship between the parties devolved in the next three months. Believing Peters Broadcast breached their agreement, 24 Capital moved for judgment by confession in the Supreme Court of New York for Putnam County, which was granted on May 21, 2019. Peters Broadcast moved to vacate this judgment, but the motion was denied. Thereafter, Peters Broadcast initiated the instant action, filing its first complaint on June 19, 2020, and a second amended complaint on April 7, 2021. In its second amended complaint, Peters Broadcast alleged that 24 Capital, Jason Sankov, and other unnamed coconspirators engaged in a "conspiracy to steal, thieve and purloin from unsuspecting merchants" by targeting small merchants and inducing them to borrow funds against receivables. Peters Broadcast alleged that 24 Capital misrepresented the terms of the Merchant Agreement by promising to recover payment only in proportion to incoming receivables, while actually extracting daily payments without regard to receivables; that 24 Capital promised additional funding to borrowers, only to renege on the promised funds and confess judgment against the borrowers; and that this was not an isolated event, but rather part of an ongoing scheme in which 24 Capital used "deceptive and misleading communications and contracts" to force merchants "into cycles of debt in which they were forced to incur new illegal loans in order to pay off their existing debt to 24 Capital." It initiated the lawsuit with both individual and class-wide claims against 24 Capital and Sankov. The complaint characterizes the alleged scheme as racketeering activity in violation of RICO, 18 U.S.C. Sections 1961-1968. For Peters Broadcast's state-law claims, the asserted basis for personal jurisdiction is pendent jurisdiction from the RICO claim. Peters Broadcast alleged that each of its claims is appropriately brought as a class action, with the class defined as "All borrowers who received merchant cash advances and were advised the repayment would be against receivables only." Peters Broadcast filed an amended motion to certify a class on May 3, 2021. 24 Capital and Sankov filed a motion to dismiss the second amended complaint on May 7, 2021, arguing the case should be dismissed under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. The Defendants also raised defenses under Federal Rules 12(b)(3) and 12(b)(6) of improper venue and failure to state a claim upon which relief may be granted. The magistrate judge1 granted 24 Capital and Sankov's motion to dismiss and denied Peters Broadcast's motion to certify class as moot. On appeal, Peters Broadcast argues the district court erred in granting the motion to dismiss, asserting that the court misconstrued 18 U.S.C. Section 1965 and incorrectly held it lacked personal jurisdiction over the Defendants. III. Discussion A. Peters Broadcast urges the court to adopt the minority approach, arguing that Section 1965(d) authorizes personal jurisdiction via nationwide service based on minimum contacts with the United States. The Sixth Circuit joins the Second, Third, Seventh, Ninth, Tenth, and D.C. Circuits and hold that subsection (b) of Section 1965, rather than subsection (d), gives RICO its nationwide jurisdictional reach. Reading Section 1965(d) to allow service upon anyone with "nationwide contacts" to sufficiently confer jurisdiction would render Section 1965(b) superfluous. The forum-state approach ensures that no subsection is redundant: It allows the exercise of jurisdiction over nonresident defendants to the extent due process and "the ends of justice" require only if there is another defendant with minimum contacts in the forum. Stating in conclusory terms that Section 1965(d) provides for national service of process, without analyzing or mentioning its relationship to Section 1965(b), is unconvincing. The Sixth Circuit finds the reasoning of the forum-state approach persuasive, with a few clarifications to ensure meaning is conferred upon each subsection of the statute. First, we make clear that Section 1965(a) provides for venue, not jurisdiction. Because subsection (a) is not jurisdictional, another rule -- such as Federal Rule of Civil Procedure 4(k)(1)(A) and the relevant state's long-arm statute -- is required to establish personal jurisdiction over an initial defendant. Then, Section 1965(b) extends personal jurisdiction through nationwide service of process over "other parties residing in any other district," as long as venue is proper through (a) with that initial defendant and the "ends of justice" require it.4 Section 1965(c) is not jurisdictional and simply describes subpoena procedure. Similarly, Section 1965(d) is not jurisdictional. Subsection (d) extends to "other process" that differs from a summons or subpoena, such as notifying a party of an injunction or an order committing a person for civil contempt of a decree. In urging the Sixth Circuit to adopt the minority approach, Peters Broadcast argues the forum-state approach is wrong because it fails to consider that "RICO must 'be liberally construed to effectuate its remedial purposes.'" Although the majority approach does not provide for absolute, nationwide personal jurisdiction over each defendant in every civil RICO case, it ensures that there will be at least one federal forum for all defendants in a single civil RICO trial. The Sixth Circuit joins the majority of its sister circuits in adopting the forum-state approach and holding that Section 1965(b) governs service over out-of-district defendants. B. Having adopted the forum-state approach, the Sixth Circuit's next relevant inquiry is whether Section 1965, as interpreted, conferred personal jurisdiction over 24 Capital and Sankov. This requires at least one defendant with traditional forum state contacts (the defendant described by Section 1965(a) and reached by Rule 4(k)(1)(A)) such that any number of defendants from other districts may be joined under Section 1965(b). Peters Broadcast bears the initial burden to make a prima facie case for personal jurisdiction by establishing that either 24 Capital or Sankov has minimum contacts with Ohio. Because Peters Broadcast did not specifically allege that 24 Capital or Jason Sankov has minimum contacts with Ohio, the forum state, the Sixth Circuit affirms the district court's decision to grant the motion to dismiss. Absent jurisdiction over one defendant pursuant to 18 U.S.C. Section 1965(a) and Rule 4(k)(1)(A), no jurisdiction exists under Section 1965(b). As the basis for Peters Broadcast's accompanying state law claims was pendent jurisdiction, the court necessarily lacks personal jurisdiction over 24 Capital and Sankov for those claims. C. Finally, Peters Broadcast argues for the first time in its reply brief that, in lieu of retaining jurisdiction, the district court should have transferred the case to its "home district, the Northern District of Indiana." Even if considered, Peters Broadcast's argument that the district court should have transferred the case to Indiana fails. Peters Broadcast did not provide any allegations that the Defendants, 24 Capital or Jason Sankov, have minimum contacts with Indiana. The Northern District of Indiana is in the Seventh Circuit, which follows the forum-state approach. Pursuant to the forum-state approach, Peters Broadcast may file its civil RICO action "in a district court where personal jurisdiction can be established over at least one defendant," and then "summonses can be served nationwide on other defendants if required by the ends of justice." IV. Conclusion The Sixth Circuit holds that 18 U.S.C. Section 1965(b) governs service over out-of-district defendants. Under this forum-state approach, Peters Broadcast did not establish personal jurisdiction for its RICO claims or pendent state law claims. The Sixth Circuit therefore affirms the district court's decision to grant 24 Capital and Sankov's motion to dismiss and to deny Peters Broadcast's motion to certify class as moot. A full-text copy of the Court's July 13, 2022 Opinion is available at https://tinyurl.com/nhjac9dn from Leagle.com. ARGUED: Percy Squire, PERCY SQUIRE COMPANY LLC, in Columbus, Ohio, for the Appellant. Jared J. Lefevre -- jjlefevre@eastmansmith.com -- EASTMAN & SMITH LTD., in Toledo, Ohio, for Appellees 24 Capital and Jason Sankov. ON BRIEF: Percy Squire, PERCY SQUIRE COMPANY LLC, in Columbus, Ohio, for the Appellant. Jared J. Lefevre, EASTMAN & SMITH LTD., in Toledo, Ohio, for Appellees 24 Capital and Jason Sankov. ADKIN'S BLUE: Parties File Joint Bid for Conditional Class Cert. ---------------------------------------------------------------- In the class action lawsuit captioned as Juan and Delphina Luna, on behalf of themselves and others similarly situated, v. Adkin's Blue Ribbon Packing Company, Inc., Case No. 1:21-cv-00545-HYJ-RSK (W.D. Mich.), the Parties file joint motion for conditional class certification, preliminary approval of class action settlement, approval of notice plan, and scheduling of final hearing. The proposed Settlement would bind and resolve the claims of a proposed class of: "All migrant and seasonal agricultural workers employed at Adkin Blue Ribbon Packing Company, Inc. to harvest blueberries in 2019." Adkin's Blue provides farm services. The Company specializes in packing the finest fresh and frozen blueberries. A copy of the Parties' motion dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3Oms0dn at no extra charge.[CC] The Plaintiff is represented by: Teresa Hendricks, Esq. Benjamin O'Hearn, Esq. Molly Spaak, Esq. Migrant Legal Aid 1104 Fuller Ave. NE Grand Rapids, MI 49503-1371 Telephone: (616) 454-5055 E-mail: thendricks@migrantlegalaid.com bohearn@migrantlegalaid.com mspaak@migrantlegalaid.com The Defendant is represented by: Brion B. Doyle, Esq. VARNUM LLP Bridgewater Place P.O. Box 352 Grand Rapids, MI 49501-0352 Telephone: (616) 336-6000 E-mail: bbdoyle@varnumlaw.com ALANI NUTRITION: Bid to Strike Class Allegations Partly Granted --------------------------------------------------------------- In the class action lawsuit captioned as ANDRES VITIOSUS, et al., individually and on behalf of all others similarly situated, v. ALANI NUTRITION, LLC, Case No. (), the Hon. Judge Michael M. Anello entered an order granting in part defendant's motion to dismiss and strike class allegations as follows: In particular, the Court dismisses the Plaintiffs' sixth and seventh causes of action with leave to amend. The Court dismisses the Plaintiffs' claims to the extent they are premised upon advertising they do not allege they saw with leave to amend. The Court further dismisses the following without leave to amend: Plaintiffs' request for injunctive relief; Plaintiffs' claims to the extent they are premised upon the implied nutrient content claim theory; Plaintiffs' claims to the extent they are based upon weight loss and protein benefits beliefs; and Plaintiffs' nationwide class allegations. The Court's ruling as to the nationwide class allegations is without prejudice to additional Plaintiff(s) bringing claims, and thus representing additional class(es), under the laws of their respective states. The Court DENIES the remainder of Defendant's motion. If Plaintiffs wish to file a First Amended Complaint curing the deficiencies noted herein, they must do so on or before July 25, 2022. Defendant must then respond within the time prescribed by Rule 15, the Court says. On December 8, 2021, Andres Vitiosus, Debra Foley, and Rachel Lumbra filed a putative class action complaint against Defendant Alani Nutrition, alleging violations of California and New York consumer protection laws as well as claims for breach of express warranty and unjust enrichment. The Defendant is the manufacturer of FIT SNACKS Protein Bars. Generally speaking, the Plaintiffs allege that Defendant misleads consumers by representing that FIT Bars are healthy through its labeling, packaging, and advertising. Specifically, the Plaintiffs maintain they were misled when they observed the term "FIT" on the wrapper of six FIT Bars flavors: (1) Munchies; (2) Peanut Butter Crisp; (3) Blueberry Muffin; (4) Chocolate 8 Cake; (5) Confetti Cake; and (6) Fruity Cereal. According to Plaintiffs, FIT Bars are not healthy but instead are high in fat and contain less than the daily value (DV) of Vitamin D and potassium. The Plaintiffs also assert that the labeling "FIT" violates the Food and Drug Administration's regulation and therefore is misleading. A copy of the Court's order dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3RIU3qo at no extra charge.[CC] ALBERTSONS LLC: Case Management Order Entered in Giulivo Suit ------------------------------------------------------------- In the class action lawsuit captioned as Michael Giulivo v. Albertsons LLC, et al., Case No. 2:22-cv-04163-SB-GJS (C.D. Cal.), the Hon. Judge Stanley Blumenfeld, Jr. entered a case management order as follows: -- Trial: July 10, 2023 -- Pretrial Conference: June 23, 2023 -- Motion to Amend Pleadings/Add September 16, 2022 Parties (Hearing Deadline): -- Motion for Class Certification: December 2, 2022 -- Opposition to Motion for December 16, 2022 Class Certification: -- Reply Brief in Support of December 23, 2022 Class Certification: -- Motion for Class Certification January 13, 2023 Hearing: -- Discovery Deadline -- Nonexpert: February 17, 2023 -- Discovery Deadline – Expert: March 17, 2023 -- Initial Expert Disclosure: February 3, 2023 -- Rebuttal Expert Disclosure: February 17, 2023 -- Discovery Motion Hearing March 17, 2023 Deadline: -- Non-Discovery Motion Hearing March 31, 2023 Deadline Albertsons is an American grocery company founded and headquartered in Boise, Idaho. A copy of the Court's order dated July 6, 2022 is available from PacerMonitor.com at https://bit.ly/3OnEq4x at no extra charge.[CC] ALLEN COUNTY, IN: Bid for Summary Judgment in Eguia v. Jail Denied ------------------------------------------------------------------ In the case, ADRIAN EGUIA, Plaintiff v. SHERIFF OF ALLEN COUNTY, IN, Defendant, Cause No. 1:22-CV-168-DRL-SLC (N.D. Ind.), Judge Damon R. Leichty of the U.S. District Court for the Northern District of Indiana, Fort Wayne Division, denies the Defendant's motion for summary judgment. Mr. Eguia, a prisoner without a lawyer, filed a complaint seeking damages for alleged unconstitutional conditions of confinement at the Allen County Jail. "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Under 28 U.S.C. Section 1915A, the Court must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against an immune defendant. The complaint stems from a class action lawsuit regarding the conditions of confinement at the Allen County Jail -- Morris v. Sheriff of Allen County, No. 1:20-CV-34-DRL, 2022 WL 971098 (N.D. Ind. Mar. 31, 2022). In that case, the Court certified a class of "all persons currently confined, or who would in the future be confined, in the Allen County Jail" under Federal Rule of Civil Procedure 23(b)(2) for injunctive and declaratory relief. It found at summary judgment that certain conditions of confinement at the jail violated the Eighth and Fourteenth Amendments to the Constitution: "The overcrowding problem at the jail has deprived this class of inmates 'the minimal civilized measure of life's necessities.'" It also entered a permanent injunction to address the overcrowding, lack of sufficient staffing and recreation, and inadequate supervision of prisoners and continues to monitor the remediation of the unconstitutional conditions. Although Mr. Eguia is a member of the class in Morris, that class action was for declaratory and injunctive relief only. This means that to obtain damages Mr. Eguia must allege how he personally was injured by any constitutional violation. Simply being in the presence of unconstitutional conditions at the jail is not enough to claim damages under 42 U.S.C. Section 1983, unless Mr. Eguia himself was injured by the conditions. A necessary element of a constitutional tort is "that the officer's act caused any injury." "There is no tort -- common law, statutory, or constitutional -- without an injury, actual or at least probabilistic." Turning to Mr. Eguia's complaint, Judge Leichty finds that it repeats many of the problems identified in the class action. Specifically, he complains that the jail is chronically overcrowded and staffing is insufficient. Among his allegations, he says that tension from overcrowding results in violence, inadequate staffing causes delays in responding to emergencies, and there are not enough beds so people are sleeping on the floor in almost every cell. However, none of these general allegations are specific to Mr. Eguia, so they cannot form the basis of a claim for damages. Mr. Eguia specifically alleges that he has had to sleep on the floor with his head near the toilet, even when it is in use. He says he has not been to recreation in the two years he has been detained or otherwise had the opportunity to exercise or work out. Further, he claims that has not been to one religious service. Id. Because Mr. Eguia was a pretrial detainee, his claims must be assessed under the Fourteenth Amendment. "The Fourteenth Amendment's Due Process Clause prohibits holding pretrial detainees in conditions that 'amount to punishment.'" Beyond this, Judge Leichty holds that a pretrial detainee must also plausibly allege a defendant's "response was objectively unreasonable under the circumstances" and that the defendant "acted purposely, knowingly, or recklessly with respect to the consequences of his actions." "A jail official's response to serious conditions of confinement is objectively unreasonable when it is `not rationally related to a legitimate nonpunitive governmental purpose' or is 'excessive in relation to that purpose.'" Mr. Eguia's allegations about how he was affected by the conditions at the jail are insufficient to state a claim without additional supporting details. Specifically, an allegation of sleeping on the floor alone does not state a claim. Sleeping on the floor can contribute to a denial of "the minimal civilized measure of life's necessities," but the complaint lacks details about how it affected Mr. Eguia personally. Similarly, Mr. Eguia does not explain how the lack of exercise or recreation has affected him. Lack of access to exercise may violate the constitution in "extreme and prolonged situations where movement is denied to the point that the inmate's health is threatened." However, restrictions on recreation must be analyzed in light of the other opportunities the inmates have for out-of-cell activities. The complaint is silent on the details surrounding Mr. Eguia's daily activities. Similarly, Mr. Eguia has a right under the First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Section 2000cc-1, to practice his religion. But, he does not say what his religion is or what steps he took in an attempt to practice his religion. Without more, this claim cannot proceed. The complaint does not state a claim for which relief can be granted. Nevertheless, Mr. Eguia may file an amended complaint if he believes he can state a claim based on (and consistent with) the events described in this complaint because "the usual standard in civil cases is to allow defective pleadings to be corrected, especially in early stages, at least where amendment would not be futile." To file an amended complaint, he needs to write this cause number on a Pro Se 14 (INND Rev. 2/20) Prisoner Complaint form which is available from his law library. After he properly completes that form addressing the issues raised in the Order, he needs to send it to the Court. Additionally, Mr. Eguia filed a motion for summary judgment, asking the Court to enter summary judgment in his favor on the basis of the findings in the Morris class action. Until there is a complaint that states a claim, Judge Leichty finds it too soon to determine what preclusive effect the class action might have on an individual suit for damages. The motion will be denied as premature. For these reasons, Judge Leichty denies the motion for summary judgment and grants Equia until Aug. 12, 2022, to file an amended complaint. He cautions Eguia if he does not respond by the deadline, the case will be dismissed under 28 U.S.C. Section 1915A without further notice because the current complaint does not state a claim for which relief can be granted. A full-text copy of the Court's July 13, 2022 Opinion & Order is available at https://tinyurl.com/ybvcbv3y from Leagle.com. ALLIANCE COAL: Bids for Discovery in Branson Suit Granted in Part ----------------------------------------------------------------- In the case, RANDY BRANSON; DANIEL CUNNINGHAM; and ALTON JOSEPH NEWBERRY On Behalf of Themselves & All Others Similarly-Situated, Plaintiffs v. ALLIANCE COAL, LLC; WEBSTER COUNTY COAL, LLC; ALLIANCE RESOURCE PARTNERS, LP; ALLIANCE RESOURCE OPERATING PARTNERS, LP; WARRIOR COAL, LLC; and RIVER VIEW COAL, LLC, Defendants, Civil Action No. 4:19-CV-00155-JHM-HBB (W.D. Ky.), Judge H. Brent Brennenstuhl of the U.S. District Court for the Western District of Kentucky, Owensboro Division, issued a Memorandum Opinion and Order granting in part and denying in part: a. the Defendants' motion to compel individualized discovery; and b. the Plaintiffs' motion to compel discovery. I. Background The case was brought as a collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201, et seq., and a class action under the Kentucky Wages and Hours Act ("KWHA"). The Plaintiffs allege the Defendants "systematically and willfully failed to comply with the requirements of the FLSA and KWHA." Following the filing of the Complaint, the Plaintiffs filed numerous consent documents from employees of a subsidiary or subsidiaries of the Defendants who wished opt into the case and become Party-Plaintiffs. Thereafter, the Plaintiffs filed a motion for conditional class certification. On April 20, 2021, the District Judge entered a Memorandum Opinion and Order which granted the Plaintiffs' motion and "conditionally certified an FLSA collective action of all individuals who worked as coal miners at the Dotiki, Warrior/Cardinal, and River View mines after May 19, 2017 and elect to opt into the action." The Court found the two-step certification process discussed in Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th Cir. 2006), was better suited to allow the Court to determine whether opt-in plaintiffs were "similarly situated." First, the Plaintiffs were to make a modest showing that putative class members are "similarly situated" to them. This step "screens out obviously deficient claims." After discovery, "trial courts examine more closely the question of whether particular members of the class are, in fact, similarly situated," as the court would then have "much more information on which to base its decision and, as a result, it employs a stricter standard." Importantly, at this stage, "certification is conditional and by no means final." A month after the granting of conditional certification, the District Judge approved the parties' agreed opt-in notice form for distribution, approved the parties' agreed opt-in consent form, directed the Defendants to deliver a list of all potential FLSA collective members to the Plaintiffs, directed the dispersal of the notice documents, and directed that those putative members had sixty days from the date of the notice to join the case. The 60-day period has expired, and a cumulative 526 individuals have opted-in as Party Plaintiffs in the action. After opt-in Plaintiffs were added, discovery was set to begin on whether those that opted-in were "similarly situated" to the Plaintiffs. Discovery disputes and issues, however, brewed among the parties. In an attempt to quell the disputes, the undersigned held a telephonic conference on Feb. 16, 2022. After speaking with the parties, Brennenstuhl ordered the parties to provide a collaborative document which set forth each discovery issue between the parties and each parties' respective position on the issues. This proved unfruitful, and the undersigned held a subsequent telephonic conference on March 2, 2022. After speaking with the parties, Judge Brennenstuhl ordered that, no later than April 1, 2022, the parties will file their respective motions to compel on the three discovery issues previously raised. The Order has led to the present motions. II. Discussion A. Defendant's Motion to Compel The Defendants' motion plainly iterates several points requested from the Court: (1) Authorize the Plaintiffs and Defendants to conduct individualized discovery of all individuals who submit affidavits or declarations in this case; (2) Authorize the Plaintiffs and the Defendants to conduct statistically significant representative discovery regarding the opt-in plaintiffs at each mine; (3) Allow the Defendants to serve written discovery on 50 opt-in plaintiffs at each mine to be randomly chosen using a scientifically sound methodology by a statistician retained by Defendants and in such a manner that allows the Plaintiffs transparency into the selection process; (4) Allow the Defendants to conduct remote depositions, each of which lasting no more than three hours, of 50 opt-in plaintiffs at each mine, with 40 of the opt-in plaintiffs being randomly chosen using a scientifically sound methodology by a statistician retained by the Defendants and in such a manner that allows the Plaintiffs transparency into the selection process, and with 10 of the opt-in plaintiffs being chosen by Defendants; and (5) Allow the Defendants to seek leave from the Court to serve additional written discovery and/or to conduct additional depositions to the full number of opt-in plaintiffs constituting a statistically significant representative sample at each mine if it is determined that more information is needed. For the first request, the Defendants state that the District Judge relied upon ten individuals' declarations to grant conditional certification and request the ability to conduct individualized discovery and deposition discovery from them and from anyone else who has or will submit affidavits or declarations on behalf of the Plaintiffs. As for the remaining points, the Defendants advocate against a "simple comparative percentage analysis (e.g., 10% of the entire class, etc.)" and instead seek a sample size of the Plaintiffs which is more statistically significant. As a result, the Defendants would be seeking discovery from 201 individuals. "In the spirit of compromise and as a gesture of goodwill," they offer to limit written discovery to 50 opt-in plaintiffs per mine, leading to a cumulative 150 opt-in individuals. If an individual was not to respond to the discovery requests, they argue that Rule 37 or Rule 41 measures to dismiss the individual from the suit should be appropriate. In contrast, the Plaintiffs seek "to limit the number of opt-ins subject to discovery in this case to no more than 10% of the collective and to make clear that opt-ins who do not respond to discovery will not be subject to dismissal from the case." They assert that "discovery should not be used as a tool to limit or discourage participation in the opt-in class" and the Defendants' attempts to seek "excessive and onerous written discovery" is an attempt to reduce the size of the class. They wish for the non-responsive respondent to be "skipped" and not be subject to dismissal from the class; instead, they would be replaced with another opt-in respondent. Judge Brennenstuhl utilizes statistically significance when determining the proper sample size for representative discovery, but says, the sample size will be reduced from the size provided by the Defendants. He finds that: (1) the parties will conduct individualized discovery on all opt-in plaintiffs who submit affidavits or declarations in the case, including written discovery and/or depositions, and this individualized discovery will not be included in the total number of opt-in plaintiffs; (2) written discovery will be limited to randomly selected 100 opt-in plaintiffs, not including those that submitted affidavits and/or declarations (29 from Webster County Coal/Dotiki Mine; 36 from Warrior/Cardinal Mine; and 35 from River View Mine); (3) of the 100 opt-in plaintiffs, 10 from each mine are to be randomly selected for depositions; (4) depositions taken pursuant to this discovery will be limited to 3 hours each; and (5) if an opt-in plaintiff is non-responsive to the discovery requests, they are to be replaced with another opt-in plaintiff who is randomly selected, and Defendants may to move for dismissal of the FLSA claim by the non-responsive opt-in plaintiff. B. Plaintiffs' Motion to Compel Related to the Defendants' motion above, the Plaintiffs filed a motion to compel seeking discovery from the Defendants for "the electronic payroll and timekeeping records and the Matrix Minor and Equipment Tracking System records for all Opt-In Plaintiffs, in addition to a 10% random sample of such Payroll/Timekeeping Records of the Kentucky Class who are not Opt-In Plaintiffs at each mine." In a later footnote, the Plaintiffs note that there are over 500 opt-in plaintiffs and "the potential Kentucky Class includes more than 1,800 individuals." Additionally, the Plaintiffs seek "disciplinary records relating to attendance and/or tardiness, documents reflecting complaints about work hours, documents reflecting any agreement or contract between an Opt-In Plaintiff and a Defendant, sheets that record 'early-in/early out' entries, to the extent they exist for all Opt-In Plaintiffs during the time period Nov. 2, 2014 to the present." When paired with the Defendants' motion, the Plaintiffs assert that "the Court should reject the Defendants' attempt to condition and 'link' any such production on the Defendants' purported right to take 'reciprocal' discovery from every member of the potential class and collective." The Defendants, in contrast to the Plaintiffs' arguments, propose that the discovery obligations be reciprocal and reiterates a stance for statistically significant representative sampling. They categorize the Plaintiffs' view as "patently unfair" and an unsupported "one-sided, inequitable discovery procedure." Additionally, the Defendants argue that the Plaintiffs requests for electronic timekeeping records, electronic paystubs, certain personnel records, and the "Early In and Out Late" sheets "exceeds the scope of Rule 26." Judge Brennenstuhl finds that the discovery sought by the Plaintiffs should be reciprocal to that which is provided to the Defendants. Therefore, the Defendants will turn over the requested discovery as it relates to the opt-in plaintiffs who have submitted an affidavit and/or declaration, in addition to the 100 randomly selected opt-in plaintiffs who will be subject to written discovery, consistent with the Courts findings above. They, however, are not required to turn over the requested discovery for opt-in plaintiffs who are not subjected to the written discovery. Moreover, to the extent the Plaintiffs are seeking documentation related to nonopt-in persons, the Defendants are not required to produce such documentation at this time. If, after conducting the discovery of the representative sample, either party can demonstrate to the Court that broader discovery is appropriate and necessary, the parties can so move. If broader discovery is granted for one party, the opposing party will also receive reciprocal to the request -- e.g., if the Defendants seek additional written discovery from other opt-in plaintiffs, and that request is granted, the Defendants must then also produce the requested discovery in Plaintiff's motion to compel for the opt-in plaintiffs who are selected. The parties are directed to meet and confer in order to pare down the questionnaire at DN 263-1. They are to work together and create a questionnaire that could be completed without the assistance of the Plaintiffs' counsel or, at a minimum, reduced assistance by counsel. After crafting a more suitable questionnaire, the parties are to submit it to the Court for final review and approval before being sent to the randomly selected opt-in plaintiffs. If no acceptable questionnaire can be drafted, the parties may be required to come before the Court in person and explain what is preventing the amicable crafting of the questionnaire. III. Conclusion For the foregoing reasons, Judge Brennenstuhl grants in part and denies in part the Defendants' motion to compel and the Plaintiffs' motion to compel. Individualized discovery will be conducted on all opt-in plaintiffs who have submitted an affidavit or discovery, and their discovery will not be counted in the total number of opt-in plaintiffs. Written discovery will be conducted on 100 randomly selected opt-in plaintiffs, consistent with the Court's findings. Depositions will be conducted on 30 of the randomly selected opt-in plaintiffs, consistent with the Court's findings. The Defendants will provide the Plaintiffs with the documentation requested in the motion to compel (DN 257), but only as to the opt-in plaintiffs who are subject to discovery, whether they be randomly selected or those that submitted an affidavit or declaration. If, after conducting discovery pursuant to the Order, either party can demonstrate to the Court that broader discovery is appropriate and necessary, the party can so move Judge Brennenstuhl directs the parties to confer to revise the discovery questionnaire attached to the Defendants' reply memorandum, consistent with the Court's findings. A full-text copy of the Court's July 13, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/5n6e6tp4 from Leagle.com. AMAZON.COM INC: Rittmann Class Status Bid Denied w/o Prejudice -------------------------------------------------------------- In the class action lawsuit captioned as Rittmann, et al., v. Amazon.com Inc., et al., Case No. 2:16-cv-01554-JCC (W.D. Wash.), the Hon. Judge John C. Coughenour entered an order denying the Plaintiffs' first motion for class certification without prejudice because this matter was subject to a stay. While the Plaintiffs have also filed a motion to lift the stay, it has not yet noted and, for the time being, the matter remains stayed. The Plaintiffs may again move for certification once the Court lifts the stay. The Defendants' motion for relief from the deadline to respond to Plaintiffs' motion is denied as moot. Amazon.com, Inc. is an American multinational technology company which focuses on e-commerce, cloud computing, digital streaming, and artificial intelligence. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3coijxK at no extra charge.[CC] AMAZON.COM: Seeks Relief from Deadline to Reply on Class Cert Bid ----------------------------------------------------------------- In the class action lawsuit captioned as BERNADEAN RITTMANN, et al., v. AMAZON.COM, INC., et al., Case No. (), the the Defendants seek relief from deadline to respond to the Rittmann plaintiffs' motion for class certification. The Rittmann Plaintiffs have filed a (second) class certification motion, in direct violation of this Court's prior Order stating that they could refile a motion for class certification only "once this Court lifts the stay." Although the Rittmann Plaintiffs have asked the Court to lift the stay, the Court has not ruled on that request and Amazon’s deadline to respond to that request has not even arrived. For several reasons, Amazon respectfully submits that it should be 22 relieved of any deadline to respond to the Rittmann Plaintiffs' pending Motion for Class Certification. Amazon.com is an American multinational technology company which focuses on e-commerce, cloud computing, digital streaming, and artificial intelligence. A copy of the Defendants' motion dated July 7, 2022 is available from PacerMonitor.com at https://bit.ly/3oib3X4 at no extra charge.[CC] The Plaintiffs are represented by: Todd L. Nunn, Esq. K&L GATES LLP 925 Fourth Ave, Suite 2900 Seattle, WA 98104-1158 Telephone: (206) 623-7580 Facsimile: (206) 623-7022 E-mail: todd.nunn@klgates.com The Defendants are represented by: Todd L. Nunn, Esq. K&L GATES LLP 925 Fourth Ave, Suite 2900 Seattle, WA 98104-1158 Telephone: (206) 623-7580 Facsimile: (206) 623-7022 E-mail: todd.nunn@klgates.com - and - James P. Walsh, Jr., Esq. Richard G. Rosenblatt, Esq. James P. Walsh, Jr., Esq. MORGAN, LEWIS & BOCKIUS LLP 502 Carnegie Center Princeton, NJ 08540-6241 Telephone: (609) 916-6600 Facsimile: (609) 916-6601 E-mail: richard.rosenblatt@morganlewis.com james.walsh@morganlewis.com AMERICAN LANDMARK: Diez Seeks Extension of Class Cert Deadline -------------------------------------------------------------- In the class action lawsuit captioned as LARA DIEZ, individually and on behalf of all others similarly situated, v. AMERICAN LANDMARK, LLC, Case No. 1:22-cv-20189-KMM (S.D. Fla.), the Plaintiff asks the Court to enter an order extending the class certification deadline by 60 days, from August 5, 2022 to October 4, 2022. On January 14, 2022, Defendant removed this putative class action alleging violations of the Telephone Consumer Protection Act. In response to the Plaintiff's Complaint, Defendant filed a Motion to Dismiss, and a Motion to Compel Arbitration. Both motions are fully briefed. On April 26, 2022, this Court granted in part Plaintiff's unopposed request to set a filing deadline and briefing schedule for Plaintiff's class certification motion. Pursuant to that Order, the Plaintiff is required to move for class certification by August 5, 2022. On May 27, 2022, this Court granted in part Plaintiff’s Motion to Compel Discovery. Pursuant to that Order, Defendant was ordered to produce certain discovery related to the Plaintiff's individual claims. On June 21, 2022, this Court granted in part and denied in part Defendant's Motion to Stay Discovery. American Landmark is one of the fastest-growing multifamily owner-operators, with a portfolio of communities throughout Texas and the Southeast. A copy of the Plaintiff's motion dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3clXGCv at no extra charge.[CC] The Plaintiff is represented by: Manuel Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com APP OF NEW MEXICO: Remand of Lax Class Suit to State Court Affirmed ------------------------------------------------------------------- In the cases, BRIAN LAX; TRACY BURON-HAHNLEIN; WERNER HAHNLEIN; JEREMY HADER, Plaintiffs-Appellees v. APP OF NEW MEXICO ED, PLLC, f/k/a AlignMD of New Mexico, PLLC, Defendant-Appellant, and LOVELACE HEALTH SYSTEM, LLC, Defendant. BRIAN LAX; TRACY BURON-HAHNLEIN; WERNER HAHNLEIN; JEREMY HADER, on their own behalf and on behalf of others similarly situated, Plaintiffs-Appellees v. LOVELACE HEALTH SYSTEM, LLC, Defendant-Appellant, and APP OF NEW MEXICO ED, PLLC, f/k/a AlignMD of New Mexico, PLLC, Defendant, Case Nos. 22-2057, 22-2058 (10th Cir.), Judge Nancy L. Moritz of the U.S. Court of Appeals for the Tenth Circuit affirms the district court's order remanding the putative class-action suit to New Mexico state court. I. Background The Plaintiffs in the suit are former patients who sought treatment at Lovelace facilities located in the state of New Mexico. They allege that APP, a company that provides emergency room physician and nurse practitioner staffing for Lovelace facilities, overbilled them at out-of-network rates even though the Plaintiffs were in-network with Lovelace. The Plaintiffs filed the class action against APP and Lovelace in New Mexico state court in February 2020. Their complaint included claims for violations of the New Mexico Unfair Practices Act, conversion, willful breach of contract, unjust enrichment, and civil conspiracy. They sought certification of a proposed class including "all New Mexico residents who, beginning four years prior to the filing date of the lawsuit, were billed by APP for amounts greater than the in-network amount permitted by their insurance provider for medical services provided at Lovelace facilities." J.A., Vol. I at 40. APP, which is a limited liability company with its principal place of business in Tennessee, removed the action to federal court based on the Class Action Fairness Act (CAFA). CAFA grants district courts jurisdiction over class actions involving at least 100 proposed class members, more than $5,000,000 in controversy, and the presence of a plaintiff class member who is a citizen of a state different from any defendant. Lovelace consented to the removal. The Plaintiffs later filed a motion to remand the case to state court. They asserted the case should be remanded because the Defendants had failed to establish that more than $5 million was in controversy. They further argued that even assuming the amount-in-controversy requirements were met, CAFA's "local controversy exception" mandated that the action remain in state court. The district court found that the $5 million jurisdictional threshold was met. That determination is not challenged in this appeal. It also initially found that the Plaintiffs had failed to show that the local controversy exception applied because they failed to establish that more than two-thirds of the proposed class members, whom the complaint defined as New Mexico residents, were also New Mexico citizens. The district court then took the Plaintiffs' motion to remand under advisement and provided them with the opportunity to conduct limited discovery on the question of class citizenship. The Plaintiffs filed an amended motion to remand. In connection with the amended motion, they produced an expert report from Professor James H. Degnan, an Associate Professor in the Department of Mathematics and Statistics at the University of New Mexico. Based on a statistical sampling Dr. Degnan conducted, the Plaintiffs argued they had proved that more than two-thirds of the class members were citizens of New Mexico. In his expert report, Dr. Degnan explained that APP had provided the Plaintiffs with information concerning all people who received services from APP during the four-year period covered by the lawsuit who were in-network with Lovelace and out-of-network with APP. From that list, the Plaintiffs' counsel removed transactions in which a customer did not have a New Mexico address, was not billed by APP, or received the first bill from APP after APP had already received payment. They also removed duplicate entries. This left 29,351 class member records. Professor Degnan then created a random sample of 100 class members from the revised list and provided the sample to the Plaintiffs' counsel. Law firm employees contacted the class members on the list by telephone and surveyed them using a script format agreed upon by the parties. The telephone survey showed that, of the 100 sample class members, 52 affirmed their New Mexico citizenship, one stated he was not a citizen, and 47 either would not respond or could not be reached. The Plaintiffs then retained a service that performed a "skip trace" to determine if additional information could be obtained about the 47 non-respondents. This skip tracing uncovered information concerning 83 of the 100 class members: Their current residential address, property ownership on Feb. 11, 2020 (the date the complaint was filed), and vehicle registration on Feb. 11, 2020. Dr. Degnan concluded with "a 95% confidence interval for this data that the true proportion of New Mexico citizens from the population of 29,351 individuals sampled is larger than 2/3." In other words, the survey results combined with the skip-tracing results showed that the class met the two-thirds requirement for the local controversy exception. The Defendants produced their own expert report that criticized the scientific reliability of Dr. Degnan's report. They again opposed the Plaintiffs' motion to remand, arguing the Plaintiffs had failed to meet the local controversy requirement because they had failed to show that (1) two-thirds of the proposed class were citizens of New Mexico, and (2) the New Mexico defendant named in the complaint, Lovelace, was a "significant defendant" whose conduct formed a significant basis for the Plaintiffs' claims and from whom plaintiffs sought significant relief. The district court determined that the Plaintiffs met their burden to show that the local controversy requirements were met. It therefore granted their motion to remand. APP and Lovelace filed petitions for permission to appeal, which the Tenth Circuit granted. II. Discussion A. The Defendants challenge the district court's finding that the Plaintiffs showed more than two-thirds of class members are New Mexico citizens. "A person is a citizen of a state if the person is domiciled in that state." "A person acquires domicile in a state when the person resides there and intends to remain there indefinitely," a status that courts typically discern from the "totality of the circumstances." The Defendants contend the district court's citizenship finding was clearly erroneous because the Plaintiffs' method of proof, which the district court accepted, was unreliable or inadequate. Because it is impracticable to obtain information concerning citizenship of all the members of a large class, affidavits or survey responses targeting a representative sample of class members is a legitimate means of satisfying a plaintiff's burden under a CAFA exception. The Defendants argue, however, that the Plaintiffs' approach in the case did not produce reliable indicia of citizenship. They claim the Plaintiffs' method was flawed because it allowed them to count a significant number of non-responding class members as New Mexico citizens. They argue that the district court's reliance on only these few factors rather than the totality of potentially relevant considerations was erroneous. The Tenth Circuit holds that the extrinsic proof offered by the Plaintiffs is framed in terms of citizenship, not mere residency. There is sufficient additional evidence on which the district court could rely in determining citizenship. First, the skip-tracing uncovered no data that they resided, owned property, or had registered vehicles in any other state. Second, they were residents of New Mexico both when they received the medical service and years later, when the skip tracing was performed. Both these factors support the district court's conclusion that these class members were not only residents of New Mexico but also were citizens who intended to remain within that state. The Tenth Circuit also sees no reason to conclude that the "residency plus one" method, when combined with other reasonable inferences to be drawn from the skip-tracing data, yielded only a 51% likelihood that each non-responding class member was a citizen. In addition, skip tracing, when properly conducted, is a legitimate means of determining citizenship, particularly when a telephone survey yields too few results to provide an adequate analysis of the proposed class. "What is in another man's mind must be determined by what he does as well as by what he says." B. The Defendants also challenge the district court's determination that Lovelace is a "significant" local defendant -- that is, one "whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class" and from whom plaintiffs seek "significant relief." To determine whether the "significant basis" element is met, the Tenth Circuit examines whether the local defendant's conduct "forms a significant basis for the claims asserted by the class." The Tenth Circuit holds that to the extent a merits-based inquiry is appropriate when deciding the remand issue, it cannot say at this stage that the Plaintiffs' complaint fails to seek significant relief from Lovelace. Finally, in considering Lovelace's significance as a defendant, the Tenth Circuit must compare its conduct with that of the other defendant. For the reasons it has identified, Lovelace qualifies as a significant local defendant under this comparative analysis. Contrary to the Defendant's contention, it does not appear that the Plaintiffs named Lovelace to defeat CAFA jurisdiction, or that Lovelace is not "actually a primary focus of the litigation." III. Conclusion The Tenth Circuit affirms the district court's order of remand. A full-text copy of the Court's July 13, 2022 Order & Judgment is available at https://tinyurl.com/355ppzx3 from Leagle.com. APPLE INC: Extension of Deadline to File Class Cert. Sought ----------------------------------------------------------- In the class action lawsuit captioned as RACHAEL SHAY, individually and on behalf of all others similarly situated, v. APPLE INC., et al., Case No. 3:20-cv-01629-JO-BLM (S.D. Cal.), the Parties file joint motion to continue deadline to file class certification motion and related dates: 1. To set the following briefing schedule for Plaintiff's class certification motion and related expert disclosures: a. The Plaintiff's class certification-related expert disclosures shall be due by September 9, 2022, concurrently with her motion for class certification; b. Plaintiff's reply in support of her motion for class certification shall be due by December 30, 2022; and c. Apple's opposition to Plaintiff's motion for class certification, including any rebuttal expert disclosures, shall be due by November 18, 2022; and 2. To set a further scheduling conference and additional case deadlines after this Court's order on Plaintiff's anticipated motion for class certification. Apple Inc. is an American multinational technology company that specializes in consumer electronics, software and online services headquartered in Cupertino, California. A copy of the Parties' motion dated July 1, 2022 is available from PacerMonitor.com at https://bit.ly/3AUf2Al at no extra charge.[CC] The Plaintiff is represented by: James R. Hawkins, Esq. Christina M. Lucio, Esq. Mitchell J. Murray, Esq. JAMES HAWKINS, APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 E-mail: james@jameshawkinsaplc.com christina@jameshawkinsaplc.com mitchell@jameshawkinsaplc.com The Defendants are represented by: Kate T. Spelman, Esq. Alexander M. Smith, Esq. JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071-2054 Telephone: (213) 239-5100 Facsimile: (213) 239-5199 E-mail: kspelman@jenner.com asmith@jenner.com AUTO-OWNERS INSURANCE: Bid to Certify Class in Mason's Suit Granted ------------------------------------------------------------------- In the case, MASON'S AUTOMOTIVE COLLISION CENTER, LLC, Plaintiff v. AUTO-OWNERS INSURANCE COMPANY, Defendant, Case No. 2:21-CV-02153 (W.D. Ark.), P.K. Homes, III, of the U.S. District Court for the Western District of Arkansas, Fort Smith Division, grants in part the Plaintiff's motion for certification of a class action. I. Background The Plaintiff is an Arkansas limited liability company operating an auto body shop in Fort Smith, Arkansas. The Defendant issued Plaintiff an insurance policy, policy number 175024-70545480-18 (the "Policy"), which provided coverage to its property with a limit of $399,200. The Policy's declarations also included a Coinsurance percentage of 80% and a deductible of $5,000. According to the Defendant, "coinsurance is a common feature of property insurance, which is designed to discourage policyholders from underinsuring their property." Because most losses are partial losses and not total losses, insureds are often incentivized to insure less than the full value of their property in exchange for lower premiums. "As a result, insurers end up paying a higher percentage of claims at the upper end of a policyholder's limit of insurance but receive relatively low premiums in return." To address this, coinsurance provisions are added to policies. In most polices Defendant issues, foundations are excluded from coverage. Though below-grade foundations are excluded from coverage under the Policy, the exclusion of below-grade foundations "from the total replacement cost is an underwriting philosophy rather than an element or function of the valuation process, and the deduction of below-grade foundations is left to the discretion of the adjuster." To exclude below-grade foundations from the valuation, the adjuster must "click the Separate Insurance Exclusion Box." Because an adjuster must manually "click the Separate Insurance Exclusion Box," the value of a below-grade foundation is commonly included when determining the total value of Covered Property even though the foundation itself is not Covered Property as defined by the policy. The Plaintiff's individual claims arise from a May 18, 2019, tornado that allegedly damaged its real and personal property. It filed a claim with the Defendant and was issued partial payment for the damages. The Plaintiff's claim was reduced by the Coinsurance premium as outlined in the Policy. However, in determining the value of Covered Property, the Defendant included the value of the property's foundation, though the foundation was an exclusion in the Policy. The Plaintiff argues that because the foundation was not Covered Property it should not have been included in determining the value of its Covered Property at the time of the loss, and by including the foundation the Defendant paid $18,000 less than it should have if the foundation had not been included when calculating the Coinsurance premium. The Plaintiff filed the instant lawsuit alleging individual claims for breach of contract and bad faith, and seeks to pursue class actions for declaratory judgment, breach of contract, and unjust enrichment. It filed the instant motion seeking to certify a multi-state class or, in the alternative, an Arkansas-only class under Rule 23(b)(2) or Rule 23(b)(3). The multi-state class is proposed to include the 20 states in which Defendant does business: Alabama, Arkansas, Georgia, Idaho, Iowa, Illinois, Indiana, Kansas, Missouri, North Carolina, North Dakota, Nebraska, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wisconsin. The Defendant opposes the certification of any class action. II. Analysis A. The Multi-State Class 1. Rule 23(b)(3) Judge Holmes finds that differences in state law render a multi-state class unmanageable. He says, the case centers on the question of how the actual cash value of Covered Property should be determined when calculating the value of any applicable Coinsurance premium under the Defendant's insurance policies. Three different tests exist to determine the actual cash value of property when the policy is silent on the definition, as in the present case. Those tests are: (1) the fair market value test; (2) the replacement costs minus depreciation test; and (3) the broad evidence rule. Determination of the actual cash value is central to the issues posed in the lawsuit. Indeed, the class action claims are based on allegations that the actual cash value of property was overinflated by including the value of below-grade foundations, and therefore policyholders were charged higher coinsurance premiums to the benefit of the Defendant. Because the three tests to determine actual cash value are obviously different and these differences would likely result in outcome-determinative differences, Judge Holmes finds such a class would be unmanageable. Further, as to the class action claim for unjust enrichment, "the states' different approaches to, or elements of, unjust enrichment are significant." Therefore, Judge Holmes declines to certify a multi-state class action under Rule 23(b)(3). 2. Rule 23(b)(2) Rule 23(b)(2) permits a class action when "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." Judge Holmes finds that the class' claims for unjust enrichment and breach of contract squarely call for an individualized award of monetary damages, and therefore such claims are inappropriate for Rule 23(b)(2) class certification. As to the putative class' claim for declaratory judgment, he says, due to differences in state law, a class action under Rule 23(b)(2) is inappropriate. As argued by the Defendant in its briefing, because the broad evidence rule "permits consideration of all evidence an expert would find relevant to a determination of value," there is an argument to be made that in states which have adopted the broad evidence rule it is permissible to consider the value of a below-grade foundation in determining the value of Covered Property because the condition and value of the otherwise excluded foundation is so inextricably linked the value of property as a whole. Because of these material differences in state law, Judge Holmes finds that declaratory judgment on a multi-state basis is inappropriate and declines to certify a multi-state class pursuant to Rule 23(b)(2). B. The Arkansas-Only Class Action Though differences between state law prevent certification of a multi-state class action, this concern does not in arise in an Arkansas-only class of Plaintiffs. Therefore, Judge Holmes certifies an Arkansas-only class. 1. Rule 23(a) Judge Holmes finds that (i) a class consisting of most Auto-Owners Arkansas policyholders who have filed claims since 2016 will likely satisfy the numerosity requirement, and therefore Rule 23(a)(1) is satisfied; (ii) the Plaintiff has submitted a sufficiently common question to the Court -- whether, under Arkansas law, the Defendant may include the value of an otherwise excluded foundation when determining the value of Covered Property in calculating any applicable Coinsurance premium; (iii) the Plaintiff's claims fairly encompass the claims of other potential class members, and the typicality requirement is satisfied; and (iv) the Court has not been presented with any potential conflicts of interest between the named Plaintiff and potential class members. 2. Rule 23(b) a. Rule 23(b)(2) As Judge Holmes discussed, though the class' claims for breach of contract and unjust enrichment may not be certified under Rule 23(b)(2), the claim for declaratory judgment is squarely addressed by the text of the rule. Because declaratory judgment regarding whether, under Arkansas law, the Defendant may include the value of an excluded foundation when calculating the Coinsurance premium would provide relief to each member of the class uniformly, such a claim may be properly certified under Rule 23(b)(2). Therefore, Judge Holmes certifies a class under Rule 23(b)(2) on the claim for declaratory judgment. b. Rule 23(b)(3) The unmanageability concerns of a multi-state class under Rule 23(b)(3) do not arise in an Arkansas-only class of plaintiffs. A class action under Rule 23(b)(3) is appropriate when "questions of law or fact common to class members predominate over any questions affecting only individual members, and the Court finds that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Judge Holmes is aware of no other litigation concerning this controversy filed in this forum or elsewhere. Additionally, because all claims and defenses available to the class members appear at this stage to be identical and arise from identical insurance policies, he finds that common questions of law and fact predominate over any individual issues, and such a class would be sufficiently manageable. Further, because all potential plaintiffs are Arkansas residents, he finds that centering litigation in this forum is desirable. Finally, due to the relatively small value of the individual claims when compared to the cost of litigation, he finds that a class action is the superior method for fairly and efficiently resolving the claims of the class. Therefore, Judge Holmes certifies an Arkansas-only Rule 23(b)(3) class action on claims of breach of contract and unjust enrichment, with the class to be defined as stated. c. Hybrid Class Action and Bifurcation Because he has certified a class under both Rule 23(b)(2) and (b)(3), Judge Holmes holds that the certification is a "hybrid certification." To insulate the (b)(2) class from the money-damage portion of the litigation, he bifurcates the action into two phases. In the first phase, liability will be determined through the declaratory relief sought by the Rule 23(b)(2) class. Should the case proceed to the second phase, the claims of the Rule 23(b)(3) class will be adjudicated. The classes certified under both Rule 23(b)(2) and Rule 23(b)(3) will be defined as follows: All Arkansas residents who have or had a commercial property damage policy of insurance with Auto-Owners at any time from Sept. 24, 2016 to the present, whose foundations were excluded from coverage by the terms of the policy, and who received a payment for a property damage claim which payment was reduced by the Coinsurance provisions of the policy pursuant to a property valuation that included the cost of foundations. The Plaintiff must separately file a motion for notice to be distributed to potential Rule 23(b)(3) class members. d. Appointment of Class Counsel The Plaintiff's counsel has filed a declaration which demonstrates that the Plaintiff's counsel is competent to represent the interests of the Rule 23(b)(2) and Rule 23(b)(3) classes. The counsel has ably represented the Plaintiff since the inception of this litigation, and the declaration filed by the counsel details the counsels' experience in handling other consumer fraud cases and class action litigation. Therefore, Judge Holmes finds that the Plaintiff's counsel has satisfied the requirements of Rule 23(g) and appoints the Plaintiff's counsel as the class counsel. III. Conclusion Judge Holmes grants in part the Plaintiff's motion as stated. He bifurcates the case, with the claim of the Rule 23(b)(2) class to be adjudicated in phase one, and the claims of the Rule 23(b)(3) class to be adjudicated in phase two. The Plaintiff's counsel is appointed as the class counsel for both the Rule 23(b)(2) and Rule 23(b)(3) classes. A full-text copy of the Court's July 13, 2022 Opinion & Order is available at https://tinyurl.com/3ddy43wv from Leagle.com. BEACH BOYS: Conditional Cert. of FLSA Collective Action OK'd ------------------------------------------------------------ In the class action lawsuit captioned as ROBERT CONREY, et. al. v. BEACH BOYS OF FT. LAUDERDALE, LLC, and KRIKOR KEVORKIAN, individually, Case No. 0:22-cv-60843-PMH (S.D. Fla.), the Hon. Judge Patrick M. Hunt entered an order granting the Plaintiff's motion for conditional certification of Fair Labor Standards Act (FLSA) Collective Action pursuant to 29 U.S.C. section 216(b): (1) Conditional certification is hereby granted in the above styled action as a collective action under Section 216(b) of the Fair Labor Standards Act for the following collectives: -- Tip Collective "All Servers and Bartenders who worked for the Defendants in Fort Lauderdale, Florida, during the three years preceding this lawsuit who were required to surrender any portion of their tips to Defendants;" and -- Overtime Collective "All Servers and Bartenders who worked for the Defendants in Fort Lauderdale, Florida, during the three years preceding this lawsuit who were required to work in excess of 40 hours in a workweek and were not compensated the applicable federal overtime wages;" (2) the Plaintiff, Robert Conrey, is appointed as the Representative of each Collective with authority to negotiate and appear at settlement conferences and mediations on behalf of each class; (3) Attorneys Jordan Richards, Esq. and David Nudel, Esq. are appointed as counsel for the Collectives; (4) the Court Orders production from the Defendants, within 10 calendar days of this Order, of a complete list, electronically in an Excel spreadsheet, of each and every server listed alphabetically from "A" to "Z" -- with their last known home address in a separate field corresponding with each name – who was ever employed as a server or bartender by Defendants at any time between May 2, 2019, and the date of this motion; (5) The Plaintiff's counsel is hereby authorized to send by U.S. Mail or electronically a Court-Approved Notice to all such persons about their rights to opt-in to this collective action by filing a Consent to Join Lawsuit; and (6) The putative class under 216(b) is given 45 days from the date of this Order to submit the Consents to Join to Plaintiff's Counsel or otherwise opt-in to this case. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3PkclfP at no extra charge.[CC] BELFOR USA: Case Management Order Entered in Rodriguez Suit ----------------------------------------------------------- In the class action lawsuit captioned as RICHARD RODRIGUEZ v. BELFOR USA GROUP, INC., et al., Case No. 22-cv-02071-VKD (N.D. Cal.), the Hon. Judge Virginia K. Demarchi entered a case management order as follows: -- Motion for collective action March 31, 2023 certification pursuant to 29 U.S.C. section 216(b) and motion for class certification under Fed. R. Civ. P. 23: -- The Defendants' opposition April 28, 2023 to class certification: -- The Plaintiff's reply in May 12, 2023 support of class certification -- Hearing on motion for class May 30, 2023 certification: Belfor is a multinational corporation that sells recovery and restoration services, for the purpose of restoring structures damaged as a result of fires, floods, and natural disasters. A copy of the Court's order dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3aLKM00 at no extra charge.[CC] BELLEVILLE, IL: Denial of Bid to Certify Dewalt's Class Reversed ---------------------------------------------------------------- In the case, Jeffrey Dewalt, on Behalf of Himself and Others Similarly Situated, Petitioner-Appellant v. THE CITY OF BELLEVILLE, Respondent-Appellee, Case No. 5-20-0366 (5th Cir.), the Appellate Court of Illinois, Fifth District, reverses the circuit court's order denying the Petitioner's motion for class certification. I. Background On Oct. 28, 2015, Petitioner Dewalt, on behalf of himself and other similarly situated persons, filed a complaint and motion for class certification against the Respondent, the City of Belleville, in Saint Clair County, Illinois. The Petitioner, as named representative, represented residents of Saint Clair County, Illinois, and other counties within and outside the State of Illinois, who were previously cited and arrested for any felony offense set forth in the City of Belleville's Traffic Code Redemption of Vehicle Ordinance Section 70.075 (approved April 4, 2011), and then subsequently charged a $500 level 1 Redemption Fee to reimburse the City's police department for time and resources associated with the impoundment and release of towed vehicles (the class). The Petitioner, as the named representative, stated that a City police officer stopped and subsequently arrested him on Dec. 9, 2014, "for a violation of the Illinois Compiled Statutes," without reference to the specific charges. That being said, the record indicated that the City arrested and charged petitioner with driving under the influence (DUI), a designated felony under ordinance 70.075,2 following a traffic stop for improper lane usage and failure to signal. Following his arrest, the Petitioner's vehicle was towed, and the City subsequently charged petitioner $500 to begin the process of retrieving the towed vehicle. In the two-count complaint, the class alleged that the Redemption Fee was unconstitutional, where it violated their substantive due process rights pursuant to article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, Section 2). The class argued that the "Redemption Fee is not the tow fee but merely a receipt given to the Plaintiffs so they can then appear at the towing facility, which possesses their automobile and then pay the actual towing fee." Thus, the class asserted that no rational justification existed for the Redemption Fee because it "is not connected or related in whole or in part to the cost of towing, towing services or actual services provided." Rather, once payment is made to the City police department, additional fees are required to a third-party towing facility for the towing and impound of the vehicle. Following multiple motions for extension of time to respond to the Petitioner's class action complaint, the City filed an answer and affirmative defenses on Jan. 11, 2016. In particular, the City asserted 10 affirmative defenses, including the following: (1) the ordinance imposes a constitutionally valid and reasonable administrative fee; (2) if the administrative fee is not entirely reasonably related to the costs included by the City, then any damages suffered by the members of the class should be reduced to that amount; (3) the ordinance imposes a constitutionally valid and reasonable fee; (4) claims contained in the complaint are barred for failure to exhaust administrative remedies; (5) the City is immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq.; (6) the statute of limitations bars claims of various members; (7) petitioner fails to state a claim upon which relief may be granted; (8) petitioner lacks standing to bring the class action suit; (9) claims of various members of the class are barred by the doctrine of estoppel; and (10) claims of various members of the class are barred by the doctrine of laches. On Feb. 9, 2016, the Petitioner filed a motion for leave of court to submit additional discovery. Following a hearing on May 16, 2016, the circuit court, over the City's objection, granted the Petitioner's motion. On Jan. 23, 2017, the City filed a motion to stay proceedings, arguing the need to avoid spending time, effort, and money in the current case, provided the Petitioner's counsel filed a similar case before the appellate court with briefing complete and oral argument scheduled for March 2017. Following a hearing on May 7, 2017, the circuit court stayed the proceedings and reset the cause for July 31, 2017. On April 12, 2018, following multiples continuances, the City filed a motion for summary judgment on the issue of standing and attached the affidavit of Thomas Hunter, the City's attorney. The City argued the Petitioner failed to demonstrate standing to bring the cause in his individual capacity. Accordingly, the City requested the circuit court grants summary judgment and dismisses the complaint with prejudice for a lack of standing to bring any claim. On June 8, 2018, in response to the City's April 12, 2018, motion for summary judgment, the Petitioner argued that a genuine issue of material fact existed. Shortly thereafter, following a hearing on the City's motion for summary judgment, the circuit court denied the City's motion on July 17, 2018. On Feb. 13, 2019, the Petitioner testified in a discovery deposition. On Dec. 9, 2014, he drove Tracy's vehicle intoxicated, and a City police officer arrested him. At the time of the arrest, he and Tracy were dating; however, they married 10 days later on Dec. 19, 2014. Following the Petitioner's arrest, Tracy paid the $300 cash bond for his release with his cash. The next day, Tracy paid $500 to the police department with the Petitioner's "vacation money" and received proof of payment. The Petitioner confirmed that, weeks before his Dec. 9, 2014, arrest, the city police in O'Fallon, Illinois, arrested him for DUI, and, similarly, he paid $500 to the police department with his own money to retrieve the towed and impounded vehicle. On Aug. 30, 2019, the City filed a combined motion for summary judgment and memorandum in support, arguing, again, that the Petitioner lacked standing to bring the cause or represent the class. The City asserted that his "representation that he owned the vehicle at the time of the incident is demonstrably false," as evidenced by documents from the Illinois Secretary of State confirming Tracy owned the vehicle. On Sept. 24, 2019, the Petitioner filed a motion for leave to amend the class action complaint pursuant to section 2-616 of the Code of Civil Procedure (Code) (735 ILCS 5/2-616 (West 2018)). He, in requesting leave to amend, desired to add an alternate theory to the original Oct. 28, 2015, complaint, arguing that the Redemption Fee failed to comply with the rationally related constitutional standard. The next day, he filed a brief and argument against the City's motion for summary judgment, arguing, inter alia, that he had standing to file the cause and represent the class where he paid the fee in question and vehicle ownership was an irrelevant issue. On Sept. 27, 2019, the City filed a combined response to the Petitioner's motion for class certification and memorandum in law in support, arguing he failed to demonstrate a direct injury as required for standing and did not demonstrate that he could adequately serve as a class representative. Accordingly, the Petitioner could not satisfy the requirements of class certification set forth by section 2-801 of the Code (id. Section 2-801). On Nov. 5, 2019, following the circuit court's order granting petitioner's motion for leave to amend, the Petitioner filed the first amended class action complaint on behalf of a class pursuant to section 2-801 of the Code. He argued that the Redemption Fee failed to comply with the rationally related constitutional standard violating their substantive due process rights pursuant to article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, Section 2). He also argued that the Redemption Fee was arbitrary and unreasonable where no similar fee was charged for police activity concerning citing, arresting, and booking a defendant for a non-motor vehicle related offense. Shortly thereafter, the Petitioner filed a brief and argument in support of his motion for class certification asserting that he met the four elements of section 2-801 of the Code. On Dec. 10, 2019, the City filed an answer and affirmative defenses to the Petitioner's first amended class action complaint and a supplement to the City's Aug. 30, 2019, motion for summary judgment. In requesting summary judgment, the City asserted that petitioner's "amendments in the First Amended Complaint do not cure, nor even address, the substance and grounds for summary judgment in the Defendant's Combined Motion for Summary Judgment and Memorandum in Support Thereof." On Dec. 11, 2019, the circuit court heard argument on the Petitioner's motion for class certification and the City's motion for summary judgment. On Feb. 4, 2020, the circuit court entered and order denying the Petitioner's motion for class certification without prejudice. The court, in a handwritten order, stated the following: "Court finds that this cause supports class certification of similarly aggrieved persons. However, named Plaintiff has insufficient standing to bring cause or represent class." The court provided the Petitioner's attorney 30 days to substitute petitioner for a different representative with standing to challenge ordinance 70.075. On Feb. 24, 2020, the Petitioner filed a "Motion to Reconsider and/or For More Definite Order." He informed the circuit court that, despite his requests, the City "flatly denied" to provide information on which class members paid the administrative fee at issue on or before the original complaint was filed. In seeking clarification, the Petitioner requested the circuit court to specify "what facts specifically disallowed standing" for petitioner to "adequately represent the class (i.e., non-ownership of vehicle, his fees were paid by another from his money, etc.)." Because the ordinance does not require only the vehicle's owner to pay the fee, the Petitioner posited that he satisfied the adequacy element of section 2-801(3) of the Code (735 ILCS 5/2-801(3). Accordingly, he requested the court vacates the portion of the order requiring petitioner be removed as class representative. Due to the COVID-19 pandemic, resolution of the Petitioner's motion to reconsider was delayed. On Oct. 13, 2020, the circuit court heard argument on the Petitioner's motion to reconsider via Zoom. The Petitioner, again, argued that the ordinance did not require vehicle ownership or physical payment for release of the towed and impounded vehicle. Rather, the ordinance required that petitioner pay the Redemption Fee with his own money to secure the release of the vehicle, which he did. In response, the City reiterated its point that the Petitioner could not have standing without ownership of the vehicle and proof of physical payment. Following argument, the court denied the Petitioner's motion. The Petitioner filed a timely notice of appeal. II. Analysis On appeal, the Petitioner argues the circuit court erred by denying class certification. The circuit court's Feb. 4, 2020, order determined that "this cause supported certification of a class of similarly aggrieved persons." The court, however, denied the Petitioner's motion for class certification without prejudice, because he had insufficient standing to bring the cause or represent the class. Accordingly, the threshold question before the Appellate Court is whether the circuit court erred by finding the Petitioner lacked standing to challenge ordinance 70.075 on behalf of the named class. The Appellate Court concludes the Petitioner has standing. Ordinance 70.075 states that the fees at issue "are to be paid by the registered owner or person seeking the vehicle's release regardless of whether the owner of said vehicle or any other authorized person was driving the vehicle at the time of the arrest and impoundment by the Police Department." Despite this, the City argues the Petitioner did not suffer a direct injury as a result of enforcement of the ordinance for two reasons. First, petitioner did not own the vehicle on the date of the incident. Second, even if the Petitioner used his own money to pay the Redemption Fee, he did so voluntarily, thus, he lacks standing to challenge the ordinance. The Appellate Court disagrees. It says, according to the plain language of ordinance 70.075, ownership of the vehicle is irrelevant. The direct injury, which can be traced back to the City's ordinance, is the payment of the $500 Redemption Fee. This fee, which was paid by the Petitioner as a result of the City's enforcement of ordinance 70.075, could be redressed by a trial on this matter. Moreover, the injury is distinct and palpable provided it refers to a class of aggrieved persons, represented by petitioner, who have been subjected to a $500 Redemption Fee if cited and arrested for certain felony offenses under ordinance 70.075 while operating a motor vehicle. As such, there is no question that petitioner alleges an injury that is distinct and palpable, rather than a generalized grievance common to all members of the public. Accordingly, the Appellate Court concludes the Petitioner has standing. Turning to the circuit court's denial of class certification, based on a review of the court's ruling, the Appellate Court finds that two of the four elements of section 2-801 of the Code, specifically, commonality and adequacy, are relevant to the appeal. It concludes the circuit court abused its discretion in denying class certification. First, as it relates to the element of commonality, the Appellate Court cannot conclude that the Petitioner's interest is different than the other class members, where the common issue for all members is whether the $500 Redemption Fee is rationally related to the ordinance's stated purpose of reimbursing the City's police department for expenses associated with towing and impounding vehicles. Additionally, the persons subject to this fee are those who are cited and arrested for any felony offense set forth in ordinance 70.075. As stated, the Petitioner, similar to the other class members, was subject to the Redemption Fee because he was arrested for a charge set forth in ordinance 70.075, and the car he was driving was towed and impounded. Because the ordinance neither requires ownership of the vehicle nor that the owner to pay the fee, the element of commonality is satisfied. Next, for the reasons stated on the issue of standing, the Petitioner would adequately represent the class as class representative. Moreover, the record contains no evidence of inadequacy on the part of his attorney to represent the class. Accordingly, the Appellate Court concludes the circuit court abused its discretion in denying class certification, where certification of a class of similarly aggrieved persons in the cause is supported. III. Conclusion For the foregoing reasons, the Appellate Court reverses the judgment of the circuit court denying class certification, remands the cause, and directs the circuit court with instructions to certify the class. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/2dcz7zs5 from Leagle.com. BIG EASY: Asks More Time to Respond to Rule 23 Class Cert. Bid -------------------------------------------------------------- In the class action lawsuit captioned as Ramos et al v. Big Easy Foods of Louisiana LLC, et al., Case No. 2:17-cv-01298-JDC-KK (W.D. La.), the Defendants Big Easy Foods of Louisiana, LLC and Melchor Maya ask the Court granting them a 30-day extension of time, until August 8, 2022, to respond to the Plaintiffs' Motion for Rule 23 Class Certification. On March 28, 2022, the Plaintiffs filed a Second Amended Complaint. The Defendants filed their Answer and Defenses to Plaintiffs' Second Amended Complaint on April 27, 2022. On May 23, 2022, the Plaintiffs filed an Unopposed Motion to Extend Deadline to File Motion for Class Certification to June 17, 2022. On May 24, 2022, the Court granted the Plaintiffs' Unopposed Motion to Extend Deadline to File Motion for Class Certification and set the deadline to June 17, 2022. On June 17, 2022, the Plaintiffs filed a Motion for Rule 23 Class Certification. On June 18, 2022, the Plaintiffs filed a Motion for Leave to File Document After Deadline and for Leave to Exceed Page Limits on Plaintiffs' Memorandum in Support of Their Motion for Rule 23 Class Certification. On June 21, 2022, the Court granted Plaintiff’s Motion for Leave to File. A copy of the Defendants' motion dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3PhwNy6 at no extra charge.[CC] The Plaintiffs are represented by: Edward B. Cloutman, III, Esq. LAW OFFICES OF EDWARD B. CLOUTMAN III 3301 Elm Street Dallas, TX 75226-2562 E-mail: ecloutman@lawoffices.email - and - Anna Bocchini, Esq. Christopher J. Willett, Esq. Rebecca Eisenbrey, Esq. Colleen Anne Mulholland, Esq. EQUAL JUSTICE CENTER 510 S. Congress Ave., Suite 206 Austin, TX 78704 E-mail: abocchini@equaljusticecenter.org cwillett@equaljusticecenter.org reisenbrey@equaljusticecenter.org cmulholland@equaljusticecenter.org The Defendants are represented by: Thomas J. Gayle, Esq. GAYLE LAW FIRM, LLC 713 Kirby Street Lake Charles, LA 70601 Telephone: (337) 494-1220 Facsimile: (337) 494-1145 E-mail: tgayle@gaylelaw.com - and - Scott D. Huffstetler, Esq. Erin L. Kilgore, Esq. Chelsea G. Caswell, Esq. Terry D. McCay, Esq. KEAN MILLER LLP 400 Convention Street, Suite 700 P. O. Box 3513 (70821-3513) Baton Rouge, LA 70802 Telephone: (225) 387-0999 Facsimile: (225) 388-9133 E-mail: scott.huffstetler@keanmiller.com erin.kilgore@keanmiller.com chelsea.caswell@keanmiller.com terry.mccay@keanmiller.com BIG EASY: Opposition to Class Cert Bid Extended to August 8 ----------------------------------------------------------- In the class action lawsuit captioned as NOE VEGA RAMOS, ET AL., v. BIG EASY FOODS OF LOUISIANA LLC, ET AL., Case No. 2:17-cv-01298-JDC-KK (W.D. La.), the Hon. Judge James D. Cain, Jr. entered an order granting the motion for extension of time to file opposition to the Plaintiffs' motion for Rule 23 Class Certification: -- The Defendants shall file their opposition no later than August 8, 2022. -- The Plaintiffs shall file their reply no later than August 22, 2022. Big Easy Foods wholesales foods. The Company distributes a range of food to retailers such as shrimps, smoked sausages, and boneless chickens. copy of the Court's order dated July 6, 2022 is available from PacerMonitor.com at https://bit.ly/3ob4IN5 at no extra charge.[CC] BOSWORTH COMPANY: Dickson Files 3rd Supplement to Class Cert Bid ---------------------------------------------------------------- In the class action lawsuit captioned as STEVEN DICKSON, and all others similarly situated under 29 USC section 216(b), v. THE BOSWORTH COMPANY, LTD., Case No. Case 7:22-cv-00010-DC-RCG (W.D. Tex.), the Plaintiff files a third supplement to his motion to proceed as a collective action and to authorize notice to similarly situated employees, under the Fair Labor Standards Act of 1938 ("FLSA"). Pursuant to the Court's orders allowing preliminary discovery, the Plaintiffs deposed one witness from each of the following departments: (i) Plumbing Construction, (ii) HVAC Construction, (iii) Commercial A/C (HVAC), and (iv) Electrical. Witnesses from the Electrical and Commercial A/C (HVAC) departments confirmed that employees within those departments should also receive notice of this lawsuit because they were paid on a ticket hour basis, the Plaintiff says. The evidence is clear that electricians and commercial HVAC technicians were paid based upon billable ticket hours worked. Thus, because commercial HVAC technicians most definitely were not ever paid for all overtime hours worked, and electricians may not have been paid for all overtime hours worked, both types of employees should also receive notice of this lawsuit, the Plaintiff adds. Bosworth provides mechanical contracting services. A copy of the Plaintiff's motion to certify class dated July 6, 2022 is available from PacerMonitor.com at https://bit.ly/3PFL1IC at no extra charge.[CC] The Plaintiff is represented by: Fernando M. Bustos, Esq. Matthew N. Zimmerman, Esq. Brandon C. Callahan, Esq. BUSTOS LAW FIRM, P.C. P.O. Box 1980 Lubbock, TX 79408-1980 Telephone: (806) 780-3976 Facsimile: (806) 780-3800 E-mail: fbustos@bustoslawfirm.com mzimmerman@butsoslawfirm.com bcallahan@bustoslawfirm.com BP EXPLORATION: Cook's Expert Testimony Excluded From Favorite Suit ------------------------------------------------------------------- In the case, CARL VERNON FAVORITE v. BP EXPLORATION & PRODUCTION, INC., ET AL. SECTION: "A" (5), Civil Action No. 17-3192 (E.D. La.), Judge Jay C. Zainey of the U.S. District Court for the Eastern District of Louisiana issued an order granting: (i) the Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and (ii) Motion for Summary Judgment, both filed by the Defendants BP Exploration & Production, Inc., BP America Production Co., and BP p.l.c., and joined by Defendants Halliburton Energy Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and Transocean Offshore Deepwater Drilling, Inc. The following motions are before the Court: The Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff Favorite opposes the motions. The motions, submitted for consideration on July 6, 2022, are before the Court on the briefs without oral argument. The case is a B3 lawsuit that was allotted to this section from Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon disaster that occurred in the Gulf of Mexico in 2010. The B3 pleading bundle includes personal injury claims due to oil or chemical exposure during the disaster response -- In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20, 2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021). B3 plaintiffs either opted out of the Medical Settlement or were not members of the settlement class. The Plaintiff in this B3 lawsuit, Favorite, was employed in the Deepwater Horizon oil spill response effort. Favorite claims that exposure to crude oil and chemical dispersants (the former being released by the oil spill itself and the latter being used in the cleanup process) caused the following injuries: Rash, tinea corpora, blistering, crusting, dryness/flaking, inflammation, redness or swelling, itching, lesions, peeling, scaling, welts, cough, sinusitis, chest congestion, vestibulitis, pharyngitis, sinus bradycardia/weakness, bronchitis, chronic rhinitis, decreased sense of smell, nasal congestion/discharge, throat irritation, arm and back pain, joint pain, weakness, constipation, nausea, abdominal cramps/pain, diarrhea, dizziness, insomnia, fatigue, headache, shortness of breath, wheezing, swelling/mass head and neck, facial swelling, tingling in arms and legs, vision problems, blurred vision, eye burning and irritation, hydronephrosis and difficulty urinating. From the inception of the severed B3 cases, it has been understood that to prevail "B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." Because causation had proved to be the critical element in the BELO cases, it was predicted to be the "make-or-break" issue for many B3 cases as well. A B3 plaintiff must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the oil spill response. The issue of causation will require an individualized inquiry. The Plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population. Specific causation is whether a substance caused a particular individual's injury, i.e., the Plaintiff's injury. If his case fails at the first-step of producing admissible evidence as to general causation, then the issue of specific causation is rendered moot. Hundreds of B3 cases were reassigned from MDL 2179 to the judges of this district. It is beyond dispute that in each of those cases, the Plaintiff must prove both general and specific causation as those concepts are defined. The Plaintiff's will-call witness list identifies one expert medical doctor, Jerald Cook, M.D., who is identified as an expert witness regarding "causation." Dr. Cook has produced a report dated March 14, 2022, entitled Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers A Cause and Effect Analysis. The report is not unique to the case -- it has been described by another judge as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Presumably, the Plaintiff intends for Dr. Cook's testimony to establish both general causation and specific medical causation in the case. The instant motion in limine pertains to the Plaintiff's use of Dr. Cook's report, and the testimony that would derive from it at trial, as evidence of both general and specific causation. The Movants seek to exclude Dr. Cook's opinions on various grounds including the principles espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point out that two other judges in this district have evaluated Dr. Cook's medical causation report and have concluded that it should be excluded. If Dr. Cook's opinions are excluded from trial, then the Defendants argue that their motion for summary judgment must be granted because the Plaintiff will have no expert medical causation evidence, which would constitute a complete failure of proof on an essential element of the case. But even if the Court denies the motion in limine and allows Dr. Cook to testify at trial, the Defendants contend that the report does not provide evidence of specific causation vis à vis the Plaintiff, and the Plaintiff has identified no other expert who would provide specific causation evidence. Judge Zainey has carefully studied and considered the numerous decisions issued by the other judges of this district who have determined that Dr. Cook's opinions should be excluded. For the same reasons given by Judges Vance, Barbier, Morgan, and Ashe when they granted the Defendants' motion in limine directed at the same version of Dr. Cook's report that was produced in the case, he grants the Defendants' motion in limine. Consequently, the Defendants' motion for summary judgment is likewise granted. Accordingly, Judge Zainey grants: a. the Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and b. their Motion for Summary Judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/2dem3dbu from Leagle.com. BP EXPLORATION: Cook's Expert Testimony Excluded From Ward Suit --------------------------------------------------------------- In the case, JENNIFER ROBIN WARD v. BP EXPLORATION & PRODUCTION, INC., ET AL. SECTION: "A" (2), Civil Action No. 17-4220 (E.D. La.), Judge Jay C. Zainey of the U.S. District Court for the Eastern District of Louisiana issued an order granting: (i) the Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and (ii) Motion for Summary Judgment, both filed by Defendants BP Exploration & Production, Inc., BP America Production Co., and BP p.l.c., and joined by Defendants Halliburton Energy Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and Transocean Offshore Deepwater Drilling, Inc. The following motions are before the Court: The Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff Ward opposes the motions. The motions, submitted for consideration on July 6, 2022, are before the Court on the briefs without oral argument. The case is a B3 lawsuit that was allotted to this section from Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon disaster that occurred in the Gulf of Mexico in 2010. The B3 pleading bundle includes personal injury claims due to oil or chemical exposure during the disaster response -- In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20, 2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021). B3 plaintiffs either opted out of the Medical Settlement or were not members of the settlement class. The Plaintiff in this B3 lawsuit, Ward, was employed in the Deepwater Horizon oil spill response effort. Ward claims that exposure to crude oil and chemical dispersants (the former being released by the oil spill itself and the latter being used in the cleanup process) caused the following injuries: breathing problems, sinusitis, bronchitis, sinus pain, chest congestion, cough, sore throat, upper respiratory infection, ear pain, runny nose, chronic rhinitis, chronic pansinusitis, nausea diarrhea, vomiting, weight loss, tired, weakness, malaise, fatigue, headaches, abscess of thigh, rashes, anxiety, blurred vision, chest pain, shortness of breath, asthma, wheezing and joint pain. From the inception of the severed B3 cases, it has been understood that to prevail "B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." Because causation had proved to be the critical element in the BELO cases, it was predicted to be the "make-or-break" issue for many B3 cases as well. A B3 plaintiff must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the oil spill response. The issue of causation will require an individualized inquiry. The Plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population. Specific causation is whether a substance caused a particular individual's injury, i.e., the Plaintiff's injury. If his case fails at the first-step of producing admissible evidence as to general causation, then the issue of specific causation is rendered moot. Hundreds of B3 cases were reassigned from MDL 2179 to the judges of this district. It is beyond dispute that in each of those cases, the Plaintiff must prove both general and specific causation as those concepts are defined. The Plaintiff's will-call witness list identifies one expert medical doctor, Jerald Cook, M.D., who is identified as an expert witness regarding "causation." Dr. Cook has produced a report dated March 14, 2022, entitled Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers A Cause and Effect Analysis. The report is not unique to the case -- it has been described by another judge as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Presumably, the Plaintiff intends for Dr. Cook's testimony to establish both general causation and specific medical causation in the case. The instant motion in limine pertains to the Plaintiff's use of Dr. Cook's report, and the testimony that would derive from it at trial, as evidence of both general and specific causation. The Movants seek to exclude Dr. Cook's opinions on various grounds including the principles espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point out that two other judges in this district have evaluated Dr. Cook's medical causation report and have concluded that it should be excluded. If Dr. Cook's opinions are excluded from trial, then the Defendants argue that their motion for summary judgment must be granted because the Plaintiff will have no expert medical causation evidence, which would constitute a complete failure of proof on an essential element of the case. But even if the Court denies the motion in limine and allows Dr. Cook to testify at trial, the Defendants contend that the report does not provide evidence of specific causation vis à vis the Plaintiff, and the Plaintiff has identified no other expert who would provide specific causation evidence. Judge Zainey has carefully studied and considered the numerous decisions issued by the other judges of this district who have determined that Dr. Cook's opinions should be excluded. For the same reasons given by Judges Vance, Barbier, Morgan, and Ashe when they granted the Defendants' motion in limine directed at the same version of Dr. Cook's report that was produced in the case, he grants the Defendants' motion in limine. Consequently, the Defendants' motion for summary judgment will likewise be granted. Accordingly, Judge Zainey grants: a. the Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and b. their Motion for Summary Judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/yazmpmn4 from Leagle.com. BP EXPLORATION: Court Excludes Cook's Testimony From Harris Suit ---------------------------------------------------------------- In the case, AL'TERRYAL HARRIS v. BP EXPLORATION & SECTION "R" (4) PRODUCTION, INC., ET AL., Civil Action No. 17-4342 (E.D. La.), Judge Sarah S. Vance of the U.S. District Court for the Eastern District of Louisiana issued an Order and Reasons granting: a. BP Exploration & Production, Inc., BP American Production Company, and BP p.l.c.'s motion to exclude the testimony of the Plaintiff's general causation expert, Dr. Jerald Cook; and b. their motion for summary judgment. I. Background The case arises from Plaintiff Harris' alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. The Plaintiff alleges that he performed cleanup work after the Deepwater Horizon oil spill from May 2010 through August 2010. He asserts that, as part of this work, he was exposed to "known-carcinogenic compounds via exposure to crude oil and the Corexit dispersants used." He also represents that this exposure has resulted in the following conditions: sinus problems, headaches, shortness of breath, and chest pain. Mr. Harris' case was originally part of the multidistrict litigation ("MDL") pending before Judge Carl J. Barbier. His case was severed from the MDL as one of the "B3" cases for plaintiffs who either opted out of, or were excluded from, the Deepwater Horizon Medical Benefits Class Action Settlement Agreement.8 Harris is a plaintiff who opted out of the settlement. After the Plaintiff's case was severed, it was reallocated to the Court. The Plaintiff asserts claims for general maritime negligence, negligence per se, and gross negligence against the defendants as a result of the oil spill and its cleanup. To demonstrate that exposure to crude oil, weathered oil, and dispersants can cause the symptoms Harris alleges in his complaint, he offers the testimony of Dr. Jerald Cook, an occupational and environmental physician. Dr. Cook is the Plaintiff's sole expert offering an opinion on general causation. In his report, Dr. Cook utilizes a "general causation approach to determine if a reported health complaint can be from the result of exposures sustained in performing oil spill cleanup work." Dr. Cook concludes that "general causation analysis indicates" that the following conditions "can occur in individuals exposed to crude oil, including weathered crude oil:" chronic rhinitis, chronic sinusitis, allergic rhinitis, chronic obstructive pulmonary disease ("COPD"), bronchitis, asthma, reactive airway disease, dermatitis, skin irritation, skin rash, skin itching, acute conjunctivitis, chronic conjunctivitis, and dry eye disease. The BP parties now move to exclude Dr. Cook's expert opinion, arguing that it is unreliable and unhelpful. The Defendants also move for summary judgment, asserting that if Dr. Cook's general causation opinion is excluded, the Plaintiff is unable to carry his burden on causation. The Plaintiff opposes both motions. II. Discussion A. Motion to Exclude The district court has considerable discretion to admit or exclude expert testimony under Federal Rule of Evidence 702. Rule 702 provides that an expert witness "qualified by knowledge, skill, experience, training, or education may testify" if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that Rule 702 "requires the district court to act as a gatekeeper to ensure that 'any and all scientific testimony or evidence admitted is not only relevant, but reliable.'" The Court's gatekeeping function consists of a two-part inquiry into reliability and relevance. First, the Court must determine whether the proffered expert testimony is reliable. Second, it must determine whether the expert's reasoning or methodology "fits" the facts of the case, and whether it will thereby assist the trier of fact to understand the evidence. Thus, in determining the admissibility of expert testimony, the district court must accord the proper deference to "the jury's role as the proper arbiter of disputes between conflicting opinions." Mr. Harris has the burden of "proving that the legal cause of his claimed injury or illness is exposure to oil or other chemicals used during the response." The Fifth Circuit has developed a "two-step process in examining the admissibility of causation evidence in toxic tort cases." First, plaintiff must show general causation, which means that he must show that "a substance is capable of causing a particular injury or condition in the general population." Second, if the Court concludes that plaintiff has produced admissible evidence on general causation, it must then determine whether plaintiff has shown specific causation, in other words, that "a substance caused that particular plaintiff's injury." If the Court finds that there is no admissible general causation evidence, there is "no need to consider" specific causation. At issue is whether the Plaintiff has produced admissible general causation evidence. To prove that exposure to the chemicals in oil and dispersants can cause the medical conditions Harris alleges, the Plaintiff offers the testimony of an environmental toxicologist, Dr. Cook. Dr. Cook asserts that his report is "based on the scientific methods used in the field of environmental toxicology." More specifically, he states that his "causation analysis regarding health effects of oil spill exposures draws on the process of evaluating epidemiology studies and the work from established expert groups similar to the Surgeon General's Advisory Committee to make a more likely than not conclusion." Judge Vance examines Dr. Cook's general causation report. As noted by another section of the Court, "Cook issued an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Dr. Cook's report is divided into five chapters. The first chapter outlines Dr. Cook's qualifications, which are not challenged in the case. The second chapter provides an overview of the Deepwater Horizon oil spill. The third chapter describes Dr. Cook's methodology. Chapter four of Dr. Cook's report details prior studies on the health effects associated with oil spills. Chapter five presents Dr. Cook's conclusions on general causation for four categories of health conditions: (1) respiratory conditions, (2) dermal conditions, (3) ocular conditions, and (4) cancers. Based on Dr. Cook's report, the Defendants argue that Harris is unable to prove general causation with relevant and reliable expert testimony. They contend that Dr. Cook's general causation report is unreliable because he failed to: (1) verify Harris's diagnoses; (2) follow the accepted methodology for analyzing epidemiology and adequately evaluate the scientific literature; and (3) identify the harmful level of exposure to any chemical that can cause any of plaintiff's alleged medical conditions. The Defendants further argue that even if Dr. Cook's report were reliable, it is unhelpful because it addresses "few if any" of Harris' medical complaints, and fails to specify what particular toxins can cause which particular conditions. They also note that another section of the Court has excluded Dr. Cook's report for similar reasons. Judge Vance finds that Dr. Cook's failure to identify the level of exposure to a relevant chemical that can cause the conditions asserted in the Plaintiff's complaint renders his opinion unreliable, unhelpful, and incapable of establishing general causation. Despite the acknowledged importance of determining the dose-response relationship, Dr. Cook's report fails to identify what level of exposure is necessary to be capable of producing the adverse health effects that he analyzes. Notably, neither Dr. Cook, nor the two studies, specify a base level of exposure that is necessary to cause rhinosinusitis. In light of Dr. Cook's failure to determine the relevant harmful level of exposure, Judge Vance finds that he lacks sufficient facts on both the composition of the substances at issue and their toxicity to provide a reliable opinion on general causation. She further notes that Dr. Cook's lack of even an estimate of what level of exposure is enough to be able to cause the Plaintiff's alleged symptoms means that he "lacks the scientific knowledge necessary to engage in the accepted methodology employed by toxicologists to establish causation in a toxic tort case." In addition to finding Dr. Cook's general causation analysis unreliable, Judge Vance also finds that Dr. Cook's report is unhelpful to the factfinder for many of the same reasons. She finds that Dr. Cook's opinion is unhelpful because of his inability to link any specific chemical that Harris was allegedly exposed to, at the level to which he was exposed, to the conditions that he alleges in his complaint. This lack of specificity is concerning given that Dr. Cook testified that there are "thousands of chemicals" in crude oil, and acknowledged that the different constituent chemicals in crude oil vary depending on location and the impact of the "weathering process." Given the concerns about the accuracy of this model from both the Plaintiff's expert as well as the investigators themselves, Judge Vance does not find that, in this context, Dr. Cook's conclusions were reliable, or that he is otherwise excused from determining a harmful level of exposure. Furthermore, consideration of the studies that Dr. Cook relies on does nothing to cure the lack of "fit" between his report and the facts of the case, specifically his failure to identify any chemical that is capable of causing any of the conditions that Harris alleges in his complaint. In sum, the Plaintiff, as the party offering the testimony of Dr. Cook, has failed to meet his burden of establishing the reliability and relevance of Dr. Cook's report. Given that Dr. Cook's report is unreliable and fails to provide the "minimal facts necessary" to establish general causation in the case, Judge Vance grants the Defendants' motion to exclude Dr. Cook's testimony. B. Motion for Summary Judgment In their motion for summary judgment, the Defendants contend that they are entitled to summary judgment "on two independent bases" because the Plaintiff has cannot establish either general or specific causation. Although the parties dispute whether the Plaintiff is required to present admissible expert testimony to establish specific causation, neither party contests that expert testimony is necessary to establish general causation. In the case, Judge Vance has excluded testimony from the Plaintiff's only expert offering an opinion on general causation. Because she excludes Dr. Cook's opinion on general causation, and the Plaintiff has produced no other admissible general causation evidence in the case, Judge Vance need not reach the question of specific causation. Given that Harris cannot prove a necessary element of his claims against the Defendants, his claims must be dismissed. Accordingly, she grants the Defendants' motion for summary judgment. III. Conclusion For the foregoing reasons, Judge Vance grants the BP parties' motion to exclude the testimony of Dr. Cook. She also grants their motion for summary judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's July 15, 2022 Order & Reasons is available at https://tinyurl.com/yrwd6z2c from Leagle.com. BP EXPLORATION: In Barksdale Suit, Court Excludes Cook Testimony ---------------------------------------------------------------- In the case, DONALD ANGELO BARKSDALE v. BP EXPLORATION & PRODUCTION, INC., ET AL. SECTION: "A" (2), Civil Action No. 17-3034 (E.D. La.), Judge Jay C. Zainey of the U.S. District Court for the Eastern District of Louisiana issued an order granting: (i) the Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and (ii) Motion for Summary Judgment, both filed by Defendants BP Exploration & Production, Inc., BP America Production Co., and BP p.l.c., and joined by Defendants Halliburton Energy Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and Transocean Offshore Deepwater Drilling, Inc. The following motions are before the Court: The Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff Barksdale opposes the motions. The motions, submitted for consideration on June 8, 2022, are before the Court on the briefs without oral argument. The case is a B3 lawsuit that was allotted to this section from Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon disaster that occurred in the Gulf of Mexico in 2010. The B3 pleading bundle includes personal injury claims due to oil or chemical exposure during the disaster response -- In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20, 2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021). B3 plaintiffs either opted out of the Medical Settlement or were not members of the settlement class. The Plaintiff in this B3 lawsuit, Barksdale, was employed in the Deepwater Horizon oil spill response effort. Barksdale claims that exposure to crude oil and chemical dispersants (the former being released by the oil spill itself and the latter being used in the cleanup process) caused the following injuries: shortness of breath, congestion, ears ringing, nausea, digestive problems, stomach cramps, dry eyes, headaches, muscle spasms, joint pain and stiffness, wheezing, cough, increased sputum, persistent cold, recurring skin dryness, fatigue and sinus problems. From the inception of the severed B3 cases, it has been understood that to prevail "B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." Because causation had proved to be the critical element in the BELO cases, it was predicted to be the "make-or-break" issue for many B3 cases as well. A B3 plaintiff must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the oil spill response. The issue of causation will require an individualized inquiry. The Plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population. Specific causation is whether a substance caused a particular individual's injury, i.e., the Plaintiff's injury. If his case fails at the first-step of producing admissible evidence as to general causation, then the issue of specific causation is rendered moot. Hundreds of B3 cases were reassigned from MDL 2179 to the judges of this district. It is beyond dispute that in each of those cases, the Plaintiff must prove both general and specific causation as those concepts are defined. The Plaintiff's will-call witness list identifies one expert medical doctor, Jerald Cook, M.D., who is identified as an expert witness regarding "causation." Dr. Cook has produced a report dated March 14, 2022, entitled Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers A Cause and Effect Analysis. The report is not unique to the case -- it has been described by another judge as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Presumably, the Plaintiff intends for Dr. Cook's testimony to establish both general causation and specific medical causation in the case. The instant motion in limine pertains to the Plaintiff's use of Dr. Cook's report, and the testimony that would derive from it at trial, as evidence of both general and specific causation. The Movants seek to exclude Dr. Cook's opinions on various grounds including the principles espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point out that two other judges in this district have evaluated Dr. Cook's medical causation report and have concluded that it should be excluded. If Dr. Cook's opinions are excluded from trial, then the Defendants argue that their motion for summary judgment must be granted because the Plaintiff will have no expert medical causation evidence, which would constitute a complete failure of proof on an essential element of the case. But even if the Court denies the motion in limine and allows Dr. Cook to testify at trial, the Defendants contend that the report does not provide evidence of specific causation vis à vis the Plaintiff, and the Plaintiff has identified no other expert who would provide specific causation evidence. Judge Zainey has carefully studied and considered the numerous decisions issued by the other judges of this district who have determined that Dr. Cook's opinions should be excluded. For the same reasons given by Judges Vance, Barbier, Morgan, and Ashe when they granted the Defendants' motion in limine directed at the same version of Dr. Cook's report that was produced in the case, he grants the Defendants' motion in limine. Consequently, the Defendants' motion for summary judgment will likewise be granted. Accordingly, Judge Zainey grants: a. the Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and b. their Motion for Summary Judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/2p8u6axe from Leagle.com. BP EXPLORATION: In Catchings Suit, Court Excludes Cook Testimony ---------------------------------------------------------------- In the case, DAWN DENIESE CATCHINGS v. BP EXPLORATION & PRODUCTION, INC., ET AL. SECTION: "A" (2), Civil Action No. 17-3124 (E.D. La.), Judge Jay C. Zainey of the U.S. District Court for the Eastern District of Louisiana issued an order granting: (i) the Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and (ii) Motion for Summary Judgment, both filed by Defendants BP Exploration & Production, Inc., BP America Production Co., and BP p.l.c., and joined by Defendants Halliburton Energy Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and Transocean Offshore Deepwater Drilling, Inc. The following motions are before the Court: The Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff Catchings, opposes the motions. The motions, submitted for consideration on June 22, 2022, are before the Court on the briefs without oral argument. The case is a B3 lawsuit that was allotted to this section from Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon disaster that occurred in the Gulf of Mexico in 2010. The B3 pleading bundle includes personal injury claims due to oil or chemical exposure during the disaster response -- In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20, 2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021). B3 plaintiffs either opted out of the Medical Settlement or were not members of the settlement class. The Plaintiff in this B3 lawsuit, Catchings, was employed in the Deepwater Horizon oil spill response effort. Catchings claims that exposure to crude oil and chemical dispersants (the former being released by the oil spill itself and the latter being used in the cleanup process) caused the following injuries: acute labyrinthitis, decreased sense of smell, facial pain or sinus pain, nasal congestion/discharge, nosebleed, throat irritation, vertigo/dizziness, abdominal cramps and pain, diarrhea, nausea, vomiting, chronic rash on hands and feet, skin blistering, boils, crusting, dryness/flaking, inflammation, redness or swelling, itching, lesion, peeling, scaling, welts, eye burning and irritation, fainting, headache, shortness of breath, and wheezing. From the inception of the severed B3 cases, it has been understood that to prevail "B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." Because causation had proved to be the critical element in the BELO cases, it was predicted to be the "make-or-break" issue for many B3 cases as well. A B3 plaintiff must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the oil spill response. The issue of causation will require an individualized inquiry. The Plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population. Specific causation is whether a substance caused a particular individual's injury, i.e., the Plaintiff's injury. If his case fails at the first-step of producing admissible evidence as to general causation, then the issue of specific causation is rendered moot. Hundreds of B3 cases were reassigned from MDL 2179 to the judges of this district. It is beyond dispute that in each of those cases, the Plaintiff must prove both general and specific causation as those concepts are defined. The Plaintiff's will-call witness list identifies one expert medical doctor, Jerald Cook, M.D., who is identified as an expert witness regarding "causation." Dr. Cook has produced a report dated March 14, 2022, entitled Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers A Cause and Effect Analysis. The report is not unique to the case -- it has been described by another judge as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Presumably, the Plaintiff intends for Dr. Cook's testimony to establish both general causation and specific medical causation in the case. The instant motion in limine pertains to the Plaintiff's use of Dr. Cook's report, and the testimony that would derive from it at trial, as evidence of both general and specific causation. The Movants seek to exclude Dr. Cook's opinions on various grounds including the principles espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point out that two other judges in this district have evaluated Dr. Cook's medical causation report and have concluded that it should be excluded. If Dr. Cook's opinions are excluded from trial, then the Defendants argue that their motion for summary judgment must be granted because the Plaintiff will have no expert medical causation evidence, which would constitute a complete failure of proof on an essential element of the case. But even if the Court denies the motion in limine and allows Dr. Cook to testify at trial, the Defendants contend that the report does not provide evidence of specific causation vis à vis the Plaintiff, and the Plaintiff has identified no other expert who would provide specific causation evidence. Judge Zainey has carefully studied and considered the numerous decisions issued by the other judges of this district who have determined that Dr. Cook's opinions should be excluded. For the same reasons given by Judges Vance, Barbier, Morgan, and Ashe when they granted the Defendants' motion in limine directed at the same version of Dr. Cook's report that was produced in the case, he grants the Defendants' motion in limine. Consequently, the Defendants' motion for summary judgment will likewise be granted. Accordingly, Judge Zainey grants: a. the Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and b. their Motion for Summary Judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/mry7astm from Leagle.com. BP EXPLORATION: In Fountain Suit, Court Excludes Cook's Testimony ----------------------------------------------------------------- In the case, REGINOLD FOUNTAIN v. BP EXPLORATION & PRODUCTION, INC., ET AL. SECTION: "A" (5), Civil Action No. 17-3204 (E.D. La.), Judge Jay C. Zainey of the U.S. District Court for the Eastern District of Louisiana issued an order granting: (i) the Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and (ii) Motion for Summary Judgment, both filed by Defendants BP Exploration & Production, Inc., BP America Production Co., and BP p.l.c., and joined by Defendants Halliburton Energy Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and Transocean Offshore Deepwater Drilling, Inc. The following motions are before the Court: The Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook and their Motion for Summary Judgment. Plaintiff Fountain opposes the motions. The motions, submitted for consideration on July 6, 2022, are before the Court on the briefs without oral argument. The case is a B3 lawsuit that was allotted to this section from Judge Barbier's MDL 2179 pertaining to the Deepwater Horizon disaster that occurred in the Gulf of Mexico in 2010. The B3 pleading bundle includes personal injury claims due to oil or chemical exposure during the disaster response -- In re Oil Spill by Oil Rig "Deepwater Horizon" in Gulf of Mexico, on April 20, 2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1, 2021). B3 plaintiffs either opted out of the Medical Settlement or were not members of the settlement class. The Plaintiff in this B3 lawsuit, Fountain, was employed in the Deepwater Horizon oil spill response effort. Fountain claims that exposure to crude oil and chemical dispersants (the former being released by the oil spill itself and the latter being used in the cleanup process) caused the following injuries: headaches, dizziness, fatigue shortness of breath, gastrointestinal issues, nausea, abdominal pain, rash, skin dryness/flaking, itching, peeling, rhinitis, chronic frontal sinusitis, decreased sense of smell, facial pain or sinus pain, nasal discharge, swollen congested inflamed mucosa, throat irritation, blurred vision, burning eyes, dry eyes, watery eyes, aching eyes, eyes made worse in light, and pain in extremities. From the inception of the severed B3 cases, it has been understood that to prevail "B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response." Because causation had proved to be the critical element in the BELO cases, it was predicted to be the "make-or-break" issue for many B3 cases as well. A B3 plaintiff must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the oil spill response. The issue of causation will require an individualized inquiry. The Plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population. Specific causation is whether a substance caused a particular individual's injury, i.e., the Plaintiff's injury. If his case fails at the first-step of producing admissible evidence as to general causation, then the issue of specific causation is rendered moot. Hundreds of B3 cases were reassigned from MDL 2179 to the judges of this district. It is beyond dispute that in each of those cases, the Plaintiff must prove both general and specific causation as those concepts are defined. The Plaintiff's will-call witness list identifies one expert medical doctor, Jerald Cook, M.D., who is identified as an expert witness regarding "causation." Dr. Cook has produced a report dated March 14, 2022, entitled Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers A Cause and Effect Analysis. The report is not unique to the case -- it has been described by another judge as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs." Presumably, the Plaintiff intends for Dr. Cook's testimony to establish both general causation and specific medical causation in the case. The instant motion in limine pertains to the Plaintiff's use of Dr. Cook's report, and the testimony that would derive from it at trial, as evidence of both general and specific causation. The Movants seek to exclude Dr. Cook's opinions on various grounds including the principles espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Defendants point out that two other judges in this district have evaluated Dr. Cook's medical causation report and have concluded that it should be excluded. If Dr. Cook's opinions are excluded from trial, then the Defendants argue that their motion for summary judgment must be granted because the Plaintiff will have no expert medical causation evidence, which would constitute a complete failure of proof on an essential element of the case. But even if the Court denies the motion in limine and allows Dr. Cook to testify at trial, the Defendants contend that the report does not provide evidence of specific causation vis à vis the Plaintiff, and the Plaintiff has identified no other expert who would provide specific causation evidence. Judge Zainey has carefully studied and considered the numerous decisions issued by the other judges of this district who have determined that Dr. Cook's opinions should be excluded. For the same reasons given by Judges Vance, Barbier, Morgan, and Ashe when they granted the Defendants' motion in limine directed at the same version of Dr. Cook's report that was produced in the case, he grants the Defendants' motion in limine. Consequently, the Defendants' motion for summary judgment will likewise be granted. Accordingly, Judge Zainey grants: a. the Defendants' Motion in Limine to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook; and b. their Motion for Summary Judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/82amjh5e from Leagle.com. CALIFORNIA TRANSIT: Denial of Arbitration in Evenskaas Suit Flipped ------------------------------------------------------------------- In the case, DAVID EVENSKAAS, Plaintiff and Respondent v. CALIFORNIA TRANSIT, INC., et al., Defendants and Appellants, Case No. B308354 (Cal. App.), the Court of Appeals of California for the Second District, Division Seven, reverses the trial court's order denying the California Transit Defendants' motion to compel arbitration. I. Introduction The Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. Section 12101, et seq.) requires any public entity that operates a public transportation system to provide certain paratransit services to individuals with disabilities. Access Incorporated Services (not a party to this action) is the public entity that administers paratransit services required by the ADA in Los Angeles County. Access, in turn, contracts with California Transit, Inc. to provide those paratransit services in parts of the county. David Evenskaas worked as a driver for California Transit. After California Transit terminated his employment, Evenskaas filed the wage and hour class action against California Transit; its owner, Timmy Mardirossian; and the company that administered California Transit's payroll, Personnel Staffing Group, LLC (collectively, the California Transit Defendants). Because Evenskaas signed an arbitration agreement, in which he agreed to arbitrate all claims arising from his employment and waived his right to seek class-wide relief, the California Transit Defendants filed a motion to compel arbitration. The trial court denied the motion. The court ruled California law, rather than the Federal Arbitration Act (FAA) (9 U.S.C. Section 1 et seq.), applied to the agreement because the agreement did not involve interstate commerce. It further ruled that, under the California Supreme Court's decision in Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry), Evenskaas' waiver of his right to bring class action claims was unenforceable. The California Transit Defendants appeal, contending the FAA applies to the arbitration agreement. They are correct. Because the paratransit services California Transit hired Evenskaas to provide involve interstate commerce for purposes of the FAA, the FAA applies to the arbitration agreement and preempts the Gentry rule that certain class action waivers in employment arbitration agreements are unenforceable. Therefore, the Court of Appeals reverses. II. Background California Transit employed Evenskaas as a driver for its paratransit service vehicles from November 2017 to August 2018. In May 2020, Evenskaas filed a class action against the California Transit Defendants on behalf of himself and other drivers, asserting various wage and hour claims. The California Transit Defendants filed a motion to compel Evenskaas to arbitrate his individual claims and to dismiss his class claims. The Defendants submitted an arbitration agreement Evenskaas signed in November 2017 that "covered all claims, controversies or disputes arising out of employment, including, but not limited to wages, compensation, benefits, and violation of any federal, state and city or county laws, statutes, regulations or ordinances." The California Transit Defendants contended the FAA applied to the arbitration agreement. They argued the agreement involved interstate commerce because California Transit provided "ADA-compliant paratransit services" and Evenskaas "performed trips for passengers with disabilities." They also argued the court should dismiss Evenskaas' claims for class-wide relief because the FAA preempts the California Supreme Court's decision in Gentry, supra, 42 Cal.4th 443 that certain class action waivers in employment arbitration agreements are unenforceable. Mr. Evenskaas contended the FAA did not apply. He argued the arbitration agreement did not involve interstate commerce because California Transit provided paratransit services only in Los Angeles County and never outside California. He also argued the class action waiver was unenforceable under Gentry. In reply the Defendants argued the class action waiver was enforceable under Gentry even if the FAA did not apply. They conceded, however, that if the class action waiver was unenforceable, the entire arbitration agreement was unenforceable because the waiver was "an inextricable and material aspect of the" agreement. The trial court denied the motion, largely agreeing with Evenskaas. The court ruled the FAA did not apply to the arbitration agreement because the California Transit Defendants failed to show that any passengers who used their services were interstate passengers and therefore only "intrastate activities were involved." The court ruled that under Gentry the class action waiver was unenforceable because a class action would be more effective than individual claims in "permitting the California Transit employees to enforce their statutory rights." Finally, in light of the Defendants' concession the entire arbitration agreement was unenforceable if the class action waiver was unenforceable, the court denied the motion to compel arbitration in its entirety. The California Transit Defendants timely appealed. III. Discussion The California Transit Defendants' primary argument is that, because California Transit provides paratransit services required by federal law and "subject to federal control and regulation," the arbitration agreement between Evenskaas and California Transit involves interstate commerce. Evenskaas argues the trial court correctly ruled the Defendants failed to show the agreement involved interstate commerce because California Transit provided paratransit services only within Los Angeles County. The Court of Appeals holds that the law and the facts support the Defendants. It finds that the paratransit services provided by California Transit and Evenskaas -- the same ones mandated by the ADA -- involve interstate commerce. Other factors show the paratransit services provided by California Transit involve interstate commerce. First, transportation is an inherently commercial activity. Second, although the California Transit Defendants provided limited evidence of where their drivers picked up and dropped off the majority of their passengers, there was at least some evidence their paratransit services facilitated economic activity by passengers. In sum, the California Transit Defendants presented undisputed evidence that California Transit provides paratransit services mandated by the ADA, that Evenskaas was hired to and did provide those services, and that the paratransit services facilitated further commercial activity by the passengers who used the services. Lastly, the trial court ruled that under the California Supreme Court's decision in Gentry, the class action waiver was unenforceable. The California Transit Defendants argue the FAA preempts the Gentry rule governing when class action waivers in employment arbitration agreements are unenforceable. The Court of Appeals holds that they are correct again. Evenskaas does not dispute the FAA preempts the Gentry rule, nor does he argue the arbitration agreement or his class action waiver is otherwise unenforceable. IV. Disposition For these reasons, the Court of Appeals reverses the order denying the California Transit Defendants' motion to compel arbitration. It directs the trial court to enter a new order granting the motion and dismissing Evenskaas' class claims. It denies the California Transit Defendants' request for judicial notice. The California Transit Defendants are to recover their costs on appeal. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/ms2m6ww9 from Leagle.com. Dunn DeSantis Walt & Kendrick, LLP, Kevin V. DeSantis -- kdesantis@ddwklaw.com -- and Bradley Lebow -- blebow@ddwklaw.com -- for the Defendants and Appellants. Kabateck LLP, Brian S. Kabateck -- bsk@kbklawyers.com -- Anastasia K. Mazzella -- am@kbklawyers.com -- Shant A. Karnikian -- sk@kbklawyers.com -- and Jerusalem F. Beligan -- jfb@kbklawyers.com; Law Offices of Eric A. Boyajian, APC, Eric A. Boyajian and Amaras Zagarian for the Plaintiff and Respondent. CASELLA WASTE: Bid to Dismiss Rodney's First Amended Suit Granted ----------------------------------------------------------------- In the case, JOSEPH WILSON RODNEY, JR., ROSEMARIE SIBLEY, and KENNETH MESSOM, Plaintiffs v. CASELLA WASTE SYSTEMS, INC., Defendant, Case No. 2:21-cv-196 (D. Vt.), Judge Christina Reiss of the U.S. District Court for the District of Vermont grants the Defendant's Motion to Dismiss the Plaintiffs' First Amended Complaint. I. Introduction Plaintiffs Joseph Wilson Rodney, Jr.; Rosemarie Sibley; and Kenneth Messom bring the action individually and on behalf of all current and former non-exempt waste disposal drivers who have worked for the Defendant. They allege a collective action pursuant to the Fair Labor Standards Act (the "FLSA") and class action claims pursuant to state law under Fed. R. Civ. P. 23. The Plaintiffs filed their original Complaint on Aug. 17, 2021, which the Defendant moved to dismiss on Sept. 20, 2021. While the Defendant's first motion to dismiss was pending, the Plaintiffs filed their First Amended Complaint (the "FAC") on Oct. 12, 2021. The FAC alleges: failure to pay wages and overtime under the FLSA (Count I), failure to pay wages in accordance with Maine law (Count II), failure to pay wages in accordance with Massachusetts law (Count III), and failure to pay wages in accordance with Vermont law (Count IV). The Defendant seeks dismissal of the FAC for failure to state a claim. On Nov. 24, 2021, the Plaintiffs opposed the motion, and on Dec. 7, 2021, the Defendant replied. The Court held oral argument on May 2, 2022, at which time it took the pending motion under advisement. II. Background The Defendant "is a full-service solid waste company providing waste collection and disposal services to commercial, industrial, and residential customers in the states of Vermont, Massachusetts, Maine, New Hampshire, Pennsylvania, and New York." It "operates through multiple affiliated and subsidiary entities that are owned and operated by the same core individuals and out of the same principal office," which "subjects the Plaintiffs to the same management regardless of the name of the subsidiary entity on their paychecks," and "maintains centralized control of all labor relations determinations that impact the Plaintiffs." The Defendant and its subsidiaries and affiliates allegedly "perform the same waste disposal services, utilize the same equipment, and operate under the Casella business name." Plaintiff Rodney worked for the Defendant through its subsidiary Pine Tree Waste, Inc. as a waste disposal driver in West Bath, Maine and Scarborough, Maine from Aug. 1, 2018 through Dec. 1, 2019. Plaintiff Sibley worked for the Defendant as a waste disposal driver in Williston, Vermont from July 1, 2018 through Aug. 2021. Plaintiff Messom worked for the Defendant as a waste disposal driver in Auburn, Massachusetts from January 2019 through June 2019. Although their "exact job titles may differ," the Defendant's waste disposal drivers were allegedly "subjected to the same or similar illegal pay practices for similar work throughout the United States." The Defendant "usually scheduled" waste disposal drivers "to work five to six days and 45-60 hours per week." The Plaintiffs "did usually work that many hours on-the-clock per week," which rendered "nearly all of the off-the-clock time that they performed for the Defendant," and which was not paid, "time in excess" of their scheduled time. Accordingly, the Plaintiffs assert that while they "routinely worked (and continue to work) in excess of 40 hours per workweek," the Defendant "knowingly and deliberately failed to compensate them for all hours worked." The Plaintiffs point to several employment practices which they claim are unlawful under the FLSA and/or state law. For example, they contend the Defendant "automatically deducts a 30-minute meal-period" from each workday. "Due to the time pressures involved in completing their routes to pick up waste, transporting the waste to a landfill, and then waiting in line at the dump for their turn most drivers work through their meal break every day." Certain unnamed Plaintiffs allegedly "complained during morning meetings to their supervisors" about the auto-deduct policy but "were told that the 30 minutes had to be deducted regardless of whether they actually took a meal break." Some Casella supervisors instructed the Plaintiffs to eat while waiting in line at a landfill while others allegedly told the Plaintiffs "to work through their meal break so that they could complete their work." The Defendant is therefore alleged to have impermissibly deducted a minimum of 2.5 "on-the-clock" hours from each five-day workweek and three hours from each six-day workweek, resulting in the Plaintiffs' overtime hours being paid at a deflated rate. The only alleged example of this practice is that the "Plaintiff Sibley worked 52.53 hours during the week of Aug. 1, 2021, to Aug. 7, 2021, but -- due to Casella's meal break deduction -- was only paid for 50.03 hours of work." The Plaintiffs do not further allege, however, that Plaintiff Sibley worked through any of her meal breaks in that week. In addition, the Defendant allegedly fails to compensate the Plaintiffs "for all hours spent performing mandatory pre-trip and post-trip vehicle inspections" that occur at the beginning and end of each shift. This practice results in the "failure to properly calculate the Plaintiffs' overtime under the FLSA and state statutes in Maine, Massachusetts, and Vermont." Finally, the Defendant also pays the Plaintiffs non-discretionary job bonuses but fails to include these non-discretionary bonuses in the Plaintiffs' regular rates of pay." The Defendant's practice "causes a miscalculation of the regular rate of pay for purposes of overtime compensation." The Defendant's "failure to compensate the Plaintiffs for all of their hours worked, including overtime hours at a rate of time and one-half their regular rate, violated (and continues to violate) the FLSA and relevant state law(s)." "By way of example, Plaintiff Sibley received a safety bonus for the pay period of March 18, 2021, through March 24, 2021, in the amount of $212.44 because she did not have any moving violations during the preceding four-month period; however, the non-discretionary bonus was not included in her regular rate and her overtime was improperly calculated and paid based only off of her hourly pay rate." The Plaintiffs allege that the Defendant "knew or recklessly disregarded" that it was miscalculating the Plaintiffs' regular rates of pay and not paying earned overtime pay, which renders its actions "willful violations of the FLSA that were not made in good faith." Because the Defendant did not pay the Plaintiffs "for all straight-time hours worked, the Defendant's pay policies and practices also violate the state laws of Maine, Massachusetts, and Vermont." The Plaintiffs assert they do not perform work "that meets the definition of exempt work" under the FLSA or the applicable state statutes. III. Analysis A. Whether Plaintiffs Plausibly Allege an FLSA Overtime Claim In the FAC, the Plaintiffs allege that the Defendant "usually scheduled" its waste disposal drivers to work 45-60 hours per week and thus the Plaintiffs "did usually work that many hours on-the clock per week." Judge Reiss opines that these contentions regarding how waste disposal drivers were "usually scheduled" and how the Plaintiffs "usually worked," standing alone, are insufficient to state a claim for relief. The FAC is similarly devoid of specific factual allegations pertaining to each of the Named Plaintiffs, and it provides no allegations specific to Plaintiff Messom. The Plaintiffs' pleading style, which is akin to group pleading, improperly relies on generalized allegations regarding all waste disposal drivers employed by Defendant over a number of years rather than the Named Plaintiffs. The FAC remains too generalized to support an FLSA claim by any of the Named Plaintiffs. For the foregoing reasons, Judge Reiss grants the Defendant's motion to dismiss Count I of the FAC. B. Whether the Court Should Exercise Supplemental Jurisdiction Over Plaintiffs' State Law Claims The Defendant asserts that because the Plaintiffs' FLSA claim warrants dismissal, the Court should decline to exercise supplemental jurisdiction over the Plaintiffs' remaining state law claims in Counts II-IV. The Plaintiffs respond in a footnote that the sufficiency of their allegations renders this issue moot. As Judge Reiss has dismissed the Plaintiffs' only federal claim, she declines to exercise supplemental jurisdiction over their remaining state law claims. C. Leave to Amend. Pursuant to Fed R. Civ. P. 15(a), courts "should freely give leave" to amend a complaint "when justice so requires." However, "leave may be denied 'for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.'" Because at this juncture she cannot find that any claims asserted by the Plaintiffs would be futile, because the Defendant does not oppose leave to amend, and because there is no other ground on which to deny leave to amend, Judge Reiss grants the Plaintiffs leave to amend within 20 days of the date of the Opinion and Order consistent with the Federal Rules of Civil Procedure and the Court's Local Rules. IV. Conclusion For the foregoing reasons, Judge Reiss grants the Defendant's motion to dismiss. She grants the Plaintiffs leave to amend within 20 days of the date of her Opinion and Order consistent with the Federal Rules of Civil Procedure and the Court's Local Rules. A full-text copy of the Court's July 15, 2022 Opinion & Order is available at https://tinyurl.com/2hk5bc9s from Leagle.com. CASINO QUEEN: Bids to Amend Scheduling Order in Hensiek Suit Denied ------------------------------------------------------------------- In the case, TOM HENSIEK, et al., Plaintiffs v. BD. OF DIRECTORS OF CASINO QUEEN HOLDING CO., INC., et al., Defendants. BD. OF DIRECTORS OF CASINO QUEEN HOLDING CO., INC., et al., Crossclaim/Third-Party Plaintiffs v. CHARLES BIDWILL, III, et al., Crossclaim/Third-Party Defendants. CHARLES BIDWILL, III, TIMOTHY J RAND, Defendants/Counterclaimants, Crossclaim/Third Party Plaintiffs v. TOM HENSIEK, et al., Counterclaim/Crossclaim/Third-Party Defendants. JAMES G. KOMAN, Crossclaim Plaintiff v. BD. OF DIRECTORS OF CASINO QUEEN HOLDING CO., INC., et al., Crossclaim Defendants, Case No. 20-cv-377-DWD (S.D. Ill.), Judge David W. Dugan of the U.S. District Court for the Southern District of Illinois issued a Memorandum and Order denying without prejudice: a. the Plaintiffs' Motion to Compel Production of Documents from Defendants the Board of Directors of Casino Queen Holding Co., Inc., the Administrative Committee of the Casino Queen Employee Stock Ownership Plan, Robert Barrows, Jeffrey Watson, Charles Bidwill, III, James G. Koman, and Timothy J. Rand; b. Defendants Patricia M. Bidwill and Brian R. Bidwill's motion to amend the scheduling order and to join in the Moving Defendants' Motion; and c. the Motion to Amend Scheduling Order brought by Moving Defendants Board of Directors of Casino Queen Holding Co., Inc., the Administrative Committee of the Casino Queen Employee Stock Ownership Plan, the Co-Trustees of the Casino Queen Employee Stock Ownership Plan, Jeffrey Watson, Robert Barrows, James G. Koman, Charles Bidwill, III, and Timothy J. Rand. I. Background On April 27, 2020, the Plaintiffs filed the purported class action asserting fiduciary and nonfiduciary claims under Section 502(a)(2) and 503(a)(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. Section 1132(a)(2) and (a)(3) related to the Casino Queen Employee Stock Ownership Plan. On Jan. 25, 2021, the undersigned denied a motion to compel arbitration filed by Defendants Charles Bidwill, III, Timothy J Rand, James G Koman, and joined by Defendants Watson, Barrows, the Board of Directors of Casino Queen Holding Co., Inc., and the Administrative Committee of Casino Queen Employee Stock Ownership Plan. The Defendants appealed, and the matter was stayed during the pendency of the appeal. On Oct. 15, 2021, the appeal was voluntarily dismissed, and the stay of proceedings was lifted. On Feb. 10, 2022, the Court entered a scheduling and discovery order, setting the following deadlines: Discovery due by 11/1/2022; Dispositive Motions due by 6/30/2023; and Motion for Class Certification due by 9/30/2022. Thereafter, the Plaintiffs filed an Amended Complaint adding multiple nonfiduciary parties. In turn, many of the Defendants filed counter, cross, and third-party claims. As of the date of the Order, some of these new parties have not been served, and many of the new claims have not yet been answered. Moreover, recently at least five motions have been filed directed at the pleadings. On July 14, 2022, the Court held a hearing on the Motions. II. Discussion A. Motion to Amend Scheduling Order The Moving Defendants ask the Court to bifurcate the case into two proposed phases: a. In Phase I, the parties would conduct fact and expert discovery and try all aspects of all claims, counterclaims, cross claims, and third party claims, except the narrow issue of whether equitable relief is available against nonfiduciary defendants alleged to have knowingly participated in a nonexempt transaction in violation of section 1132(a)(3). b. In Phase II, any defendants found to have knowingly participated in a breach in violation of section 1132(a)(3) would engage in discovery and, if necessary, an evidentiary hearing to establish whether and to what extent any equitable remedies are available against them. To facilitate bifurcation, the Defendants would stipulate that, during Phase I summary judgment and/or trial, they will reserve any defenses related to available equitable remedies for Phase II. The Defendants have two primary reasons for seeking bifurcation: tT alleviate an alleged burden on the Court and to avoid extensive tracing discovery. They argue that the equitable remedies issue is the last issue in a multi-step liability determination and is not relevant to any of the numerous other claims brought in the matter. They further contend that without bifurcation they will have to undergo "a sprawling inquiry into ten years'-worth of personal financial information", and the Court will subsequently need to devote a large amount of resources to resolve the issue. The Plaintiffs are amenable to a bifurcated trial but oppose bifurcating discovery, arguing that a discovery delay would cause irreversible prejudice to them. Judge Dugan holds that the potential harms of bifurcated discovery outweigh the potential prejudice to the Defendants. Moreover, issues related to the scope of discovery can be addressed through the Court's discovery procedures and at this time there is no reason to believe that Court could not implement appropriate instructions to mitigate potential prejudice that may arise during pre-trial proceedings or at trial. While the Plaintiffs are amenable to bifurcating the limited issue of equitable relief against nonfiduciary defendants at trial, Judge Dugan finds this request to be premature considering the current posture of the case. Specifically, a handful of alleged nonfiduciary defendants have not yet been served. Moreover, many of the parties have recently filed motions directed at the pleadings. The resolution of these pending issues may impact the scope of these proceedings. The Motions to Amend the Scheduling Order are therefore denied without prejudice. The parties are granted leave to seek bifurcation of the narrow issue of equitable relief against nonfiduciary defendants once the new defendants have been served and the motions directed at the pleadings have been ruled on. B. Motion to Compel By their Motion to Compel, the Plaintiffs seek to compel the production of multiple documents related to the Plaintiffs' Third Set of Requests for Production directed at Defendants the Board of Directors of Casino Queen Holding Co., Inc., the Administrative Committee of the Casino Queen Employee Stock Ownership Plan, Robert Barrows, Jeffrey Watson, Charles Bidwill, III, James G. Koman, and Timothy J. Rand. The Defendants pose various objections to these requests, including that some of the requested documents are related to the equitable remedy of tracing, which Defendants sought to bifurcate as further detailed above. In light of his denial of the Defendants' Motions to Amend, and for the reasons discussed at the July 14th hearing, Judge Dugan directs the parties to Meet, Confer, and Report. Specifically, the parties are ordered to meet and conduct a discovery conference by Aug. 15, 2022 to discuss unresolved discovery issues. By Aug. 29, 2022 the parties will submit a joint written discovery report to the Court at DWDpd@ilsd.uscourts.gov. The report will by signed by all parties, and detail the date and duration of, and the medium used for the discovery conference. The report will further identify and describe: (1) all discovery areas or issues discussed by the parties during the discovery conference; (2) the discovery areas or issues resolved; and (3) the specific discovery or issues not resolved or still in dispute. For any issues not resolved or still in dispute, the parties are directed to specify in a clear and concise fashion the exact basis or bases for the objection to the discovery request and the proponent's response thereto. Additionally, the parties will include copies of the complete discovery request at issue and the corresponding answer or objection. The parties are also reminded that the Court must presumptively award expenses, including attorney's fees, to the prevailing party of discovery disputes. Judge Dugan is also concerned by the various allegations of the appropriateness of privilege logs. The Federal Rules of Civil Procedure are specific and encompassing and, if studied and applied, more often than not supply the solution to discovery related conflicts without the Court's involvement. The parties would do well to review Rules 26 and 37 prior to seeking judicial intervention on matters specifically covered or required by the Federal Rules. C. Other Pending Issues a. Discovery and Dispositive Motion Deadlines The Plaintiffs' Deadline for filing a Motion for Class Certification remains set for 9/30/2022. Once class certification is decided, the Court will schedule an additional status conference with the parties to address entering a new discovery and scheduling order. Accordingly, the following current deadlines in the Court's Scheduling Order are vacated: Close of Fact Discovery: 11/1/2022; and Dispositive Motions due by 6/30/2023. These deadlines will be reset after class certification is decided. At the status conference, the Court will also determine whether a bifurcated briefing schedule for dispositive motions may be appropriate in light of the parties' representations concerning the limited issue of equitable relief against nonfiduciary defendants alleged to have knowingly participated in a nonexempt transaction in violation of section 1132(a)(3). Having vacated the discovery deadline, Judge Dugan observes that this directive moots some, but not all, of the issues raised in the recently filed Joint Motion to Amend Scheduling Order to Extend Discovery Deadlines for a Protective Order, to Shorten Time to Respond, and For an Expedited Hearing filed by Defendants Charles Bidwill, III, Timothy J. Rand, James G. Koman, Jeffrey Watson, Robert Barrows, the Board of Directors of Casino Queen Holding Company, Inc., and the Administrative Committee of the Casino Queen Employee Stock Ownership Plan. In the interests of judicial efficiency, he denies, without prejudice, the Joint Motion. To the extent any of the unresolved issues in that Motion relate to the Plaintiff's Motion to Compel, the parties are directed to discuss these issues at their discovery conference. Should any issues remain unresolved after that discovery conference, the parties will include those specific unresolved issues in their joint discovery report submitted to the Court. However, if the parties require any issues in the Motion to be ruled on prior to the parties' discovery conference, Defendants will file a new motion highlighting those specific issues for the Court's consideration. b. Plaintiff's Motion for Extension of Deadline to Serve Amended Complaint Judge Dugan also grants the Plaintiffs' Motion for Extension of Deadline to Serve Amended Complaint and Summonses on New Defendants. He explains that Fed. R. Civ. P. 4(m) permits the Court to extend the time for service for an appropriate period and for good cause shown. He finds it appropriate to exercise discretion, and for good cause shown, the Plaintiffs are granted leave under Fed. R. Civ. P. 4(m) to serve the New Defendants by Sept. 12, 2022. c. Corrections to the Docket Upon review of the docket, it appears Defendant Charles Bidwill, III's name is misspelled on the docket sheet. The Clerk of Court is directed to change Charles Bidwell, III to Charles Bidwill, III on the docket sheet. Also, Defendants John & Jane Does 1-20 do not appear in the First Amended Complaint. The Clerk of Court is therefore DIRECTED to terminate Defendants John & Jane Does 1-20 from the docket sheet. d. Clarification on Party Defendants The First Amended Complaint added as a Defendant the Co-Trustees of the Casino Queen Employee Stock Ownership Plan. Judge Dugan acknowledges that Defendants Jeffrey Watson and Robert Barrows have previously been referred to as the ESOP Co-Trustees. However, Defendants Watson and Barrows also remain as named Defendants in the First Amended Complaint separate from the newly named Co-Trustees. Accordingly, the Plaintiffs are directed to file a status report with the Court by Aug. 15, 2022 clarifying the identities of the Co-Trustees of the Casino Queen Employee Stock Ownership Plan as named Defendants in the First Amended Complaint. e. Case Caption Finally, to assist with the efficiency and organization of these claims, Judge Dugan finds it appropriate to use an abbreviated case caption. Accordingly, all future filings should use the abbreviated case style provided. A copy of the abbreviated case caption will be attached as an exhibit to the Order for the convenience of the parties. Moreover, if a filing only pertains to one specific crossclaim, third-party action, or counterclaim, the parties are granted leave to use a further abbreviated case caption to refer only to the relevant action. Notwithstanding the foregoing, in each document filed with the Court, the counsel should use the parties' actual names or their most descriptive designations to refer to the parties in the introduction or heading of each document. Once the moving or responding parties are clearly identified, the parties may then use more generalized terms to refer to the parties as may be appropriate. III. Conclusion Having considered the briefing and arguments, and for the reasons stated and on the record at the hearing, Judge Dugan denies without prejudice the Motions to Amend Scheduling Order and the Motion to Compel. He directs the parties to Meet, Confer, and Report as further detailed in his Order. A full-text copy of the Court's July 15, 2022 Memorandum & Order is available at https://tinyurl.com/2zrm8k6c from Leagle.com. COLORADO: Seeks Extension of Time to Respond to Class Cert Bid -------------------------------------------------------------- In the class action lawsuit captioned as DION ANTHONY v. COLORADO DEPARTMENT OF CORRECTIONS COLORADO STATE PENITENTIARY, and RAEANNE WILL, Case No. 1:20-cv-01484-DDD-SKC (D. Colo.), the Defendants Colorado Department of Corrections, Colorado State Penitentiary, and Raeanne Will file motion for extension of time to respond to Plaintiff's motion to sanction them and class certification motion. On June 16, 2022, the Plaintiff filed two pleadings: "Motion to Sanction Defendants" and "Class Certification Motion." The Defendants request an extension of time of until 30 days after the Court issues a ruling on the Motion to Dismiss to respond to the June 16 Motions. The Plaintiff is a pro se prisoner presently incarcerated at Sterling Correctional Facility (CSP), who has brought this lawsuit against the Colorado Department of Corrections (CDOC), Colorado State Penitentiary (CSP), and Raeanne Will. Colorado State Penitentiary (commonly abbreviated CSP) is a Level V maximum security prison in the U.S. state of Colorado. The The Colorado Department of Corrections is the principal department of the Colorado state government that operates the state prisons. A copy of the Defendant's motion dated July 7, 2022 is available from PacerMonitor.com at https://bit.ly/3voaor5 at no extra charge.[CC] The Defendants are represented by: Rebekah Ryan, Esq. ASSISTANT ATTORNEY GENERAL CIVIL LITIGATION & EMPLOYMENT SECTION 1300 Broadway, Tenth Floor Denver, CO 80203 Telephone: (720) 508-6623 Facsimile: (720) 508-6032 E-mail: Rebekah.Ryan@coag.gov CREDIT SUISSE: Scheduling Order Entered in Antitrust Litigation --------------------------------------------------------------- In the class action lawsuit captioned as FTC Capital GMBH et al v. Credit Suisse Group AG, et al., Case No. :18-cv-01540-NRB (S.D.N.Y.), the Hon. Judge Naomi Reice Buchwald entered an scheduling order as follows: 1. Deadline for the Plaintiffs to Aug. 1, 2022 provide the Defendants with a copy of any proposed amended complaint that they intend to file as of right or seek leave to file: 2. Deadline for Defendants to Aug. 1, 2022 propose custodians and search terms for their own documents responsive to Discovery Requests: 3. Deadline to amend for Plaintiffs Aug. 16, 2022 with amendment as of right or to file pre-motion letters seeking leave to amend, including to add or drop parties. The Order relates to all cases in RE: LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST LITIGATION. Credit Suisse is a global investment bank and financial services firm founded and based in Switzerland. A copy of the Court's order dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3OnayFO at no extra charge.[CC] DAYBREAK SOLAR: Cunningham Suit Moved to Northern District of Texas ------------------------------------------------------------------- Judge Max O. Cogburn, Jr., of the U.S. District Court for the Western District of North Carolina, Charlotte Division, transfers the case, CRAIG CUNNINGHAM, Plaintiff v. DAYBREAK SOLAR POWER, LLC, Defendant, Docket No. 3:22-cv-9-MOC-DCK (W.D.N.C.), to the U.S. District Court for the Northern District of Texas. I. Background The matter is before the Court on the Defendant's Motion to Dismiss the Complaint. Plaintiff Cunningham filed a complaint with the Court on Jan. 7, 2022, under the Telephone Consumer Protection Act ("TCPA") and the North Carolina analogue to the federal law, the North Carolina Telephone Solicitations Act ("NCTSA") against Defendant Daybreak. The Plaintiff alleges that he received a phone call on Dec. 23, 2021 at his personal phone number. He alleges that there was a "pop" sound at the beginning of the call, after which a voice said, "Hi, this is Brian Lee calling on behalf of The-Solar-Project.com." The Plaintiff then alleges that someone named Yesenia continued the conversation with him. He alleges that Yesenia is an employee of the Defendant and that she asked him questions about his marital status and his credit score. Then, the Plaintiff alleges that after he had "multiple calls with Daybreak employees" to ascertain the origin of the solicitation call, the Defendant or its agents "claimed that the Plaintiff must have gone on 'some website' but were unable or unwilling" to point to a specific website that the Plaintiff visited. The Plaintiff contends that other individuals have complained about receiving "telemarketing" calls from the Defendant, citing a single Better Business Bureau ("BBB") posting about the company and a single review from Glassdoor (an employment website) posting supposedly written by a prior employee as evidence of his claim. Finally, the Plaintiff argues that he did not provide "prior express written consent to receive the calls" and that he and "other call recipients" were harmed by the call because they were (1) "temporarily deprived of legitimate use of their phones" while "their phone lines were tied up during the telemarketing calls" and (2) "their privacy was improperly invaded." The Defendant has filed a motion to dismiss pursuant to the Federal Rules of Civil Procedure, specifically citing Rule 12(b)(3) for improper venue, Rule 12(b)(6) for failure to state a plausible claim for relief, and 12(b)(1) for lack of federal subject matter jurisdiction due to the Plaintiff's failure to plead facts demonstrating standing under Article III of the United States Constitution. When considering a motion to dismiss that arises under concurrent provisions of the Federal Rules of Civil Procedure, courts first consider venue and, if found improper, will then leave the other elements of the motion to be decided on the merits in the court with proper venue. II. Discussion Rule 12(b)(3) allows courts to dismiss an action for improper venue. Alternatively, a court has discretion to transfer a case brought before it in an improper venue to a proper one under 28 U.S.C. Section 1406(a) and 28 U.S.C. Section 1404(a) "if it be in the interest of justice." Moreover, a court "may sua sponte consider transfer" even if it has not been specifically raised by the parties. Transfer is allowable "for the convenience of parties and witnesses or in the interest of justice" to "any other district or division where it might have been brought or to any district or division to which all parties have consented." In Scholl v. Sagon RV Supercenter, LLC, 249 F.R.D. 230, 239 (W.D.N.C. 2008), in deciding whether to transfer or dismiss a case for improper venue, a court balances certain factors to find if the transfer is "in the interest of justice." Those factors include: (1) plaintiff's initial choice of forum; (2) the residence of the parties; (3) the relative ease of access of proof; (4) the availability of compulsory process for attendance of witnesses and the costs of obtaining attendance of willing witnesses; (5) the possibility of a jury view; (6) the enforceability of a judgment, if obtained; (7) the relative advantages and obstacles to a fair trial;(8) other practical problems that make a trial easy, expeditious, and inexpensive; (9) the administrative difficulties of court congestion; (10) the interest in having localized controversies settled at home; and (11) the avoidance of unnecessary problems with conflict of laws. A court must balance these factors and make the assessment qualitatively, not merely quantitatively. If the court determines that it is the improper venue, it will then select a forum that satisfies the test under 28 U.S.C. Section 1391(b) for proper venue and, in the court's view, is the best option under the factors set forth. a. Rule 12(b)(3) Analysis The Defendant argues that the Western District of North Carolina is an improper venue for this claim, and therefore must be dismissed to be re-filed elsewhere. Judge Cogburn agrees with the Defendant that the Court is an improper venue, but rather than dismiss the action, he exercises discretion to transfer venue, as both parties have consented to transfer in their pleadings. Moreover, he declines to exercise supplemental jurisdiction over the Plaintiff's NCTSA claim and sever the action. Rather, he transfers the Plaintiff's claim in its entirety, including that arising under the NCTSA, to the Northern District of Texas. The Plaintiff bears the burden of alleging a sufficient and non-conclusory factual basis to rebut the Defendant's challenge to venue under Section 1391(b)(1)-(2), but he has not met that burden. Plaintiff alleges no facts to support his contention that venue is proper under the law in this district. He does not allege and offers no support of even an assumption of an allegation that this "civil action in question" arose in North Carolina, nor does he show that "a substantial part of the events giving rise to the claim" occurred in North Carolina. The Plaintiff offers no evidence of the Defendant doing business in North Carolina or otherwise "purposefully availing" themselves of the resources or benefits of North Carolina. Further, the Plaintiff does not allege that the call originated in North Carolina, or that his claim arises out of any conduct by the Defendant in North Carolina. Even under his potential class action claim, the Plaintiff alleges no actual, specific instances of prospective class members receiving calls in North Carolina; that claim is conjecture at most. This general lack of support, according to Judge Cogburn, is fatal to the Plaintiff's claim of proper venue in this district. The Court cannot assume that it has personal jurisdiction over an entity or that it is the proper venue for a lawsuit based on bald claims alone. b. Transfer Analysis Given that the Court is an improper venue for the Plaintiff's claims, Judge Cogburn must now decide whether to grant the Defendant's Motion to Dismiss or to exercise its discretion to transfer the case to a proper venue. Based on the 11 factors set forth in Scholl, Judge Cogburn chooses to transfer the case to the Northern District of Texas, rather than dismiss it entirely. He says, the only factor that seems to squarely favor the Plaintiff and would keep the case in this district is factor one: The Plaintiff's initial choice of forum. The rest of the factors either favor transfer to Texas or do not favor either forum. Since the Court may consider extrinsic evidence in determining a proper venue, and the Defendant has supplied the Court with uncontroverted evidence that the Plaintiff's permanent residence, by his own admission, is in Texas, Judge Cogburn finds that the Plaintiff's permanent residence is in Texas. Thus, he finds that Factor two is in favor of transfer. Factors three, four, seven, eight, and ten favor transfer as well, given that both parties reside in Texas. Factors five, nine, and eleven are likely neutral given the little information supplied by either party regarding transfer. Factor six favors transfer as well because it would be much easier for a Texas court to enforce a judgment against a Texas plaintiff or defendant given the stronger ties of those parties with that state. Finally, it is important to note that both parties have consented to the transfer in their pleadings. The final question is where the Court should transfer thw matter, which turns on where the parties reside. The Defendant resides in the Northern District of Texas, and through the analysis set forth, the Plaintiff's residence is in Texas as well. Therefore, Judge Cogburn applies Section 1391(b)(1) to choose the proper venue. Under that rule, since both parties reside in Texas, the proper district is the district in which the Defendant resides: The Northern District of Texas. Since the Court elects to transfer the case to the Northern District of Texas, it leaves the issues of the 12(b)(6) motion to that court. III. Conclusion & Order For the foregoing reasons, Judge Cogburn finds that the matter should be transferred to the Northern District of Texas. The action is transferred to the U.S. District Court for the Northern District of Texas. The Clerk is instructed to terminate the action in this district. A full-text copy of the Court's July 13, 2022 Order is available at https://tinyurl.com/yj22uuax from Leagle.com. DETROIT EDISON: Settlement Deal OK'd in Nolan Suit -------------------------------------------------- In the class action lawsuit captioned as LESLIE D. NOLAN, v. DETROIT EDISON COMPANY, DTE ENERGY CORPORATE SERVICES, LLC, DTE ENERGY COMPANY RETIREMENT PLAN, DTE ENERGY BENEFIT PLAN ADMINISTRATION COMMITTEE, POSLER, QUALIFIED PLAN APPEALS COMMITTEE, MICHAEL S. COOPER, RENEE MORAN and JEROME HOOPER, Case No. 2:18-cv-13359-DML-SDD (E.D. Mich.), the Hon. Judge David M. Lawson entered an order granting the plaintiff's unopposed motion and amended motion to certify a settlement class and for preliminary approval of the proposed settlement agreement and procedure for providing class notice. -- The proposed settlement agreement is preliminarily approved, subject to objections by absent class members and except for the determination of the attorney's fees and costs. -- Pursuant to Federal Rule of Civil Procedure 23(b)(1), the following settlement class is conditionally certified in this case: "All DTE employees who, in 2002, elected to transfer from the DTE Traditional Plan to the DTE Cash Balance Plan, and the beneficiaries of any deceased such DTE employees." -- The counsel of record for the named plaintiff, namely attorneys Eva T. Canterella, Robert P. Geller, and Patricia A. Stamler, are appointed as counsel for the designated settlement class. Plaintiff Leslie Nolan is appointed as the class representative. -- On or before July 15, 2022, the defendants shall provide notice of this proposed class settlement to the appropriate state and federal authorities. The defendants must file proof that it has provided the required notice with the Court, in compliance with the Class Action Fairness Act. -- The plaintiff's counsel or their designated representative shall cause notice of the proposed settlement to be given to class members in the following manner: -- The expenses of printing and mailing and publishing all notices required hereby shall be paid by the defendants. -- On or before October 4, 2022, plaintiff's counsel must file a motion for final approval of the settlement identifying absent class members who object. The defendant's response, if the motion is opposed, must be filed on or before October 18, 2022. -- A hearing shall be held at 1:30 p.m. on Tuesday, October 25, 2022 in Room 767 of the Theodore Levin United States Courthouse, 231 West Lafayette Blvd., Detroit, Michigan 48226, to consider any objections to the settlement agreement and to determine whether the settlement agreement should be finally approved as having been negotiated in good faith and as being fair, reasonable, and in the best interest of the class members. -- No class member shall be entitled to be heard or entitled to contest the approval of the terms and conditions of the proposed settlement or the judgment to be entered pursuant thereto approving the same, or the plaintiff's counsel's fee, expense and incentive award application, unless, on or before October 11, 2022, such person: (a) has filed with the Clerk of Court a notice of such person's intention to appear, together with a statement that indicates the basis for such opposition, and (b) has served copies of such notice and statement, together with copies of any papers that such person has filed with the Clerk of the Court and each parties' counsel at the following addresses: Counsel for the Plaintiff, are: Eva T. Cantarella, Esq. Robert P. Geller, Esq. Patricia A. Stamler, Esq. HERTZ SCHRAM PC 1760 S. Telegraph Rd. Bloomfield Hills, MI 48302 Telephone: 248-335-5000 E-mail: ecantarella@hertzschram.com rgeller@hertzschram.com pstamler@hertzschram.com Counsel for the Defendant, are: Christopher K. Meyer, Esq. Mark D. Blocker Benjamin I. Friedman Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 Telephone: (312) 853-0523 E-mail: cmeyer@sidley.com mblocker@sidley.com benjamin.friedman@sidley.com -- The applications for incentive awards, attorney's fees, or reimbursable expenses under Rule 23(h) must be filed on or before September 6, 2022. Counsel must provide notice to class members in accordance with Fed. R. Civ. P. 23(h)(1). -- The class counsel shall be responsible for maintaining a file of all responses to the notice of settlement and any and all other written communications received from the class members. Class counsel immediately shall provide copies of such responses and communications to defendants' counsel. A copy of the Court's order dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3P91q8N at no extra charge.[CC] DGS CONSTRUCTION: Md. App. Flips Judgments in Amaya & Rojas Suits ----------------------------------------------------------------- In the cases, MARIO ERNESTO AMAYA, ET AL. v. DGS CONSTRUCTION, LLC, ET AL., JUAN CARLOS TERRONES ROJAS, Et Al. v. F.R. GENERAL CONTRACTORS, INC., ET AL., Case Nos. 14, 17 September Term, 2021 (Md. App.), the Court of Appeals of Maryland issued an Opinion reversing the judgment of the Court of Special Appeals. I. Introduction In two related cases, construction workers brought actions for unpaid wages and overtime wages under the Maryland Wage and Hour Law ("MWHL"), Md. Code Ann., Lab. & Empl. (1991, 2016 Repl. Vol.) ("LE") Sections 3-401 to 3-431, and the Maryland Wage Payment and Collection Law ("MWPCL"), LE Sections 3-501 to 3-509, and claims for unjust enrichment for the time that they waited and traveled between a parking area where their employers directed them to park and a construction site where they performed physical labor. The workers accessed the construction site via buses, supplied by the general contractor for the project, that took them from the parking area to the construction site and back. They were not compensated for wait and travel time, either coming or going from the parking area, which in total averaged approximately two hours per day. The cases involve the question of whether a federal law which provides that traveling to work is not a compensable activity has been adopted or incorporated into the MWHL, the MWPCL, and the Code of Maryland Regulations ("COMAR") and the related question of whether what constitutes "work" under Maryland law for which wages are due to an employee is limited to what constitutes "compensable work" under federal law. Under the federal Portal-to-Portal Act ("PPA"), 29 U.S.C. Sections 251 to 262, which is an amendment to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 201 to 219, certain activities are not compensable, including (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. If the PPA has been adopted or incorporated into Maryland law, then, in these cases, the workers' wait and travel time between the parking lot and the construction site would not be compensable. In addition, the workers raise the question of whether under COMAR 09.12.41.10 a "prescribed workplace" or "worksite" includes a place that employees are required by an employer to report. In other words, if the PPA's prohibition on compensation for an employee's travel time has not been adopted into Maryland law, we must determine under Maryland law whether the workers would be entitled to compensation for wait and travel time, if their employers indeed required them to report to the parking area and use it as the sole means of accessing the construction site. If, however, the workers were not required to report to the parking area, then regardless of the non-applicability of the PPA, under COMAR 09.12.41.10, the workers would not be entitled to compensation for the wait and travel time. In one of the two cases, which the Court of Appeals refers to as the Amaya case, the trial court granted summary judgment in favor of the employer, ruling that the General Assembly grafted the definition of "employ" from the FLSA into the MWHL and correspondingly the PPA was also grafted into the MWHL. Additionally, the trial court ruled that the workers did not perform "work" at the parking area, and that the parking area was not a "worksite" for purposes of the MWHL claim. In the second case, which we will refer to as the Rojas case, during a jury trial, the trial court granted the employers' motion for judgment made at the close of evidence offered by the workers, ruling that no reasonable jury could find that the workers performed "principal or integral activities" at the parking area, that the workers were traveling during work hours, or that they were traveling from one worksite to another. In each case, the Court of Special Appeals affirmed the trial court's judgment and held that the MWHL and related COMAR regulations incorporate the FLSA, the PPA, and relevant Code of Federal Regulations ("CFR") into Maryland law and that it is not necessary "for Maryland to specifically express that we have adopted an amendment to a federal statute where the Legislature has enacted a state's equivalent of the federal statute." The Court of Special Appeals stated that "incorporating statutory provisions by reference, partially or entirely, into legislation has been long recognized as an acceptable practice on both the state and federal levels unless prohibited by constitutional provisions." It concluded that "the MWHL and its regulations must be read as interrelated parts of the statutory scheme that includes the FLSA, the Portal-to-Portal Act and accompanying regulations." In addition, the Court of Special Appeals held that under Maryland law, "to determine what constitutes a worksite, the Court examines not whether the employee was required to report to a location, but instead whether the employee performed part of their job function at the location," and concluded that, under that analysis, the workers did not perform job functions at the parking lot and thus the parking lot was not a worksite. With respect to the Rojas case, the Court of Special Appeals concluded that the employers moved for judgment on all claims, which included the unjust enrichment claim, and that the trial court properly ruled in favor of the employers on the claim. The Court of Special Appeals determined that the trial court properly dismissed all of the claims, including the unjust enrichment claim, as the trial court found that the workers "did not perform compensable services or work when parking and riding the shuttle." The workers filed in the Court of Appeals petitions for a writ of certiorari, which it granted. II. Background A. Amaya In 2014, DGS Construction, LLC, d/b/a Schuster Concrete Construction ("DGS"), Respondent, entered into a subcontract with The Whiting-Turner Contracting Co., the general contractor, to perform structural concrete work on construction of the MGM National Harbor resort and casino in Prince George's County. DGS worked on the MGM Project from November 2014 through approximately November 2016, employing numerous construction workers. In 2015, DGS employed Mario Ernesto Amaya and Jose Norland Gonzalez, Petitioners, non-managerial construction workers, to perform construction work on the MGM Project. To gain access to the MGM Project construction site, DGS directed workers, including Amaya and Gonzalez, to park at the Rosecroft Raceway, an offsite parking area located approximately 2.3 miles from the MGM Project construction site,5 and then ride buses provided by Whiting-Turner to and from the construction site. Rosecroft was approved by MGM, the Project's owner, as a parking area for the MGM Project and was under Whiting-Turner's control during construction. Whiting-Turner provided parking at Rosecroft to subcontractors' employees who drove to work because there was no location to park at the MGM Project site. MGM and Whiting-Turner had adopted a "good neighbor" policy to avoid disruptions, such as increased traffic, in the community surrounding the MGM Project site. As part of that policy, Whiting-Turner leased Rosecroft and enforced off-site parking requirements. Amaya and Gonzalez were not required to pay for parking at Rosecroft or for use of the bus to and from Rosecroft to the construction site. When they reached the MGM Project site, Amaya and Gonzalez went through security and then clocked in. They were not compensated for the time they spent parking, waiting for the bus, traveling on the bus to and from the MGM Project site, or passing through security upon entry to or departure from the MGM Project Site. During an average shift, the time spent waiting, in transit, and passing through security resulted in approximately two hours of uncompensated time. This time was not recorded in any way by DGS. On Sept. 15, 2017, Amaya and Gonzalez filed in the Circuit Court for Prince George's County a class action complaint against DGS on behalf of themselves and a class of similarly-situated DGS employees for unpaid wages and overtime wages for wait and travel time under the MWHL and the MWPCL. The complaint included three counts: violation of the MWPCL, violation of the MWHL, and unjust enrichment. Amaya and Gonzalez later filed an amended complaint adding Daniel G. Schuster, Respondent, as a defendant. On Feb. 15, 2019, Amaya and Gonzalez filed a motion for class certification. After a hearing, the circuit court bifurcated the case and reserved issuing a ruling on the class certification request until after a determination on the issue of liability. On July 1, 2019, DGS filed a motion for summary judgment. On the same day, Amaya and Gonzalez filed a motion for partial summary judgment and request for a hearing. Each party filed an opposition to the other's motion. On Aug. 22, 2019, the circuit court held a hearing and, at the conclusion of the hearing, took the pending motions under advisement for issuance of a written decision. On Nov. 5, 2019, the circuit court issued a memorandum opinion and order, granting DGS's motion for summary judgment, denying Amaya's and Gonzalez's motion for partial summary judgment, and entering judgment as a matter of law in favor of DGS. Amaya and Gonzalez appealed, and in a reported opinion, the Court of Special Appeals affirmed the circuit court's judgment. On April 13, 2021, Amaya and Gonzalez petitioned for a writ of certiorari, raising the following three issues: 1. Do the MWHL, the MWPCL and COMAR adopt and incorporate the FLSA, PPA and CFR sections where the Maryland statutes, regulations and legislative history never adopted or incorporated them? 2. Is the definition of work under the MWHL, MWPCL and COMAR limited to what is considered compensable work under the PPA, despite the Maryland General Assembly and regulators never incorporating the federal laws or otherwise saying so? 3. Does a worksite or prescribed workplace under COMAR 09.12.41.10 include a location that an employer directs its employees to report? On June 22, 2022, the Court of Appeals granted the petition. B. Rojas As explained, Whiting-Turner was the general contractor for the MGM Project. In this case, Commercial Interiors, Inc., Respondent, is a drywall contractor and was a subcontractor to Whiting-Turner. F.R. General Contractors, Inc., Respondent, a drywall contractor, was a subcontractor to Commercial and employed workers to install drywall and ceilings. Juan Carlos Terrones Rojas and Jose Carlos Rueda Torres, Petitioners, were employed by F.R. to perform carpentry work at the MGM Project. Rojas and Torres worked at the MGM Project construction site for approximately two months, from November 2015 to January 2016. Both Whiting-Turner and MGM directed F.R.'s and Commercial's non-managerial workforce to park at the Rosecroft parking area. To gain access to the MGM Project construction site, Rojas and Torres parked at Rosecroft and then took a bus provided by Whiting-Turner. Rojas and Torres were not compensated for the time spent waiting, traveling on the buses, and passing through security, which amounted to approximately an hour and a half to two hours each day, and F.R. and Commercial did not track the time. On April 5, 2018, Rojas and Torres filed in the Circuit Court for Prince George's County a class action complaint on behalf of themselves and a class of similarly-situated F.R. and Commercial employees for unpaid wages and overtime wages for wait and travel time under the MWHL and the MWPCL. The complaint included three counts: violation of the MWPCL, violation of the MWHL, and unjust enrichment. F.R. and Commercial filed an answer. On July 12, 2019, F.R. and Commercial filed a motion for summary judgment. On July 24, 2019, Rojas and Torres filed a motion for partial summary judgment. Both parties filed oppositions. On Aug. 21, 2019, the circuit court held a hearing. The circuit court denied both Rojas's and Torres' motion for partial summary judgment and F.R.'s and Commercial's motion for summary judgment. From Aug. 26 to 29, 2019, a jury trial was held. At the conclusion of Rojas's and Torres's case, F.R. and Commercial moved for judgment. The circuit court granted the motion for judgment. Rojas and Torres noted an appeal, and on March 2, 2021, in an unreported opinion, the Court of Special Appeals affirmed the circuit court's judgment. On April 20, 2021, Rojas and Torres petitioned for a writ of certiorari, raising the following four issues (the first three of which are identical to the issues raised in Amaya): 1. Do the MWHL, the MWPCL and COMAR adopt and incorporate the Fair Labor Standards Act (FLSA), PPA and CFR sections where the Maryland statutes, regulations and legislative history never adopted or incorporated them? 2. Is the definition of work under the MWHL, MWPCL and COMAR limited to what is considered compensable work under the PPA, despite the Maryland General Assembly and regulators never incorporating the federal laws or otherwise saying so? 3. Does a worksite or prescribed workplace under COMAR 09.12.41.10 include a location that an employer directs its employees to report? 4. Did the Court of Special Appeals err in importing the federal PPA compensability requirements in determining whether a benefit was conferred on Respondents for the purpose of proving a Maryland common law unjust enrichment claim, especially when the Respondents failed to move for judgment on that claim? On June 22, 2021, the Court of Appeals granted the petition. III. The Parties' Contentions A. Whether the PPA Has Been Adopted and Incorporated into Maryland Law and Whether the Definition of "Work" Under Maryland Law is Limited to What Constitutes "Compensable Work" Under the PPA The Petitioners contend that the PPA has never been adopted into Maryland law. They argue that, since being enacted and amended over the years, neither the MWHL nor the MWPCL makes "a single reference, citation, or mention of the PPA." They assert that, although certain federal regulations relating to the FLSA have been expressly incorporated into COMAR, none of the sections relating to the PPA have ever been incorporated and instead that COMAR 09.12.41.10 describing hours of work and when travel can be included in hours of work was promulgated. The Petitioners maintain that the PPA's exclusion of compensation is in contravention of the remedial nature of the MWHL and MWPCL. The Petitioners contend that Maryland law makes compensable all hours an employee is on duty, all hours that employees are required by an employer to be at a prescribed workplace, and travel between worksites. They assert that nothing in the MWHL, MWPCL, or related COMAR regulations indicate that "Hours of Work," as defined by COMAR 09.12.41.10, is limited to principal activities that an employee performs while working for an employer. Petitioners argue that "given the absence of any reference, express or otherwise, to the PPA's incorporation, there is no justification for 'grafting' the PPA's statutory text into the MWHL or the MWPCL as the" circuit court and Court of Special Appeals did in the cases. DGS responds that the Court of Special Appeals correctly concluded that the MWHL and its regulations are interrelated parts of a statutory scheme that includes the FLSA, the PPA, and corresponding federal regulations. It contends that the purposes of the FLSA, as amended by the PPA, and the MWHL are the same, and that the General Assembly mirrored the MWHL on the FLSA. DGS maintains that, when the General Assembly enacted the MWHL, it did so in the context of the history of the FLSA and the PPA and "knowing that incorporating the FLSA into the MWHL by general reference also meant incorporating the PPA regarding compensable time unless they expressly stated otherwise." As such, it contends that the MWHL and COMAR must be read to include the PPA's requirement that an employer is not required to pay an employee wages for traveling to and from the actual place of performance of a principal activity which the employee is employed to perform and activities that are preliminary and postliminary to the employee's principal activity. F.R. and Commercial contend that the FLSA, as amended by the PPA, is Maryland law. F.R. and Commercial argue that the MWHL is Maryland's analog to the FLSA, that Maryland courts look to decisions under the FLSA in interpreting the MWHL and that, under the FLSA, the time claimed by Rojas and Torres is not compensable. F.R. and Commercial assert that Maryland courts have recognized the PPA is a part of Maryland wage law. F.R. and Commercial contend that it is significant that Maryland has not stated that the PPA is not part of the MWHL and the General Assembly enacted the MWHL twenty years after the FLSA was amended by the PPA, at a time when the General Assembly would have been "aware of the state of the FLSA. B. COMAR 09.12.41.10 The Petitioners contend that, in Maryland, a "worksite" is a location where an employer exercises control over an employee's time or requires the employee to report. They assert that, contrary to the Court of Special Appeals' determination, under Maryland law, a "worksite" is not limited to a place where an employee is performing a job function or principal activities of employment. Petitioners maintain that, rather, a worksite under Maryland law includes a location where an employer exercises "some control" over an employee. The Petitioners argue that the Court of Special Appeals incorrectly determined that a worksite is limited to a location where an employee performs a job function or performs work and erred in concluding that Rosecroft was not a worksite. They assert that, under COMAR 09.12.41.10, they are entitled to wages for their travel time, including wait time, between Rosecroft and the MGM Project construction site. They maintain that, assuming there were disputes of material fact concerning matters such as whether Rosecroft was a worksite, the degree of control exercised by Respondents over them at Rosecroft, and whether they were required to report to Rosecroft, the circuit court erred in granting summary judgment in Amaya and in granting the motion for judgment in Rojas and not allowing the questions to be resolved by the jury. In Amaya, DGS responds that the Court of Special Appeals correctly determined that Rosecroft was not a worksite under the MWHL. DGS contends that the plain meaning of "worksite" is a place where an employee performs job duties. It argues that the common meaning of "worksite" does not include a parking lot located miles away from where construction work occurs and where no work duties are performed. DGS asserts that because the term "worksite" would not include Rosecroft, the time that Amaya and Gonzalez spent traveling between Rosecroft and the MGM Project constitution site would not constitute compensable travel time under COMAR 09.12.41.10. DGS contends that the definition of "worksite" adopted by the Court of Special Appeals conforms with Maryland law. DGS maintains that Amaya's and Gonzalez's request to create "a control test" to determine what constitutes compensable work in Maryland would require action by the General Assembly. It states that Amaya and Gonzalez "did not perform any part of their job functions or any activity that was integral and indispensable to the principal duties of their job to work construction at Rosecroft," and that, as such, their travel time between Rosecroft and the MGM Project construction site is not compensable under the MWHL. In Rojas, F.R. and Commercial respond that, under the plain language of the relevant statutes and regulations, Rojas and Torres were not required to be paid for time spent parking or shuttling from Rosecroft to the MGM Project construction site. F.R. and Commercial contend that the words "worksite" and "workplace" mean a location where an employee performs work, and that Rojas and Torres did not perform any work at Rosecroft or on the buses. F.R. and Commercial argue that the time claimed by Rojas and Torres does "not constitute `hours of work' for which wages were required to be paid under the MWHL or the MWPCL" and instead was part of a commute, which is not compensable. They assert that nothing in the MWHL nor COMAR refers to control for determining whether a location is a worksite. C. The Unjust Enrichment Claim in the Rojas Case The circuit court granted judgment in favor of F.R. and Commercial as to Rojas' and Torres' claim for unjust enrichment. Rojas and Torres contend that F.R. and Commercial moved for judgment only as to the statutory wage claims and that the elements of the unjust enrichment claim are different from those of the wage claims. For their part, F.R. and Commercial counter that, because wait and travel time is not compensable, there was no benefit accepted or retained by them which would give rise to a claim for unjust enrichment. IV. Conclusion The Court of Appeals holds that the PPA has not been adopted or incorporated into Maryland law in either the MWHL, the MWPCL, or relevant COMAR regulations. Specifically, it concludes that 29 U.S.C. Section 254(a) of the PPA -- which provides, among other things, that traveling to the actual place of performance of principal activity or activities which an employee is employed to perform is not compensable -- has not been implicitly adopted into Maryland law. In other words, what constitutes "work" under Maryland law is not limited to what is compensable work under the PPA and FLSA. As such, in these cases, the issue of whether the workers are entitled to compensation for the time spent waiting at the parking area and traveling to the construction site and back must be resolved under Maryland law. Although the workers framed the question in the Court of Appeals slightly differently, as it sees it, under Maryland law, the critical issue is whether the workers were either required by their employer to report during work hours to a location that is the employer's premises, to be on duty, or to report to a prescribed workplace, or whether the employees were traveling from one worksite to another. If so, under COMAR 09.12.41.10, the workers are entitled to compensation. That said, the Court of Appeals concludes that, in each case, there are genuine disputes of material fact as to whether the workers were required to report to the parking area and whether the parking area was the employers' premises or a prescribed workplace or whether the employees were required to be on duty as provided under COMAR 09.12.41.10, and the respective trial courts erred in granting summary judgment and judgment at the conclusion of the workers' case at trial. Accordingly, the cases are remanded to the Court of Special Appeals with instructions to remand the cases to the circuit court for findings by a trier of fact as to whether the workers were required to report to the parking area, whether the parking area was the employer's premises or a prescribed workplace, or whether the workers were required to be on duty, and hence were engaged in hours of work as set forth by COMAR 09.12.41.10. In addition, in the Rojas case, the Court of Appeals concludes that the Court of Special Appeals erred in affirming the trial court's grant of judgment as to the unjust enrichment claim on the ground that the workers did not perform compensable work, as this determination was based on the erroneous conclusion that the PPA applied. Therefore, in Case No. 14, the Court of Appeals reverses the judgment of the Court of Special Appeals. It remands the case to that court with instructions to remand the case to the Circuit Court for Prince George's County for further proceedings consistent with the Opinion. The Respondents will pat the pay costs. In Case No. 17, the Court of Appeals reverses the judgment of the Court of Special Appeals reversed. It remands the case to that court with instructions to remand the case to the Circuit Court for Prince George's County for further proceedings consistent with the Opinion. The Respondents will pat the pay costs. A full-text copy of the Court's July 13, 2022 Opinion available at https://tinyurl.com/mr4a3xeh from Leagle.com. ESTENSON LOGISTICS: Class Cert. Deadline Continued to Dec. 13 ------------------------------------------------------------- In the class action lawsuit captioned as ALBERT JOHNSON, RAUL MARTINEZ, TERRANCE LOVETT, ROBERT PARSONS and JAVIER CUEVAS MAGANA on behalf of themselves and all others similarly situated, v. ESTENSON LOGISTICS, LLC, a Delaware limited liability company; HUB GROUP TRUCKING, INC., a Delaware corporation; HUB GROUP, INC., DOING BUSINESS IN CALIFORNIA AS CALIFORNIA HUB GROUP; and DOES 1 through 100, Inclusive, Case No. 5:20-cv-00118-JAK-SP (C.D. Cal.), the Hon. Judge John A. Kronstadt entered an order approving stipulation to participate in mediation and to continue class certification deadline and related deadlines. 1. The deadline for Plaintiffs' Motion Class Certification (Rule 23) and Motion for Conditional Certification (FLSA) is continued from October 3, 2022, to December 13, 2022; 2. The deadline for Defendants' Opposition to Plaintiffs' Motion for Class Certification (Rule 23) and Motion for Conditional Certification (FLSA) is continued from November 1, 2022, to January 18, 2023; 3. The deadline for Plaintiffs' Reply in support of Motion for Class Certification (Rule 23) and Motion for Conditional Certification (FLSA) is continued from November 15, 2022, to February 1, 2023; 4. The hearing on Plaintiffs' Motion for Class Certification (Rule 23) and Motion for Conditional Certification (FLSA) is continued from December 5, 2022, to February 27, 2023; 5. Non-expert discovery cutoff is continued from April 17, 2023, to July 17, 2023; 6. Initial expert disclosures cutoff is continued from May 1, 2023, to September 1, 2023; 7. Rebuttal expert disclosures cutoff is continued from May 15, 2023, to September 15, 2023; 8. Expert discovery cutoff is continued from June 1, 2023, to October 6, 2023; 9. Last day to file motions (including discovery motions) is continued from June 13, 2023, to October 27, 2023; and 10. The hearing on Defendant's Motion to Dismiss pending in Buford v. Hub Group Dedicated, LLC, Case No. ED CV21-02179 JAK (SPx) is continued from September 12, 2022, to October 31, 2022. Estenson Logistics provides logistics services. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3Ol3lFS at no extra charge.[CC] FIRST ORDER: Seeks to Stay Peacock Bid for Conditional Cert ----------------------------------------------------------- In the class action lawsuit captioned as SAMUEL PEACOCK, on behalf of himself and those similarly situated, v. FIRST ORDER PIZZA, LLC, TY TURNER, JAMES HOLMES, DOE CORPORATION 1-10, and JOHN DOE 1-10, Case No. 2:22-cv-02315-SHM-tmp (W.D. Tenn.,), the Defendants ask the Court to enter an order staying of the Plaintiff's motion for conditional certification, subject to the Court's ruling on Defendants' pending Motion to Dismiss. A copy of the Defendants' motion dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3v0M8ee at no extra charge.[CC] The Defendants are represented by: Courtney Leyes, Esq. FISHER & PHILLIPS LLP 3310 West End Avenue, Suite 500 Nashville, TN 37203 Telephone: (615) 488-2900 Facsimile: (615) 488-2928 E-mail: cleyes@fisherphillips.com FIRST ORDER: Suit Seeks Conditional Cert. of FLSA Collective ------------------------------------------------------------ In the class action lawsuit captioned as Samuel Peacock, On behalf of himself and those similarly situated, v. First Order Pizza, LLC, et al., Case No. 2:22-cv-02315-SHM-tmp (W.D. Tenn.), the Plaintiff asks the Court to enter an order conditionally certifying this case as a Fair Labor Standards Act (FLSA) collective action, and authorizing him to send notice of the pendency of this action to his similarly-situated co-workers. Specifically, Plaintiff seeks conditional certification of the following employees: "All current and former delivery drivers employed at Defendants' Domino's stores between the date three years prior to filing of the original complaint and the date of the Court's Order approving notice." The Plaintiff requests the Court to additionally authorize the Plaintiff to send notice of this action to the delivery drivers who have worked at Defendants' Domino's stores dating back three years prior to the filing of the complaint, approve the Plaintiff's proposed notices and methods of disseminating notice, order Defendants to provide name and contact information for all potential opt-in plaintiffs within 14 days of the court's order, and authorize a 60-day opt-in period. A copy of the Plaintiff's motion dated July 6, 2022 is available from PacerMonitor.com at https://bit.ly/3OeX8LL at no extra charge.[CC] The Plaintiff is represented by: Andrew R. Biller, Esq. Andrew P. Kimble, Esq. Riley E. Kane, Esq. Biller & Kimble, LLC 8044 Montgomery Rd., Suite 515 Cincinnati, OH 45236 Telephone: (513) 202-0710 Facsimile: (614) 340-4620 E-mail: abiller@billerkimble.com akimble@billerkimble.com rkane@billerkimble.com www.billerkimble.com - and - David W. Garrison, Esq. Joshua A. Frank, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Phillips Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com FORLINI'S RESTAURANT: Barrera Seeks Conditional Cert of Collective ------------------------------------------------------------------ In the class action lawsuit captioned as MANUEL BARRERA, on behalf of himself, FLSA Collective Plaintiffs, and the class, v. FORLINI'S RESTAURANT, INC., JOSEPH FORLINI, and DEREK FORLINI, Case No. 1:22-cv-01256-VEC (S.D.N.Y.), the Plaintiff files bid for conditional collective certification and for court facilitation of notice pursuant to 29 U.S.C. section 216(b). A copy of the Plaintiff's motion dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3AYrbEB at no extra charge.[CC] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 W. 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1180 Facsimile: (212) 465-1181 GBM GLOBAL: Court Confirms Arbitration Award in 91 Individuals Suit ------------------------------------------------------------------- In the case, GBM GLOBAL HOLDING COMPANY LIMITED, Petitioner v. 91 INDIVIDUALS ATTACHED TO SCHEDULE A, Respondent, Case No. 21 Civ. 6284 (AKH) (S.D.N.Y.), Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York granted the petition to confirm the arbitration award, with postjudgment interest. Petitioner GBM Global moves to confirm an arbitration award, rendered on May 2, 2022 against 91 Individuals named in the attached schedule (collectively "Respondents") in the amount of $5,231,549.42, pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. Sections 1 et seq., which implements the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and postjudgment interest, pursuant to 28 U.S.C. Section 1961. Despite having notice of the arbitral, and this, proceeding, the Respondents failed to appear. Under Section 207 of the FAA, a court "shall confirm" an arbitral award falling under the New York Convention, unless the case falls within the enumerated grounds for refusing or deferring recognition or enforcement of the award. Judge Hellerstein finds no grounds to refuse or defer recognition or enforcement. Because the Respondent has failed to appear or respond to the petition, and the time has passed for responding to the instant motion, Judge Hellerstein treats the petition as an unopposed motion for summary judgment. The relevant facts are therefore undisputed. The Petitioner owns and operates a cryptocurrency exchange under the name "Bitmart." One of the cryptocurrencies traded on the Bitmart exchange is Bitcoin Satoshi Vision ("BSV"). In July 2021, the Respondents registered accounts on the Bitmart exchange and accepted the terms of Petitioner's User Agreement. After registering their accounts, the Respondents carried out a malicious "51% attack" on the BSV blockchain, and by briefly overtaking the mining power, were able to implant a trail of sham transactions that created the appearance of Respondents possessing 91,000 authentic BSV tokens. The Petitioner was duped into treating the sham tokens as authentic and credited a total of 91,000 authentic BSV tokens into digital wallets linked to the Respondents' accounts. The Respondents immediately traded the authentic tokens, totaling in value approximately $6,070,000 as of July 10, 2021, for other cryptocurrencies. Although Petitioner was able to freeze some of the Respondents' accounts before all authentic cryptocurrency could be emptied, approximately $5,027,000 was transferred onto other exchanges. Invoking Section 10.3 of the User Agreement, the Petitioner initiated an arbitration proceeding before the AAA, alleging breach of contract and fraud. Despite being given notice of the proceedings, the Respondents failed to appear before the AAA. The Petitioner submitted affidavits and documentary evidence in support of their claims. Based on the uncontested evidence, on May 2, 2022, the arbitrator awarded the Petitioner joint and several damages for each withdrawal of cryptocurrency from a Respondent account occurring on July 9, 2021, with the damages to be calculated in U.S. dollars at the exchange rate prevailing as of the close of business on the day of the award. It calculated the specific cryptocurrencies (identified by ticker) and withdrawal amounts against each as follow: BSV 3.07; BTC 10.9946; ETH 218.929; USDC 296,654.277; USDT 693,721.37; XRP 3,926,159.284; ADA 130838.17; DOGE 485; ETC 0.389; HOT 29,912,899; LTC 668.499; MATIC 297,691; XEM 313.94; XLM 969,308.31; and ZEC 0.3487. The arbitrator, applying the exchange rate in effect at the close of business on that date, awarded damages totalling $5,231,549.42, with all sums to be paid within 45 days from the date of the Award. The Convention governs judicial confirmation of foreign arbitration awards. Under 9 U.S.C. Section 207, a party may seek to confirm a foreign arbitral award under the New York Convention if the award (1) falls under the Convention; (2) was issued within the past three years; and (3) does not fall under a relevant exception. Article V of the New York Convention sets forth seven explicit grounds for refusal of a foreign arbitration award: (1) incapacity of the parties; (2) improper notice or inability for the respondent to present a case; (3) the award does not comply with terms of the submission to arbitration or is otherwise beyond the scope of proceedings; (4) the composition of the arbitral authority was not in accordance with the parties or host country; (5) the "award has not yet become binding on the parties, or has been set aside" by another authority; (6) the subject matter of the dispute "is not capable of settlement by arbitration" under relevant law; and (7) "enforcement of the award would be contrary to public policy." Under the New York Convention, the Court's role "in reviewing a foreign arbitral award is strictly limited" and "extremely deferential." Courts must look to see if "'a ground for the arbitrator's decision can be inferred from the facts of the case.'" "Only 'a barely colorable justification for the outcome reached' by the arbitrators is necessary to confirm the award." The Final Award falls under the New York Convention because the United States is a signatory to the Convention; the Award was issued less than three years ago; and the dispute arose out of a commercial relationship between the parties. In addition, the Award meets the deferential "barely colorable justification" standard, relying on the Petitioner's uncontested affidavits and documentary evidence establishing that Respondents orchestrated a cyberattack on the Petitioner in order to dupe Petitioner into crediting the Respondents with authentic BSV tokens, and that as a result of the Respondents' deceptions, the Petitioner was damaged. For the reasons provided, Judge Hellerstein granted the petition to confirm the arbitration award, with postjudgment interest from the date of this judgment. The Clerk of Court will enter judgment and terminate the case. A full-text copy of the Court's July 13, 2022 Order is available at https://tinyurl.com/4terb8zu from Leagle.com. GEORGIA: Summary Judgment in Fincher v. Corrections Dep't. Affirmed ------------------------------------------------------------------- In the case, JOSEPH DANIEL FINCHER, TOMMY LYALL, SCOTT SIMMONS, GERALD DODSON, CAMERON ELLIS, TOMMY PORTER, Plaintiffs-Appellants v. GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, UNIT MANAGER JAMISON, Defendants-Appellees, Case No. 21-14390, Non-Argument Calendar (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit affirms the summary judgment in favor of the Defendants-Appellees. Inmates Joseph Fincher, Tommy Lyall, Scott Simmons, Gerald Dodson, Cameron Ellis, and Tommy Porter appeal the summary judgment in favor of the Georgia Department of Corrections, the Warden of Phillips State Prison, and a unit manager, Alton Jamison. The inmates filed a putative class action complaining of retaliation in violation of the First Amendment after they used the "See Something, Say Something" hotline and of being subjected to cruel and unusual punishment in violation of the Eighth Amendment by being placed in segregation where they were exposed to unsanitary conditions. The district court ruled that the Department was immune from suit and alternatively was not subject to suit under section 1983 and that no evidence connected the Warden or Jamison to the alleged retaliation or to the inmates' placement in segregation. The Eleventh Circuit reviews de novo a summary judgment. Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The Eleventh Circuit finds that the district court correctly entered summary judgment in favor of the Department. "To prevail on a civil rights action under Section 1983, a plaintiff must show that he was deprived of a federal right by a person acting under color of state law." And the Eleventh Amendment bars suits "against one of the United States," including a department of a state government. The inmates do not dispute that their suit against the Department—a state agency that has not waived its immunity -- "is proscribed by the Eleventh Amendment," and that it is not a person subject to suit under section 1983. The district court also did not err by entering summary judgment in favor of the Warden and Jamison and against the inmates' claims of retaliation. To prove retaliation based on the First Amendment, the inmates had to establish they suffered an adverse action at the hands of officials in retaliation for engaging in protected conduct. The inmates asserted that Jamison ordered them in October 2019 to stop their lawsuit, but that conduct could not be retaliation for an action they admitted "Jamison did not have any knowledge of until he was served with the First Amended Complaint on Dec. 3, 2019." The Eleventh Circuit finds that they provided only a conclusory allegation that they "were retaliated against by defendant Warden Hatcher," which was insufficient to survive summary judgment. And their assertion that the Warden and Jamison were "aware or should have been aware that these acts of retaliation were occurring and therefore are responsible" failed for want of proof that the officials either participated in the retaliation, directed their subordinates to act unlawfully, or knew those subordinates would act unlawfully yet failed to stop them. The district court also did not err by entering summary judgment in favor of the Warden and Jamison and against the inmates' claim of being placed in segregation where there were allegedly unsanitary conditions. The Eleventh Circuit holds that the undisputed evidence establishes that neither official was involved in the inmates' placement in segregation. Inmate records, authenticated by the Deputy Warden of Care and Treatment, established that the extent of the Warden's involvement in the inmates' placement was on Aug. 21, 2019, when he released Inmates Fincher and Ellis from administrative segregation and on May 1, 2019, when the Warden approved a "bed move" for Inmate Simmons. The records also establish that Jamison had no involvement in inmates' placement. And although the inmates asserted that they were maltreated by cellmates in cells that were filthy and infested with mice and insects, they did not argue or submit evidence that the Warden or Jamison caused, had a custom or policy of directing subordinates to maintain or to ignore, or disregarded evidence of the unsanitary conditions in segregation cells. The Eleventh Circuit affirms the summary judgment in favor of the Georgia Department of Corrections, the Warden, and Jamison. A full-text copy of the Court's July 13, 2022 Order is available at https://tinyurl.com/2v7kcj9y from Leagle.com. GERBER PRODUCTS: Scheduling Order Entered in Keeter Class Suit -------------------------------------------------------------- In the class action lawsuit captioned as Keeter v. Gerber Products Company, Re: GERBER PRODUCTS COMPANY HEAVY METALS BABY FOOD LITIGATION, Case No. 1:21-cv-00269-MSN-JFA (E.D. Va.), the Hon. Judge John F. Anderson entered a scheduling order as follows: -- Fact discovery shall be November 30, 2022 concluded by: -- Expert discovery shall be February 28, 2023 concluded by: -- The plaintiffs' motion for December 15, 2022 class certification shall be filed by: -- The defendant's opposition January 30, 2023 brief shall be filed by: -- The plaintiffs' reply brief February 15, 2023 shall be filed by: -- The hearing on plaintiffs' February 24, 2023 motion for class certification is continued to: Gerber Products Company is an American purveyor of baby food and baby products headquartered in Florham Park, New Jersey, with plans to relocate to Arlington, Virginia. Gerber is a subsidiary of Nestle. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3oee1eX at no extra charge.[CC] GROUP HEALTH: Order Modifying Class Cert. Schedule Entered ---------------------------------------------------------- In the class action lawsuit captioned as STEVEN PLAVIN, GARY ALTMAN, MICHELLE DA VIS-MATLOCK and DANIELLE THOMAS, on behalf of themselves and all others similarly situated, v. GROUP HEALTH INCORPORATED, Case No. 3:17-cv-01462-RDM (M.D. Pa.), the Hon. Judge Robert D. Mariani entered a stipulated order modifying schedule as follows: -- All fact discovery shall be August 8, 2022 completed by: -- Plaintiffs' affirmative expert September 8, 2022 report related to class certification, if any, are due on: -- Defendant's affirmative expert October 7, 2022 report related to class certification, if any, are due on: -- Supplementations to the November 4, 2022 parties' expert reports related to class certification, if any, are due on: -- Plaintiffs' Motion for November 30, 2022 Class Certification is due on: -- Defendant's Opposition January 13, 2023 to Class Certification is due on: -- Plaintiffs' Reply in February 10, 2023 Support of Class Certification is due on: Group Health is a statewide not-for-profit health insurer serving New York. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3OdUPZu at no extra charge.[CC] HARBOURSIDE FUNDING: Seeks to Decertify Class in Peng Suit ---------------------------------------------------------- In the class action lawsuit captioned as TING PENG and LIN FU, on behalf of themselves individually and all others similarly situated, and derivatively on behalf of HARBOURSIDE FUNDING, LP, a Florida limited partnership, v. NICHOLAS A. MASTROIANNI II; HARBOURSIDE FUNDING GP, LLC, a Florida limited liability company; and HARBOURSIDE PLACE, LLC, a Delaware limited liability company, and HARBOURSIDE FUNDING, LP, a Florida limited partnership, Case No. 9:20-cv-80102-AMC (S.D. Fla.), the Defendants file expedited motion to decertify class. The majority of the Class members (34 of 66) want to settle with the Defendants, but dispute the legal fee the DeHeng law firm intends to seek, while three other Class members have already settled with the Defendants. This reveals that the Class Representatives are holding the Class hostage by refusing to assent to a Class-wide settlement and, as a result, the interests of the Class are being subordinated both to the interests of the Class Representatives, who want to proceed to trial, and the DeHeng law firm, which, despite not being Class Counsel, has asserted an economic interest over any funds obtained by the Class members. Only 18 Class members have indicated that they are not interested in settling at this time on the terms proposed. And of this number, six (6) previously filed suit on their own behalf in state court, demonstrating their ability to protect their own perceived interests in court. As Class Counsel concedes on reply, eighteen is presumptively insufficient to maintain a class, while anything less than 40 renders the viability of the Class questionable. This is particularly so, viewed in light of Rule 23(b)(3), which requires that class treatment be the superior method for adjudicating claims. Rule 23(b)(3) is not satisfied here, where the evidence demonstrates that the majority of the Class members have an interest in individually controlling their claims, without any interference by the DeHeng law firm. On January 11, 2021, the Plaintiffs filed their Motion for Class Certification. The Certification Motion stated that "by pursuing their own claims," the named Plaintiffs would "necessarily advance the interests of the proposed Class", and specifically sought the appointment of Jeffrey L. Fazio of DeHeng Law Offices, P.C. On June 25, 2021, the Court entered an Order Granting the Motion for Class Certification. In that Order, the Court ruled that "should circumstances change or new record evidence come to light with respect to the propriety of class certification or the adequacy of the class definition, the parties may move at a later date to decertify or modify the class as defined in this Order." A copy of the Defendants' motion dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3Pn6lTM at no extra charge.[CC] The Defendants are represented by: Eleni Kastrenakes Howard, Esq. David P. Ackerman, Esq. AKERMAN LLP 777 South Flagler Drive Suite 1100, West Tower West Palm Beach, FL 33401 Telephone: (561) 653-5000 Facsimile: (561) 659-6313 E-mail: david.ackerman@akerman.com claudia.rodriguez@akerman.com eleni.howard@akerman.com luke.bovat@akerman.com - and - Richard G. Haddad, Esq. Gabriela S. Leon, Esq. OTTERBOURG P.C. 230 Park Avenue New York, NY 10169 Telephone: (212) 661-9100 Facsimile: (212) 682-6104 E-mail: rhaddad@otterbourg.com gleon@otterbourg.com HELLO PRODUCTS: Offers $1.4M to Fix False Advertising Suit ---------------------------------------------------------- Top Class Actions report a $1.4 million settlement has been proposed in a class action lawsuit alleging Hello Products LLC falsely advertised oral care products that contain activated charcoal, and no proof of purchase is required for consumers to benefit. Consumers who purchased Hello oral care products containing activated charcoal before June 15, 2022, may be entitled to a cash payment from the class action settlement. In recent years, the Hello class action lawsuit alleges, products containing activated charcoal have been touted by "opportunistic marketers, celebrities and social media influencers" for their alleged detoxifying effects and other health benefits. In response to these marketing efforts, consumers have allegedly been willing to pay a premium for products containing activated charcoal, the Hello class action lawsuit alleges. The Hello charcoal toothpaste class action lawsuit claims the oral-care products are deceptively labeled and do not deliver the promised teeth whitening and other benefits. In reality, experts advise against the use of oral care products containing activated charcoal due to potential harm to oral health and aesthetics, the Hello class action lawsuit alleges. When used in oral care, charcoal is reportedly abrasive to the gums and tooth enamel. The American Dental Association (ADA) has not granted approval to any oral care products that contain activated charcoal for its ADA Seal of Acceptance, the plaintiffs assert. Hello denies the allegations but agreed to settle the activated charcoal class action lawsuit to avoid the burden and expense of ongoing litigation. It is estimated class members who submit timely and valid claims will receive a payment of approximately $6 per product purchased, but the actual amount each claimant will receive depends on the total number of claims filed. No proof of purchase is required, but class members must assert under penalty of perjury that they purchased Hello oral care products with activated charcoal. Class members who provide proof of purchase may claim benefits for up to 10 products and class members without proof of purchase may claim up to five products. Class members who wish to opt out of or object to the Hello activated charcoal toothpaste settlement must do so no later than Aug. 27, 2022. The final fairness hearing is scheduled for Jan. 10, 2023. The deadline to submit a claim form is Oct. 11, 2022. The case is styled, Patellos, et al. v. Hello Products, LLC, Case No. 1:19-cv-09577-SDA., Case No. 1:19-cv-09577-SDA, in the U.S. District Court Southern District of New York. On the Web: https://www.CharcoalToothpasteSettlement.com Claims Administrator: Charcoal Toothpaste Settlement Administrator P.O. Box 25410 Santa Ana, CA 92799 info@charcoaltoothpastesettlement.com Tel: 866-221-3146 Class Counsel: William B. Federman, Esq. FEDERMAN & SHERWOOD 10205 N Pennsylvania Ave. The Village, OK 73120 Tel: 405-235-1560 - and - David Pastor, Esq. PASTOR LAW OFFICE LLP 63 Atlantic Ave #3 Boston, MA 02110 Tel: 617-742-9700 Defense Counsel: Robyn E. Bladow, Esq. KIRKLAND & ELLIS LLP 555 South Flower Street Suite 3700 Los Angeles, CA 90071 Tel: 213-680-8634 [GN] HOME DEPOT: Court Modifies Scheduling Order Entered in Patton ------------------------------------------------------------- In the class action lawsuit captioned as DOUGLAS PATTON, SALVADOR REYNOSA, JR., AND ALBERTO MUNIZ, individuals, on behalf of themselves and on behalf of all persons similarly situated, v. HOME DEPOT U.S.A., INC., a Corporation; and DOES 1 through 50, Inclusive, Case No. 2:21-cv-01096-WBS-KJN (E.D. Cal.), the Hon. Judge Kendall J, Newman entered an order granting stipulation to modify the scheduling order as follows: Former Date New Date -- Phase One Discovery July 1, 2022 Sept. 2, 2022 Cut-Off: -- Expert Disclosures -- July 8, 2022 Sept. 9, 2022 Phase 1: -- Rebuttal Expert July 29, 2022 Sept. 30, 2022 Disclosures: -- Phase I- Expert Aug. 19, 2022 Oct. 21, 2022 Discovery Cut-Off: -- Last day to file MSJ: Sept. 2. 2022 Nov. 4, 2022 -- Last day to file Oct. 7, 2022 Dec. 9,2022 Opposition to MSJ: -- Last day to file Reply Nov. 4, 2022 Dec. 6, 2023 in Support of MSJ: -- Expert Disclosures Dec. 23, 2022 Feb. 24, 2023 (Phase 2): -- Last day to file Motion July 2, 2023 Sept. 4, 2023 for Class Certification: -- Last day to file Aug. 18, 2023 Oct. 20, 2023 Opposition to: Home Depot operates home improvement retail stores. A copy of the Court's order dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3uXt4gV at no extra charge.[CC] HYATT CORP: Discovery in Insixiengmay Suit to Continue on Oct. 3 ---------------------------------------------------------------- In the case, JANICE INSIXIENGMAY, individually and on behalf of all others similarly situated, Plaintiff v. HYATT CORPORATION, a Delaware Corporation; HYATT CORPORATION DBA HYATT REGENCY SACRAMENTO, an unknown association; and DOES 1 to 100, inclusive, Defendants, Case No. 2:18-cv-02993-TLN-DB (E.D. Cal.), Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California further amended the Court's Amended Pretrial Scheduling Order to continue the deadline to complete Phase I discovery regarding facts that are relevant to whether the action should be certified as a class action to Oct. 3, 2022. The Stipulation and proposed Order is entered into between the Plaintiff and Defendant Hyatt Corp, d/b/a Hyatt Regency Sacramento (erroneously sued as both "Hyatt Corporation" and "Hyatt Corporation dba Hyatt Regency Sacramento") ("Defendant"), by and through their counsel of record. The Court entered an Amended Pretrial Scheduling Order on Aug. 3, 2020 providing that Phase I discovery regarding facts that are relevant to whether this action should be certified as a class action will be completed within 240 days (i.e., March 31, 2021). As a result of a prior informal discovery conference on Feb. 19, 2021, with Hon. Deborah Barnes, the Court suggested a stipulation and order to continue the factual discovery deadline, which was granted on Feb. 26, 2021, continuing the deadline to June 1, 2021. The Court further amended the Amended Pretrial Scheduling Order on May 25, 2021 to continue the Phase I discovery deadline to Aug. 2, 2021 to provide the Defendant with additional time to produce electronic copies of time and pay records for a sample of employees the parties agreed to, as the Defendant encountered difficulties in obtaining the requested data in electronic form. Thereafter, the Defendant continued to attempt to obtain and produce the data in electronic form but encountered additional difficulties. On July 15, 2021, the Defendant's counsel informed the Plaintiff's counsel that the Defendant would produce time and pay records from its hard copies because it was ultimately unable to obtain complete electronic data. Thereafter to because the Defendant needed additional time to produce the documents and because the Parties needed more time for depositions, the parties submitted additional stipulations and orders to continue the Phase I discovery deadline, which were granted, making the current deadline Aug. 1, 2022. The deposition of the Rule 30(b)(6) designee of the Defendant is scheduled to take place on July 28, 2022. The deposition of the Plaintiff is scheduled to take place on July 29, 2022. In order to provide sufficient time for either party to compel answers to questions asked at deposition or complete any follow up document requests, to the extent necessary, the Parties believe additional time is necessary to complete Phase I discovery and agree there is good cause to continue the deadline for Phase I discovery approximately 60 days. Therefore, by and between the Parties, subject to the approval of the Court, stipulate as follows: The Court's Amended Pretrial Scheduling Order will be further amended to continue the deadline to complete Phase I discovery regarding facts that are relevant to whether the action should be certified as a class action to Oct. 3, 2022. Having considered the stipulation and finding good cause, Judge Nunley further amended the Court's Amended Pretrial Scheduling Order to continue the deadline to complete Phase I discovery regarding facts that are relevant to whether the action should be certified as a class action to Oct. 3, 2022. The Amended Pretrial Scheduling Order will remain in effect in all other respects. A full-text copy of the Court's July 13, 2022 Order is available at https://tinyurl.com/yxzzb4fu from Leagle.com. Galen T. Shimoda -- attorney@shimodalaw.com -- Justin P. Rodriguez -- jrodriguez@shimodalaw.com -- Brittany V. Berzin -- bberzin@shimodalaw.com -- Shimoda & Rodriguez Law, PC, in Elk Grove, California, Attorneys for Plaintiff JANICE INSIXIENGMAY, on behalf of herself and similarly situated employees. Joseph W. Ozmer II -- jozmer@kcozlaw.com -- J. Scott Carr -- scarr@kcozlaw.com -- KABAT CHAPMAN & OZMER LLP, in Los Angeles, California, Attorneys for Defendants HYATT CORPORATION, d/b/a HYATT REGENCY SACRAMENTO (erroneously sued as both "Hyatt Corporation" and "Hyatt Corporation dba Hyatt Regency Sacramento). HYUNDAI MOTOR: Filing for Prelim OK of Settlement Extended ----------------------------------------------------------- In the class action lawsuit captioned as RAMTIN ZAKIKHANI, KIMBERLY ELZINGA, THEODORE MADDOX JR., MICHAEL SUMMA, JACQUELINE WASHINGTON, PATTI TALLEY, ANA OLACIREGUI, ELAINE PEACOCK, MELODY IRISH, and DONNA TINSLEY, individually and on behalf of all others similarly situated, v. HYUNDAI MOTOR COMPANY, HYUNDAI MOTOR AMERICA, KIA CORPORATION, and KIA AMERICA, INC., Case No. 8:20-cv-01584-SB-JDE (C.D. Cal.), the Hon. Judge Stanley Blumenfeld, Jr. entered an order that the deadline for the Plaintiffs to file their Motion for Preliminary Approval of the Settlement is continued from July 15, 2022 to August 1, 2022. The dates for class certification briefing and hearing set forth in the Court's case management order (CMO) are likewise extended by two weeks, as follows: Event Current Dates New Dates -- Plaintiffs' Motion for July 25, 2022 Aug. 8, 2022 Class Certification -- Defendants' Opposition Sept 23, 2022 Oct. 7, 2022 Motion for Class Certification -- Plaintiffs' Reply to Oct. 24, 2022 Nov. 7, 2022 Defendants’ Opposition -- Hearing on Class Nov. 11, 2022 Dec. 2, 2022 Certification Motion Hyundai Motor, often abbreviated to Hyundai Motors and commonly known as Hyundai, is a South Korean multinational automotive manufacturer headquartered in Seoul, South Korea. Hyundai Motor Company was founded in 1967. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3zj4byX at no extra charge.[CC] IRONNET INC: Lead Plaintiff & Lead Counsel Named in Securities Suit ------------------------------------------------------------------- In the case, ADAM GRAD, on Behalf of Himself and All Others Similarly Situated, Plaintiff v. IRONNET, INC., et al., Defendants, Case No. 1:22-cv-00449 (RDA/JFA) (E.D. Va.), Judge Rossie D. Alston of the U.S. District Court for the Eastern District of Virginia, Alexandria Division, grants James Shunk's Motion to Appoint Counsel and Lead Plaintiff. I. Overview The matter comes before the Court on the outstanding Motions to Appoint Counsel and Lead Plaintiff. The Court has dispensed with oral argument as it would not aid in the decisional process. The matter has been fully briefed and is now ripe for disposition. Considering the Motions, including the supporting memorandum and related exhibits filed on behalf of Chris Riemer, the supporting memorandum and related exhibits, opposition brief, and reply brief on behalf of Roger Caroway, Shirley Guthrie, and Yong Kim ("CGK"), and the supporting memorandum and related exhibits, opposition brief, and reply brief on behalf of James Shunk, Judge Alston grnats Shunk's Motion and denies the Motions of both Riemer and CGK. II. Background The instant Complaint alleges that all the Defendants -- IronNet, Keith B. Alexander, James C. Gerber, and William E. Welch ("Individual Defendants") -- violated Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and SEC Rule 10b-5. The Complaint also alleges that the Individual Defendants violated Section 20(a) of the Exchange Act. The matter arises as a result of the Defendants' allegedly false and misleading statements and omissions with respect to all securities publicly offered by IronNet and purchased between Sept. 15, 2021 and Dec. 15, 2021 ("Class Period") by members of the putative class. IronNet is a cyber security services provider headquartered in McLean, Virginia. On Aug. 27, 2021, IronNet merged with a "blank check special purpose" acquisition company ("SPAC"), LGL Systems Acquisition Corp. ("LGL"). As a result of this de-SPAC transaction, IronNet became a publicly traded company on the New York Stock Exchange and issued, among other securities, common shares under the ticker symbol "IRNT." Ahead of the merger approval, on Aug. 10, 2021, IronNet revised its financial forecasts. But after IronNet began publicly trading its common shares, on Sept. 14, 2021, IronNet issued a press release announcing its quarterly financially results, which fell significantly short of its prior forecasts. Notwithstanding the suboptimal results, IronNet reaffirmed it was "on target" with its "first half guidance" and that "new customer momentum so far in the second half of its fiscal year is strong." The stock price climbed 38% immediately following that announcement. But on Dec. 15, 2021, after market close, IronNet altered its guidance in new customer acquisition due to unanticipated "government delays in getting funding through to federal budgets." The earnings call that followed revealed that IronNet had fired its Chief Revenue Officer and would reformulate its guidance methodology going forward. On Dec. 16, 2021, the common stock price dropped 31%. The Complaint alleges that the Defendants materially misled public IronNet investors by inflating the price of IronNet securities, issuing false and misleading statements and omitting material facts related to IronNet's adverse business and operations performance. On April 22, 2022, Plaintiff Grad filed the instant Complaint. That same day, the counsel for the Plaintiff caused a notice to be published over Globe Newswire pursuant to Section 21D(a)(3)(A)(i) of the Private Securities Litigation Reform Act of 1995 ("PSLRA"). On May 18, 2022, the Defendants moved for suspension of their response filing obligations pending the resolution of the appointment of a lead plaintiff and lead counsel in the matter, which the Court granted on May 20, 2022. On June 21, 2022, 60 days from the filing of the original Complaint as required by the PSLRA, the Court received five motions for appointment of lead plaintiff and lead counsel, accompanied by supporting memoranda and exhibits. The Court then issued a scheduling order requiring all responses to the initial motions by July 6, 2022, and all final replies to those responses by July 11, 2022. On July 5, 2022, the counsel for Riemer filed a notice acknowledging that Riemer did not appear to have the largest financial interest in the matter. Two of the other parties withdrew their motions. The counsel for CGK also filed a notice of correction as to Guthrie's loss chart to reflect her options trades made during the Class Period which resulted only in gains, decreasing her aggregate loss amount by $9,020. On July 6, 2022, CGK and Shunk each filed opposition briefs. On July 11, 2022, CGK and Shunk each filed replies as permitted by the Court's briefing order. III. Analysis A. Lead Plaintiff The PSLRA directs that the plaintiff with the "largest financial interest in the relief sought by the class" initially is to be considered the lead plaintiff, provided that such plaintiff satisfies the requirements of Federal Rule of Civil Procedure 23. The parties do not dispute that options securities are covered by the Complaint and therefore are treated in like manner with common stock losses in calculating each applicant's aggregate financial losses. As a result, Shunk's covered losses during the Class Period -- $776,722.50 -- represent the largest financial loss in the matter. Through counsel, Shunk has also moved to be appointed lead plaintiff. Therefore, he is the presumptive lead plaintiff so long as he (1) meets the other requirements of Rule 23 and (2) such presumption is not adequately rebutted. At this prima facie showing stage, Judge Alston opines that Shunk's claims appear mainstream and adequately represent the interests of the class. First, Shunk's trading behavior is not atypical of the class. Shunk incurred $64,016.00 in losses from the sale of common stock purchased during the Class Period. Moreover, the losses incurred from his sale of call options resulted from the same motivation as the sales made by common stockholders. Second, Shunk has preliminarily demonstrated himself to "not have interests that are adverse to the interests of the class." Shunk has also proposed lead and liaison counsel with a respectable track record handling securities and other complex civil litigation matters and, through briefing, has not demonstrated any questions as to his competency to serve as class representative. Rather, given the sheer magnitude of his losses, "there is no reason to believe that he or his counsel will not vigorously prosecute the action." Third, given that no other applicant has presented any specific evidence that Shunk's trading patterns were atypical or that Shunk's interests were adverse to the interests of the class, Shunk has satisfied the necessary showing that his service as a lead plaintiff meets the typicality and adequacy requirements of Rule 23. B. Lead Counsel Mr. Shunk seeks to appoint Bernstein Liebhard LLP as lead counsel and The Kaplan Law Firm as liaison counsel. In determining whether to grant such approval, the Court must consider: (1) 'the work counsel has done in identifying or investigating potential claims in the action'; (2) 'counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action'; (3) 'counsel's knowledge of the applicable law'; (4) 'the resources that counsel will commit to representing the class'; and (5) 'any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class.'" Bernstein and Kaplan have filed extensive briefings and supporting documentation in the matter. They have provided evidence of substantial experience in securities litigation and other complex civil litigation matters. And while Kaplan's expertise does not appear to focus entirely on securities litigation, its principal attorney has significant prior experience in litigating securities cases. Considering their combined expertise and already demonstrated commitment to the matter through its thoughtful briefing, Judge Alston will permit the appointment of Bernstein as the Lead Counsel and Kaplan as the Liaison Counsel in the matter. This position of trust that the Court has placed with counsel comes with an expectation of the highest standards of professionalism and effective advocacy. III. Conclusion Accordingly, Judge Alston grants the Motion to be appointed as the Lead Plaintiff by James Shunk. She denies the remaining motions by Riemer and CGK. Mr. Shunk is appointed to serve as the Lead Plaintiff pursuant to Section 21D(a)(3)(B) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78u-4(a)(3)(B), as amended by the Private Securities Litigation Reform Act of 1995, in the action. Mr. Shunk's selection of Lead Counsel is approved, and Bernstein Liebhard is appointed to serve as the Lead Counsel for the class. Mr. Shunk's selection of Liaison Counsel is also approved, and Kaplan Law is appointed to serve as the Liaison Counsel for the class. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, any pending subsequently filed, removed, or transferred actions that are related to the claims asserted in the action are consolidated for all purposes. The action will bear the caption "In re IronNet, Inc. Securities Litigation" and will be maintained under master file number No. 1:22-cv-00449-RDA-JFA. Within 14 days of the Order and Opinion, the counsel for the Lead Plaintiff and the Defendants will submit a proposed schedule for the filing of an amended complaint and the Defendants' responses thereto. The Clerk is directed to forward copies of the Order to the counsel of record and reflect the aforementioned updates to the docket, including making James Shunk a Plaintiff and revising the docket caption. A full-text copy of the Court's July 15, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/3e6ep28u from Leagle.com. JOHN HEATH: Seeks Leave to File Certain Exhibits Under Seal ----------------------------------------------------------- In the class action lawsuit captioned as JENNIFER MOORE, v. JOHN C. HEATH, ATTORNEY AT LAW, CONFIDENTIAL EXHIBITS PLLC d/b/a LEXINGTON LAW FIRM, et al., Case No. 2:21-cv-00027-TC-CMR (D. Utah), the Defendants John C. Heath, Progrexion Marketing, Inc., and eFolks Seek for Leave to File Under Seal portions of Plaintiff's Motion for Class Certification and certain exhibits. The Defendants have narrowly sought to protect the confidentiality of proprietary business and financial information that is deserving of such protection, and the public's interest in accessing the information, if any, is far outweighed by Defendants' interest in protecting the information from disclosure. Accordingly, the Court should grant this Motion and also give Plaintiff leave to file her Motion for Class Certification and Defendants' Confidential Exhibits under seal. A copy of the Defendants' motion dated July 7, 2022 is available from PacerMonitor.com at https://bit.ly/3cfWmki at no extra charge.[CC] The Defendants are represented by: James D. Gilson, Esq. Lyndon R. Bradshaw, Esq. DENTON DURHAM JONES PINEGAR P.C. 111 South Main Street, Suite 2400 PO Box 4050 Salt Lake City, UT 84111 Telephone: (801) 415-3000 Facsimile: (801) 415-3500 E-mail: james.gilson@dentons.com lyndon.bradshaw@dentons.com KELLOGG SALES: S.D. New York Grants Bid to Dismiss Russett Suit --------------------------------------------------------------- In the case, ELIZABETH RUSSETT, individually and on behalf of all others similarly situated, Plaintiff v. KELLOGG SALES COMPANY, Defendant, Case No. 7:21-cv-08572 (NSR) (S.D.N.Y.), Judge Nelson S. Roman of the U.S. District Court for the Southern District of New York grants Kellogg's motion to dismiss the Plaintiff's Complaint. I. Introduction Plaintiff Russett commenced the class action against global food manufacturer, Kellogg, individually and on behalf of all others similarly situated, alleging that Kellogg participated in deceptive business practices and/or false advertising by misrepresenting the amount of strawberries in its "Whole Grain Frosted Strawberry" Pop-Tarts through materially misleading labeling. Presently before the Court is Kellogg's Federal Rule of Civil Procedure 12(b)(6) and 12(b)(1)1 motion to dismiss the Plaintiff's Complaint. II. Background Kellogg, a Delaware corporation, is known as a pioneer of breakfast and snack foods, including Special K, Corn Flakes, Nutri-Grain Bars, BelVita, and Pop-Tarts. It manufactures, labels, markets, and sells "Whole Grain Frosted Strawberry Toaster Pastries" ("Frosted Strawberry Pop-Tarts" or "the Product") under its Pop-Tarts brand. The front label on the Product's packaging contains representations, including: (1) the words "Frosted Strawberry," (2) an image of half of a fresh strawberry, (3) an image of the Product depicting "the Product's bright red filling," and (4) the words "Made with Whole Grain." The Plaintiff alleges the representations are misleading because "the Product has less strawberries than consumers expect based on the labeling." She also alleges the Product's label is misleading because the Product "contains mostly non-strawberry fruit ingredients" such as dried pears, dried apples, and dried strawberries. The front label includes strawberries but does not include pears and apples, "even though the fine print of the ingredient list reveals the presence of more of these fruits than strawberries." It also fails to inform customers of the percentage of strawberries in the Product relative to pears and apples. The Plaintiff further alleges that the inclusion of vegetable juice and paprika extract for the red color in the Product further deceives consumers as to the strawberry content of the Product. The Plaintiff, a citizen of New York, has purchased the Product "on one or more occasions" at stores in New York between 2020 and 2021. She relied on the representation that the Product was made with whole grain, which she alleged was true, and claimed she had no reason to expect that the representation as to the amount of strawberries in the Product was not true. If she had known of the alleged misrepresentations, she would not have purchased the Product or would have paid less for it. The Plaintiff filed a class action Complaint on Oct. 19, 2021. She granted Defendant Kellogg leave to file a motion to dismiss on March 4, 2022. The Defendant then filed a motion to dismiss on May 19, 2022, pursuant to Federal Rule of Civil Procedure 12(b)(6), for an order dismissing the Plaintiff's Complaint for failure to state a claim on which relief can be granted. In the alternative, the Defendant moved for an order dismissing the Plaintiff's claim for injunctive relief for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1). The Plaintiff opposed the motion to dismiss. On May 26, 2022, the Defendant filed a notice of supplemental authority, informing the Court of a decision in Harris v. Kellogg Sales Co., No. 3:21-cv-1040 (S.D. Ill. May 24, 2022) in which the district court dismissed another putative class action filed by the Plaintiff's counsel challenging the labeling of Strawberry Pop-Tarts. III. Discussion The Plaintiff asserts claims for: (1) violations of N.Y. G.B.L. Sections 349 and 350; (2) violation of state consumer fraud acts; (3) breaches of express warranty, implied warranty of merchantability and the Magnuson Moss Warranty Act; (4) negligent misrepresentation; (5) common-law fraud; and (6) unjust enrichment. A. Plaintiff Fails to State a Claim under Sections 349 and 350 of the New York General Business Law. Kellogg only contests the plausibility of allegations that it made any materially misleading representations. Judge Roman agrees. The Plaintiff has failed to sufficiently plead that the front packaging is misleading. The Defendant argues that the representations on the front label are not misleading. In particular, Kellogg contends that (1) the front label does not represent that the Whole Grain Strawberry Pop-Tarts contain no fruits other than strawberries, that the filling consists predominantly of strawberries compared to other fruits, or that the filling includes strawberries; (2) all the term "strawberry" conveys is that the filling tastes like strawberries; (3) the statement that Whole Grain Strawberry Pop-Tarts are "Made With Whole Grain" has no bearing on whether the challenged "strawberry" representations are false or misleading; and (4) the red food coloring does not exaggerate the amount of strawberries in the filling. Judge Roman finds that no reasonable consumer would see the entire product label, reading the words "Pop-Tarts Whole Grain Frosted Strawberry" alongside a frosted strawberry pop-tart with sprinkles, and reasonably expect that fresh strawberries would be the sole ingredient in the Product. Similarly, the statement that Whole Grain Strawberry Pop-Tarts are "Made with Whole Grain" has no bearing on whether the challenged "Strawberry" representations are false or misleading. In addition, a reasonable consumer would not assume based on the packaging colors what the ingredients would be of the specific product. Therefore, the Plaintiff cannot plausibly allege that the red filling falsely implies the presence, absence, or specific amount of strawberries or any ingredient. For the reasons, Judge Roman finds as a matter of law that the Product's packaging would not have misled a reasonable customer. Accordingly, he finds that the Plaintiff has failed to adequately plead a materially misleading representation under GBL sections 349 and 350. B. Plaintiff's Other State Law Claims Must Be Dismissed Because She Has Failed to Plead that the Challenged Representations are Materially Misleading The Plaintiff also asserts claims for violation of state consumer fraud acts, breaches of express warranty, implied warranty of merchantability, and the Magnuson Moss Warranty Act, negligent misrepresentation, common-law fraud, and unjust enrichment. Each of these claims concern the same deceptive or misleading packaging as alleged in the Plaintiff's N.Y. General Business Law claims. Since the Plaintiff has not pleaded an underlying materially misleading representation, the other claims in the case, which hinge on the core theory of an alleged deceptive or misleading label on the Product, must also be dismissed. Courts in this District have taken this approach in lawsuits asserting the same or substantially similar claims after dismissing the GBL claims. Since all claims are dismissed, Judge Roman need not and does not reach Kellogg's other arguments. C. Plaintiff's Request for Leave to Amend Is Denied Based upon the front packaging, ingredients list, and reasoning set forth herein, Judge Roman believes that any amendment would be futile. Accordingly, the Plaintiff's request for leave to amend is denied. IV. Conclusion For the reasons he discussed, Judge Roman grants Defendant Kellogg's motion to dismiss the Complaint. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 14 and to close the case. A full-text copy of the Court's July 15, 2022 Opinion & Order is available at https://tinyurl.com/25k3r7re from Leagle.com. KEURIG GREEN: Class Action Settlement in Smith Gets Initial Nod --------------------------------------------------------------- In the class action lawsuit captioned as KATHLEEN SMITH, v. KEURIG GREEN MOUNTAIN, INC., Case No.4:18-cv-06690-HSG (N.D. Cal.), the Hon. Judge Haywood S. Gilliam, Jr. entered an order granting preliminary approval of class action settlement. The Plaintiff Smith brings this consumer class action against the Defendant Keurig, alleging that the Defendant's "recyclable" labeling on its plastic single-serve coffee pods is false and misleading. The Plaintiff alleges that despite the fact that "Defendant advertises, markets and sells the Products as recyclable," municipal recycling facilities are not properly equipped to handle the pods, which are small and "inevitably contaminated with foil and food waste." The Plaintiff contends that if she had known that the Products were not recyclable, she would not have purchased them, or would have paid less for them. Based on those facts, the complaint asserts the following causes of action: (1) breach of express warranty; (2) violations of California Consumers Legal Remedies Act ("CLRA"); (3) violations of California's Unfair Competition Law ("UCL") based on fraudulent acts and practices; (4) violations of the UCL based on unlawful acts; (5) violations of the UCL based on unfair acts and practices; and (6) unjust enrichment. The Plaintiff Smith initially filed this action in Alameda Superior Court in September 2018, but Procedural History Defendant removed the case to this Court. After Defendant moved to dismiss the complaint, Plaintiff filed a First Amended Complaint. The Court denied the motion in June 2019. On September 21, 2020, the Court granted Plaintiff's motion for class certification, certifying a class of persons who purchased the Product for personal, family, or household purposes in California. In the fall of 2020, Defendant unsuccessfully petitioned the Ninth Circuit for permission to appeal the Court's certification order. The Settlement Class is defined as: "All Persons in the United States who purchased Keurig’s Pods for personal, family or household purposes within the Class Period." A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3zj4ARZ at no extra charge.[CC] KNIGHTSBRIDGE MANAGEMENT: Conditional Certification Bid Filed ------------------------------------------------------------- In the class action lawsuit captioned as RONALD JOLLY, et al., On Behalf of Themselves and Other Similarly Situated, v. KNIGHTSBRIDGE MANAGEMENT, INC. DBA KNIGHTSBRIDGE RESTAURANT GROUP. et al., Case No. 1:21-cv-02163-TNM (D.D.C.), the Plaintiffs Ronald Jolly and Amir Ziagham, individually and on behalf of other similarly situated Tipped Employees that were employed by the Defendants file motion for Conditional Certification of a Collective Action and Notice to Potential Plaintiffs. The Plaintiffs seek to recover unpaid wages and associated damages under the Federal Fair Labor Standards Act of 1938 (FLSA), the D.C. Minimum Wage Act Revision Act of 1992 (DCMWA), and the D.C. Wage Payment and Collection Law (DCWPCL). The Defendants own and operate Rasika West End, LLC, an upscale Indian restaurant in the District of Columbia. The Plaintiffs and the putative collective worked for Rasika West as tipped employees. A copy of the Plaintiffs' motion dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3Pqfhay at no extra charge.[CC] The Plaintiffs are represented by: Michael K. Amster, Esq. ZIPPIN, AMSTER & GREENBERG, LLC 8757 Georgia Ave., Suite 400 Silver Spring, MD 20910 Telephone: (301) 587 9373 Facsimile: (240) 839 9142 E-mail: mamster@zagfirm.com KOCH FOODS: To Settle Broiler Chickens Antitrust Action for $15.5M ------------------------------------------------------------------ Top Class Actions report Koch Foods agreed to pay $15.5 million to resolve claims it violated antitrust laws to reduce the amount paid to growers of broiler chickens. The settlement benefits consumers or companies who were paid for broiler chickens grow-out services by Koch, other antitrust defendants and/or alleged co-conspirators between Jan. 27, 2013, and Dec. 31, 2019. Defendants in the case are Tyson, Pilgrim's Pride, Perdue Foods, Koch and Sanderson Farms. Alleged co-conspirators are Agri Stats, Foster Farms, Mountaire Farms, Wayne Farms, George's, Peco Foods, House of Raeford Farms, Simmons Foods, Keystone Foods Fieldale Farms, O.K. Industries, Case Foods, Marshall Durbin Companies, Amick Farms, Mar-Jac Poultry, Harrison Poultry, Claxton Poultry Farms and Norman W. Fries. According to a 2021 consolidated class action lawsuit, the defendants and alleged co-conspirators conspired together to reduce the amount they paid to chicken growers for broiler grow-out services. Broiler grow-out services including raising chickens for larger distributors to sell as broiler chickens in grocery stores. Farmers may raise their own chickens and then sell them to larger companies such as Tyson or Koch for processing. The multidistrict litigation surrounding broiler grow-out services claims the defendants in the case illegally worked together to universally pay farmers less for broiler grow-out services. As a result of companies' allegedly antitrust agreement, farmers and other chicken growers were allegedly denied the payments they would have received for broiler grow-out services in a fair market. "As part of the scheme, the cartel members illegally agreed to share detailed data on grower compensation with one another, with the purpose and effect of artificially depressing grower compensation below competitive levels," the antitrust class action lawsuit explains. "By disclosing their highly sensitive and confidential compensation rates to each other, they suppressed competition for broiler grow-out services and drove down compensation to all growers." Koch hasn't admitted any wrongdoing but agreed to pay $15.5 million to resolve these claims. Several other chicken processors, including Tyson, agreed to pay a combined $181 million to resolve similar allegations last year. Under the terms of the settlement, class members can collect a cash payment based on the total payments they received from Koch, other defendants and co-conspirators. Each payment will represent a proportional share of the settlement fund. Class members who received a large share of the total payments included in the settlement will receive a larger share of the settlement fund. The deadline for exclusion and objection is Sept. 23, 2022. The final approval hearing for the settlement is scheduled for Oct. 28, 2022. Claim forms are only required in certain circumstances in order to receive a payment from the settlement. Chicken growers who received a pre-populated claim form do not have to do anything to receive a payment. However, those who believe their pre-populated form needs to be disputed or corrected may dispute their projected settlement payments by submitting a corrected claim form by Feb. 6, 2023. Class members who received an unpopulated claim form must complete the form and submit it along with the required documentation and/or answers on the form no later than Feb. 6, 2023. The case is styled, In re Broiler Chicken Grower Antitrust Litigation No. II, Case No. 6:20-md-02977-RJS-CMR, in the U.S. District Court for the Eastern District of Oklahoma. On the Web: https://www.BroilerGrowersAntitrustSettlement.com Claims Administrator: In re Broiler Chicken Grower Antitrust Litigation (Koch Settlement) c/o Settlement Administrator 1650 Arch Street, Suite 2210 Philadelphia, PA 19103 Info@BroilerGrowersAntitrustSettlement.com Tel: 833-907-3700 Class Counsel: Eric L. Cramer, Esq. BERGER MONTAGUE PC 1818 Market St Suite 3600 Philadelphia, PA 19103 Tel: 215-875-3009 Fax: 702-995-4658 E-mail: ecramer@bm.net - and - Melinda R Coolidge, Esq. HAUSFELD LLP 888 16th St NW Suite 300 Washington, DC 20006 Tel: 202-540-7144 E-mail: mcoolidge@hausfeld.com - and - Gary I. Smith Jr. HAUSFELD LLP 325 Chestnut St Unit 900 Philadelphia, PA 19106 Tel: 267-702-2318 E-mail: gsmith@hausfeld.com Defendant's Counsel: Scott W Pedigo, Esq. BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ PC One Eastover Center 100 Vision Drive, Suite 400 Jackson, MS 39211 Tel: 601-351-2400 Fax: 601-351-2424 E-mail: spedigo@bakerdonelson.com - and - Russell W Gray, Esq. BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ PC 633 Chestnut Street, Suite 1900 Chattanooga, TN 37450 Tel: 423-756-2010 Fax: 423-756-3447 E-mail: rgray@bakerdonelson.com [GN] LANDMARK REALTY: Court Tosses Cheatem Bid for Class Certification ----------------------------------------------------------------- In the class action lawsuit captioned as RHONDA CHEATEM v. LANDMARK REALTY OF MISSOURI, LLC, Case No. 20-00958-CV-W-BP (W.D. Mo.), the Hon. Judge Beth Phillips entered an order denying plaintiff's motion for class certification of: "Individuals who, since April 13, 2015, were required to pay a payment labeled "security deposit" to submit an application to lease one of Landmark's Missouri residential properties, and such payment was deemed non-refundable if the application was not canceled within 48 [hours] of payment, and such payment was retained, in whole or part, by the Defendant after the prospective tenant's application was either withdrawn or denied." The Court said, "The Plaintiff applied to rent an apartment from Defendant, but her application was denied. She then filed suit, asserting claims based on Defendant’s charging of certain fees in connection with her application. Now pending is Plaintiff’s Motion for Class Certification, which seeks to certify a class of plaintiffs with respect to Counts I and III. However, in a separate Order issued today, the Court granted Defendant summary judgment with respect to Count III (and Counts II and IV, which are not at issue with respect to the Motion to for Class Certification). Therefore, the Court has limited its analysis in this Order to Count I; having done so, the Motion for Class Certification, is denied." A copy of the Court's order dated July 1, 2022 is available from PacerMonitor.com at https://bit.ly/3c80jre at no extra charge.[CC] LEE HECHT: Final Approval of Class Action Settlement Sought ----------------------------------------------------------- In the class action lawsuit captioned as KATHLEEN B. LATHAM, an individual, on behalf of herself and all other similarly situated current and former employees, v. LEE HECHT HARRISON LLC and DOES 1 through 100, inclusive, Case No. 8:20-cv-01769-DOC-JDE (C.D. Cal.), the Plaintiff asks the Court to enter an order granting motion for final approval of class action settlement pursuant to Federal Rule of Civil Procedure 23. LHH is a global provider of talent acquisition and job recruitment solutions. A copy of the Plaintiff's motion dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3IMFb6f at no extra charge.[CC] The Plaintiff is represented by: Mark C. Thomas, Esq. LAW OFFICE OF MARK C. THOMAS, APC 555 Montgomery Street San Francisco, CA 94111 Telephone: (415) 986-1338 E-Mail: mark@mctlawoffice.com - and - James C. Pettis, Esq. PETTIS LAW FIRM LLP 1604 Aviation Blvd Redondo Beach, CA 90278 Telephone: (213) 545-6448 Facsimile: (213) 816-1966 E-Mail: jimpettis@pettislawfirm.com MADISON AVENUE: Conditional Class Certification Granted in Part --------------------------------------------------------------- In the class action lawsuit captioned as CHANG SOO HAN on behalf of himself and all others similarly situated, v. MADISON AVENUE REALTIES, LLC, EDWARD EDEN, Case No. 1:22-cv-00382-LJL (S.D.N.Y.), the Hon. Judge Lewis J. Liman entered an order granting in part and denying in part the Plaintiff's conditional certification of this case as a collective action on behalf of all non-exempt building maintenance employees of Madison Avenue Realties. The Plaintiff brought this action under the Fair Labor Standards Act (FLSA), and the New York Labor Law (NYLL) against the defendants Madison Avenue and its president Edward Eden. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3aUt8qP at no extra charge.[CC] MATRIX ABSENCE: Weeks, et al., Seek to Certify Class of Examiners ----------------------------------------------------------------- In the class action lawsuit captioned as Tina Weeks, Michael McDonald, and Cassandra Magdaleno, individually and on behalf of others similarly situated, v. Matrix Absence Management, Inc., an Arizona Company, Case No. 2:20-cv-00884-SPL (D. Ariz), the Plaintiffs ask the Court to enter an order: 1. certifying a class under Rule 23 consisting of the following: "All individuals employed by Matrix in Oregon as "Telephone Claims Examiners" from May 6, 2018 to the Present through final disposition of this Action. The "Telephone Claims Examiners" include individuals who worked in the following positions: Claims Examiner-LOA; Claims Examiner-STD; or Claims Examiner-AMS, including all levels (I, II, or Senior);" and 2. appointing Plaintiffs' counsel to serve as Class Counsel. Matrix Absence provides absence management services. The Company offers workers compensation, voluntary, and long and short term disability. A copy of the Plaintiffs' motion to certify class dated July 6, 2022 is available from PacerMonitor.com at https://bit.ly/3ce5FBg at no extra charge.[CC] The Plaintiffs are represented by: Jack Siegel, Esq. CLIFFORD P. BENDAU, II The Bendau Law Firm, PLLC P.O. Box 97066 Facsimile: (480) 382-5176 Telephone: (480) 382-5176 E-mail: cliffordbendau@bendaulaw.com - and - Travis M. Hedgpeth, Esq. The Hedgpeth Law Firm, PC 3050 Post Oak Blvd., Suite 510 Houston, TX 77056 Telephone: (281) 572-0727 E-mail: travis@hedgpethlaw.com - and - Jack L. Siegel, Esq. SIEGEL LAW GROUP PLLC www.4overtimelawyer.com 4925 Greenville, Suite 600 Dallas, TX 75206 Telephone: (214) 790-4454 MHC HERITAGE: Denial of Evidence Preclusion in Noel Suit Endorsed ----------------------------------------------------------------- In the case, MICHAEL NOEL, KATHLEEN WIKSTEN, and CLAIRE LADOUCEUR, Plaintiffs v. MHC HERITAGE PLANTATION, LLC, et al., Defendants, Case No. 21-14492-CIV-MIDDLEBROOKS/MAYNARD (S.D. Fla.), Magistrate Judge Shaniek M. Maynard of the U.S. District Court for the Southern District of Florida recommends that the Motion to Preclude Use of Evidence and Limit Damages be denied. The Motion is filed by Defendants, MHC Heritage Plantation, LLC and Equity Lifestyle Properties, Inc. ("ELS"). I. Background On Dec. 21, 2021, the Plaintiffs filed a Class Action Complaint alleging that the Defendants have failed to provide the Plaintiffs and other similar situated mobile homeowners residing at Heritage Plantation mobile home park with essential services for their homes, including paved streets, sewer lines, and, when it rains, an adequate storm drainage system. The Plaintiffs allege that this failure has caused them to sustain personal injuries and property damage, and they assert claims for breach of contract, breach of the covenant of quiet enjoyment, negligence, private nuisance, and trespass. On May 6, 2022, the Plaintiffs amended their complaint and added three new Defendants to this action. DE 49. Defendants have all filed answers with general denials and affirmative defenses. Fact discovery is now closed. Expert discovery is ongoing and is expected to be completed by the recently-extended deadline of Oct. 31, 2022. The Plaintiffs have filed a revised motion for class certification, which remains pending. The case is presently set for trial during the two-week trial period beginning Jan. 3, 2023. Defendant MHC Heritage owns Heritage Plantation mobile home park, and Defendant ELS operates it. In the instant Motion, these two Defendants seek to preclude the Plaintiffs from (i) relying on any witness not included in the Plaintiffs' Rule 26(a)(1) initial disclosures served on April 18, 2022; (ii) using any evidence not disclosed therein; and (iii) seeking damages for personal property and other categories of economic losses. These Defendants also ask the Court to lift any restriction on the Defendants' right to communicate with the putative class members. In support of these requests, the Defendants maintain that the Plaintiffs' initial disclosures were "materially and prejudicially" non-compliant in that, among other things, they included only the three named Plaintiffs despite the complaint's allegations regarding numerous other homeowners and because Plaintiffs failed to disclose any meaningful computation of damages sought. The Plaintiffs counter that the Defendants failed to meaningfully confer in good faith on this issue and, in any regard, the issue is now moot. Plaintiffs maintain that within days of being alerted by the Defendants to a potential issue with the initial disclosures, the Plaintiffs served supplemental disclosures on Friday, April 22, 2022. The Plaintiffs' supplemental disclosures identify over 70 individuals and the Plaintiffs contend that 800 pages of relevant questionnaires and other discoverable documents were also provided to the Defendants. Regarding damages, the Plaintiffs contend that their class certification motion suggests that certain damages may be calculated by experts relying on the Defendants' documents and certain other damages need not be precisely computed as part of Rule 26 disclosures. The Plaintiffs attach an affidavit by their counsel, Lynn Ellenberger, which provides an overview of the pertinent events and includes an attached exchange of emails among counsel together with a copy of the Plaintiffs' supplemental disclosures. In their Reply, Defendants MHC Heritage and ELS maintain that the Plaintiffs initial disclosures were "inexcusably non-compliant" and that the supplemental disclosures fare no better. These Defendants assert that the Plaintiffs continue to disclose witnesses on a rolling basis and have still failed to provide any damages computation. The Defendants argue that the Plaintiffs' failure to timely provide complete initial disclosures is "gamesmanship" that "significantly impedes the Defendants' preparation of their defenses and their response to class certification, which imposes unreasonable prejudice on them." II. Discussion Federal Rule of Civil Procedure 26 imposes disclosure and discovery obligations on litigants in a lawsuit. Rule 26(a) governs required disclosures, which lists information that "a party must, without awaiting a discovery request, provide to the other parties." The "party who is alleged to have failed to comply with Rule 26 bears the burden to show that its actions were substantially justified or harmless." Courts consider "the non-disclosing party's explanation for its failure to disclose, the importance of the information, and any prejudice to the opposing party if the information had been admitted. Judge Maynard finds that the Defendants prematurely filed their motion without abiding by the letter and spirit of the Local Rules' good faith conferral requirement. He does not find a substantial delay or inexplicable failure by the Plaintiffs to comply with Rule 26's disclosure requirements as required to impose the extreme sanctions sought by the Defendant. In addition, Judge Maynard finds that the Defendants have not articulated sanctionable prejudice. At the time the Motion was filed, the parties were engaged in discovery and the record reflects a flurry of activity relating to the issue of class certification. That class certification motion has since been revised and is now fully briefed. There is no sign that the Defendants have been hampered or prejudiced in their ability to defend the case. Despite the premature nature of instant Motion, on the issue of disclosing damage computations, Judge Maynard finds that the Defendants' position has some merit. The Defendants seek to prohibit the Plaintiffs from presenting evidence or argument of certain categories of damages on grounds that the Plaintiffs have failed to provide the required computation under Rule 26(a)(1)(A)(iii). In response, the Plaintiffs assert that their pending class certification motion suggests that certain damages will require experts relying on Defendants' documents and precise computation under Rule 26 is not required for emotional distress damages. Judge Maynard is not persuaded by the Plaintiffs' response on this issue. Rule 26 clearly requires parties to affirmatively disclose "a computation of each category of damages claimed" together with supporting material. Notwithstanding the contents of their class certification motion, he finds that the Plaintiffs have a basic, continuing obligation to provide a computation of damages sought to the best of their ability, which can be supplemented as needed as the case progresses. A wholesale prohibition on the Plaintiffs' presentation of damages as requested by the Defendants is not warranted. However, to the extent the Plaintiffs have not yet complied with Rule 26's requirement to disclose damage computations, Judge Maynard recommends that they be required to do so. III. Conclusion Based on the foregoing, Judge Maynard respectfully recommends that the Motion to Preclude Use of Evidence and Limit Damages be denies as follows. The Defendants' request to preclude the Plaintiffs from presenting witness testimony and other evidence not included in the Plaintiffs' Rule 26 disclosures is unwarranted and should be denied. The Defendants' request to preclude evidence or argument concerning damages should be denied without prejudice and, to the extent not already provided, the Plaintiffs should be ordered to (1) provide to the Defendants supplemental disclosures with damage computations and supporting materials in compliance with Rule 26(a)(1)(A)(iii) within five days of any Order on the Report and Recommendation or sooner, and (2) promptly file a notice of compliance confirming that this has been done. The parties will have 14 days from the date of being served with a copy of the Report and Recommendation within which to file written objections, if any, with U.S. District Judge Donald M. Middlebrooks. Failure to timely file objections will bar the parties from a de novo determination by the District Judge of an issue covered in the Report and Recommendation and will bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report and Recommendation. Conversely, if a party does not intend to object to the Report and Recommendation, then that party will file a Notice of such within five days of the date of this Report and Recommendation. A full-text copy of the Court's July 15, 2022 Report & Recommendation is available at https://tinyurl.com/2p96h3xx from Leagle.com. MIKE PIMPINELLI: Wilcox Class Cert. Bids Denied w/o Prejudice ------------------------------------------------------------- In the class action lawsuit captioned as WILCOX v. PIMPINELLI, Case No. 2:21-cv-02063 (D.N.J.), the Hon. Judge Edward S. Kiel entered an order that the plaintiff's two motions for class certification, respectively dated May 31, 2022 and June 22, 2022, have been filed prematurely, are denied without prejudice. The nature of suit states Prisoner Petitions -- Habeas Corpus -- Civil Rights.[CC] MINNEAPOLIS, MN: Lowry Suit Remanded to Hennepin County State Court ------------------------------------------------------------------- In the case, KIMBERLY LOWRY, on behalf of herself and the proposed Rule 23 classes, Plaintiff v. CITY OF MINNEAPOLIS, a municipal corporation; MINNEAPOLIS PUBLIC HOUSING AUTHORITY, in and for the City of Minneapolis, a body corporate and politic; and COMMUNITY HOUSING RESOURCES, a nonprofit corporation, Defendants, Case No. 21-CV-2189(PJS/TNL) (D. Minn.), Judge Patrick J. Schiltz of the U.S. District Court for the District of Minnesota grants the Plaintiff's motion to remand and remands the action to the District Court for the Fourth Judicial District, County of Hennepin, State of Minnesota. I. Introduction After allegedly enduring substandard living conditions in Minneapolis public housing, Plaintiff Lowry brought the putative class action in Minnesota state court against defendants Minneapolis Public Housing Authority and Community Housing Resources (collectively, "the Authority") and against Defendant City of Minneapolis. The Authority removed the action to the Court. Although each of Lowry's causes of action arises under state law, the Authority nevertheless contends that the Court has federal-question jurisdiction because Lowry's claims necessarily raise a substantial issue of federal law: Specifically, whether a federally funded public-housing authority must comply with local rental-licensing requirements. The matter is before the Court on Lowry's motion to remand to state court. II. Background The Authority is the largest public-housing authority in Minnesota, owning or managing over 6,000 residential units (predominantly in Minneapolis) and providing housing to about 10,500 residents. Most of the Authority's funding comes from the United States Department of Housing and Urban Development ("HUD"). Ms. Lowry alleges that the Authority's housing is subject to a number of federal, state, and local requirements. Federal regulations require the housing to be "decent, safe, sanitary and in good repair." Those same regulations expressly "do not supersede or preempt State and local codes for building and maintenance with which HUD housing must comply"; rather, "HUD housing must continue to adhere to these codes." Further, under Minnesota law, an Authority project is "subject to the planning, zoning, sanitary, and building laws, ordinances, and regulations applicable to the locality in which the project is situated." And the Housing Maintenance Code (the "HMC"), which is part of the Minneapolis Code of Ordinances, imposes multiple safety and maintenance standards on dwellings located in Minneapolis. The HMC also imposes licensing and inspection requirements on rental properties. The owner of a rental property (with some exceptions not relevant here) must obtain a license for the property before renting it. A rental-license holder must pay an annual licensing fee. And a City inspector must inspect a rental property before that property may be licensed. Ms. Lowry has been a tenant in the same Authority property for over a decade. She pays monthly rent to the Authority and complies with her other obligations. The Authority made several promises in her lease about the quality of her living space, including that the Authority would "comply with applicable building codes, housing codes and HUD regulations materially affecting health and safety" and "maintain in good and safe working condition all electrical, plumbing, heating, ventilation, sanitary and other facilities, appliances and elevators supplied or required to be supplied by the Authority." According to Lowry, the Authority has not lived up to its promises. "Through no fault of her family or of her own," Lowry alleges, her unit has "damaged and loose vinyl asbestos floor tile," a washing machine "installed in front of the electrical service box," "peeling paint," and a basement that "has flooded multiple times." Lowry has reported these problems to the Authority, but the Authority has "been slow" to repair her unit, "if at all." Ms. Lowry also sought help from the City's 311 System, through which "tenants in the City can contact the City to submit housing condition complaints and request the City conduct inspections." But City officials told Lowry that, because she lived in Authority housing, the City could not help. What is more, Lowry alleges, the City permits the Authority to operate its rental units without obtaining licenses or undergoing City inspections, even though the City enforces those requirements for other, privately owned rental properties. Ms. Lowry's complaint asserts six counts: one against the City, three against the Authority, and two against both. Against the City: Count I alleges that the City has violated the Minnesota Human Rights Act by discriminating against recipients of public assistance -- namely, by not providing licensing and inspection services to public-housing tenants despite providing such services to tenants in privately owned properties. Count III seeks an order under HMC art. I, Section 244.80, compelling the City to enforce the HMC with respect to the Authority's properties. And Count VI alleges that the City violated the Minnesota Deceptive Trade Practices Act by "creating confusion or misunderstanding" over what services the City's 311 System would provide to public-housing tenants. Against the Authority: Count II alleges that the Authority has breached its lease obligations by not maintaining its units and not complying with applicable housing laws. Count III seeks an order under HMC art. I, Section 244.80, compelling the Authority to comply with the HMC. Count IV alleges that the Authority has breached the covenant of habitability (incorporated into all residential leases by virtue of a Minnesota statute) by failing to comply with the HMC. Count V alleges that the Authority has violated the Minnesota Consumer Fraud Act by operating unlicensed rental properties, by falsely representing that it would comply with applicable housing laws, and by falsely representing that it would maintain its units in decent, safe, and sanitary condition. Finally, Count VI alleges that the Authority has violated the Minnesota Deceptive Trade Practices Act, essentially for the reasons given in Count V. Ms. Lowry brought the action in state court, naming as putative classes several groups of the Authority's tenants. After the Authority and the City filed their answers, the Authority removed the action to federal court under 28 U.S.C. Section 1441(a), 1453(b), and 1446. The Authority argues that this Court has federal-question jurisdiction under 28 U.S.C. Section 1331. Specifically, the Authority contends that Lowry's complaint necessarily raises a federal issue -- that issue being whether 24 C.F.R. Section 5.703(g) (the federal regulation requiring public-housing authorities to comply with state and local building and maintenance codes) requires the Authority to purchase rental licenses in accordance with the HMC. Lowry argues that the Court does not have subject-matter jurisdiction and moves to remand her case to state court. III. Analysis A. The Authority's Asserted Federal Issue The Authority argues that this Court has federal-question jurisdiction over Lowry's complaint for two reasons. First, the Authority argues that Lowry must prove, as an element of her claims, that a federal statute or regulation requires the Authority to comply with Minneapolis' rental-licensing scheme. Second, the Authority argues that, even if Lowry is not required to prove the existence of such a statute or regulation, Lowry's claims nevertheless require the Court to resolve a substantial question of federal law. A. The Authority Identifies a Preemption Defense, Not a Claim Element 1. The Authority Identifies a Preemption Defense, Not a Claim Element The Authority's first argument relies on United States v. City of St. Paul, in which the Eighth Circuit held that applying St. Paul's nuisance-abatement code to federal public housing would "impermissibly interfere with the operation of the National Housing Act." In reaching its conclusion, the Eighth Circuit explained that "the activities of federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides 'clear and unambiguous' authorization for such regulation." According to the Authority, City of St. Paul establishes that local ordinances cannot be enforced against federally funded public-housing authorities unless a federal statute so authorizes.5 As a result, the Authority argues, Lowry must prove -- as part of her case-in-chief -- that a federal statute explicitly authorizes the enforcement of Minneapolis's rental-license regulations against the Authority. Judge Schiltz holds that the Authority's premises are flawed. First, City of St. Paul was addressing a defense -- the defense of preemption -- not the elements of a claim. Second, even if the Authority were correct that Lowry bears the burden of proving that her claim is not preempted by federal law, what matters is not who bears the burden of proof on a single "federal element," but whether federal law creates the right to relief. At bottom, the Authority has raised a classic preemption defense, and the Supreme Court has been clear that a defendant does not create federal-question jurisdiction by raising a preemption defense to a state-law claim. Ms. Lowry filed a state-court action based solely on state and local laws, contending that the Defendants broke those laws and breached their contracts. The Authority removed the case to federal court on the ground that, under the Supremacy Clause, the state and local laws were preempted by federal law. It was the Authority, not Lowry, who injected a federal question into the action. 2. Lowry's Complaint Does Not Necessarily Raise a Federal Issue The Authority's second argument -- an appeal to the Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005), line of cases -- is similarly unavailing, Judge Schiltz holds. In Grable, the Supreme Court acknowledged that "in certain cases federal-question jurisdiction will lie over state-law claims that implicate significant federal issues." The Supreme Court has not clearly demarcated the boundaries of this category of cases, but the Court has emphasized that the category is "special and small" and "slim." The Authority is mistaken, Judge Schiltz finds. Broadly speaking, each count in Lowry's complaint alleges that a defendant should be held liable because the defendant did not do a bunch of things that it was required to do under state and local law. The Authority's failure to obtain rental licenses is one of those things, but it is never the only thing. Hence, Lowry can obtain relief on every count even if she cannot prove that the Authority was required to obtain rental licenses. She can do so by proving (a) that the City discriminated on the basis of public-assistance status in its inspection practices (Count I); (b) that the Authority did not comply with numerous provisions of the HMC regarding the maintenance of rental housing (Counts II-VI); (c) that the City failed to enforce those maintenance provisions of the HMC (Count III); and (d) that the City's conduct created confusion or misunderstanding about its 311 System (Count VI). In short, the Court can grant relief to Lowry on every count in her complaint without deciding whether federal law preempts the HMC's requirement that the Authority obtain rental licenses for its properties. The case therefore does not fall within the "small" category of cases described by Grable. IV. Conclusion Judge Schiltz concludes that the licensing issue cited by the Authority is a preemption defense, not an element of a claim, and the issue does not meet the strict requirements for triggering federal-question jurisdiction under Grable. Thus, the Court does not have subject-matter jurisdiction, and the case must be remanded to state court. For these reasons, Judge Schiltz grants the Plaintiff's motion to remand. He remands the action to the District Court for the Fourth Judicial District, County of Hennepin, State of Minnesota. Judge Schiltz orders that Judgment be entered accordingly. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/2p8e9j95 from Leagle.com. Anna P. Prakash -- aprakash@nka.com -- and Nicole Schladt -- nschladt@nka.com -- NICHOLS KASTER, PLLP; John R. Shoemaker and Paul F. Shoemaker, SHOEMAKER & SHOEMAKER, P.L.L.C.; Lawrence McDonough, LARRY McDONOUGH, ESQ., for the Plaintiff and the putative classes. Tracey N. Fussy and Sharda Enslin, MINNEAPOLIS CITY ATTORNEY'S OFFICE, for Defendant City of Minneapolis. Suzanne L. Jones -- sljones@grsm.com -- Benjamin R. Kinney -- bkinney@grsm.com -- and Anthony B. Corleto -- tcorleto@grsm.com -- GORDON REES SCULLY MANSUKHANI LLP; Kenneth H. Bayliss, QUINLIVAN & HUGHES, P.A., for Defendants Minneapolis Public Housing Authority and Community Housing Resources. NATIONAL PACKAGING: Settlement Gets Final Approval in Guzman ------------------------------------------------------------ In the class action lawsuit captioned as Guzman v. National Packaging Services Corporation, Case No. 19-cv-1722-pp (E.D. Wisc.), the Hon. Judge Pamela Pepper entered an order: 1. granting joint motion for final settlement approval; 2. granting petition for attorneys' fees and class representative incentive awards; 3. denying motion to seal; 4. directing the plaintiffs to file a redacted version of the spreadsheet and dismissing case. The Plaintiff Libna Guzman filed a collective and class action on behalf of herself and similarly situated hourly production employees who worked at the NPS production facilities in Wisconsin. Magistrate Judge William Duffin facilitated resolution of the case, and once the parties had filed their joint motion for a collective and class settlement and supporting brief, the court granted the motion for preliminary approval of the settlement, dkt. The court scheduled a fairness hearing for June 2, 2022 at 9:30 a.m., id., but the plaintiffs asked the court to reschedule it to give them additional time to complete their calculations allocating the settlement fund to the class members. The court granted the motion and rescheduled the hearing to July 6, 2022. National Packaging manufactures miscellaneous converted paperboard products. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3Pl94x3 at no extra charge.[CC] NATIONSTAR MORTGAGE: Appeals Remand Ruling in Kushner Suit ---------------------------------------------------------- NATIONSTAR MORTGAGE, LLC is appealing a court ruling remanding the lawsuit styled Paul Kushner, individually and on behalf of all others similarly situated v. Nationstar Mortgage LLC d/b/a Mr. Cooper, Case No. 1:22-cv-00598 to the Cuyahoga County Court of Common Pleas from the U.S. District Court for the Northern District of Ohio at Cleveland. The dispute is centered on the Plaintiff's allegations that Nationstar charged improper fees related to his residential mortgage. Specifically, the Plaintiff alleges Nationstar charged improper "Third Party Reconveyance Preparation Fees" or "Third Party Reconveyance/Release Preparation Fees" that were "not limited to actual payments to any third parties," as well as "County Recording Fees" in excess of the actual amount of fees paid to the government (collectively, the "Fees"). He brings one cause of action under Ohio Rev. Code Section 5301.36(B). He brings the action on behalf of himself and a class of individuals, who were similarly charged these Fees. The Plaintiff filed his class action complaint in the Cuyahoga County Common Pleas Court on March 7, 2022. On March 28, 2022, he filed an Amended Complaint in the same court. On April 13, 2022, Nationstar timely removed this case to federal court pursuant to the Class Action Fairness Act ("CAFA"). In its notice of removal, Nationstar stated that it satisfied the CAFA removal requirements because the parties are minimally diverse, there are at least 100 class members, and the amount in controversy exceeds $5 million. On April 14, 2022, the Plaintiff moved to remand his case to the Cuyahoga County Court of Common Pleas for want of subject matter jurisdiction, pursuant to 28 U.S.C. Section 1447(c). Nationstar filed an opposition on April 28, 2022, and the Plaintiff replied on May 2, 2022. Nationstar then filed a Motion to Dismiss on May 12, 2022. The Court granted Plaintiff's request to withhold opposing the Motion to Dismiss until the Motion to Remand was resolved. As reported in the Class Action Reporter on July 11, 2022, Judge Bridget M. Brennan of the U.S. District Court for the Northern District of Ohio granted the Plaintiff's motion to remand to state court. The appellate case is captioned as In re: Nationstar Mortgage, LLC, Case No. 22-0306, in the United States Court of Appeals for the Sixth Circuit, filed on July 5, 2022.[BN] Defendant-Petitioner In re: NATIONSTAR MORTGAGE, LLC, dba Mr. Cooper, is represented by: Matthew Allen Fitzgerald, Esq. Mcguirewoods 800 E. Canal Street Richmond, VA 23219 Telephone: (804) 775-4716 - and - K. Issac deVyver, Esq. Mcguirewoods 260 Forbes Avenue, Suite 1800 Pittsburgh, PA 15222 Telephone: (412) 667-7988 Plaintiff-Respondent PAUL KUSHNER, individually and on behalf of all others similarly situated, is represented by: Brian Ruschel, Esq. 925 Euclid Avenue, Suite 660 Cleveland, OH 44115-0000 Telephone: (216) 621-3370 E-mail: bruschel@aol.com NEW YORK UNIVERSITY: De Leon Seeks Reconsideration of June 22 Order ------------------------------------------------------------------- In the class action lawsuit captioned as NELCY GARCIA DE LEON, individually and on behalf of all others similarly situated, v. NEW YORK UNIVERSITY, Case No. 1:21-cv-05005-CM-SDA (S.D.N.Y.), the Plaintiff asks the Court to enter an order granting reconsideration of the Decision and Order of June 22, 2022 denying the Plaintiff's Motion for Class Certification and dismissing Plaintiff's Class Action Complaint containing allegations for breach of contract, and unjust enrichment on the basis that there is a need to correct clear error of law or prevent manifest injustice. New York University is a private research university in New York City. Chartered in 1831 by the New York State Legislature, NYU was founded by a group of New Yorkers led by then-Secretary of the Treasury Albert Gallatin. A copy of the Plaintiff's motion dated July 6, 2022 is available from PacerMonitor.com at https://bit.ly/3RWZNwX at no extra charge.[CC] The Plaintiff is represented by: Blake G. Abbott, Esq. Roy T. Willey, IV, Esq. Eric M. Poulin, Esq. Paul Doolittle, Esq. ANASTOPOULO LAW FIRM, LLC 32 Ann Street Charleston, SC 29403 Telephone: (843) 614-8888 E-mail: blake@akimlawfirm.com roy@akimlawfirm.com eric@akimlawfirm.com paul@akimlawfirm.com - and - Edward Toptani, Esq. TOPTANI LAW, PLLC 375 Pearl Street, suite 1410 New York, NY 10038 Telephone: (212) 699-8930 E-mail: edward@toptanilaw.com NEW YORK, NY: $2.6-Mil. in Attorneys' Fees Awarded in Grottano Suit ------------------------------------------------------------------- In the case, DANA GROTTANO, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants, Case No. 15 CV 9242 (RMB) (S.D.N.Y.), Judge Richard M. Berman of the U.S. District Court for the Southern District of New York issues Decision & Order: a. awarding to the Class Counsel the total amount of $2.6 million in attorneys' fees; b. awarding $10,574.94 in expenses; an additional $998.88 may be awarded, subject to the Class Counsel providing supporting documentation; and c. ordering and directing the Class Counsel to reimburse and/or share with the Defendants one half (50%) of the total amount of claims administration fees paid or to be paid to the Claims Administrator in excess of $500,000. I. Introduction The Decision & Order resolves the Plaintiffs' Motion for Attorneys' Fees and Expenses, dated Sept. 21, 2021, seeking $4.5 million plus $14,651.48 in expenses; and the Defendants' Cross Motion for Reimbursement of Administrative Costs, dated Oct. 8, 2021, seeking "reimbursement from the Class Counsel's attorneys' fees for the amount paid to the Claims Administrator" in excess of $500,000. II. Background A. Motion for Attorneys' Fees and Expenses The parties' settlement agreement, dated June 20, 2019, provides for distribution of a $12.5 million settlement fund to the class members who were subjected to invasive searches when visiting New York City Department of Correction ("DOC") facilities between Nov. 23, 2012 and Oct. 30, 2019. The Settlement Agreement also includes an injunction against the DOC which requires changes to DOC visitor search protocols, including a two-year period of oversight of DOC visitor searches by the Class Counsel. The Settlement Agreement also provides that "each eligible claimant will receive a minimum of $1,000, unless they are part of the sub-category of individuals who were found with contraband during their visit to a DOC facility," in which case "they will receive $500." See Stipulation Modifying the Class Action Settlement Agreement, dated Apr. 22, 2021 ("Settlement Modification"). The settlement checks were mailed to all class members in early 2022. As detailed in the Court's Nov. 29, 2021 Decision and Order, the Defendants also advised the Court that they have implemented the injunctive relief by, among other things, revising DOC "policies and procedures concerning searches of visitors to DOC facilities" and "training materials regarding visitor searches." DOC has also revised its visitor "pat-frisk poster" which is "prominently placed in all visit areas, so that visitors know what to expect if they consent to a pat-frisk search." During the oversight period, which began on Nov. 29, 2021, the "Class Counsel is permitted to visit every DOC facility twice with a DOC legal escort," and "observe up to six officer training sessions." DOC is providing the "Class Counsel all visitor complaints received by DOC Constituent Services, and the Class Counsel will review the complaints for any indication of improper search practices." The Settlement Agreement also provides for the Class Counsel "seeking Court approval for attorneys' fees of up to $5.4 million," which are to be paid by the Defendants independently of the Settlement Fund. The Class Counsel has submitted billing records ("Class Counsel Billing Records") as well as a supplemental declaration, dated March 4, 2022, stating that their billing records reflect a lodestar amount (before applying a multiplier) of $2,561,625.65. The Class Counsel argue that a multiplier of 1.76 should be applied to the lodestar amount "because the case required an extraordinary amount of time and labor and involved difficult and complex legal questions, significant risk, and a defendant with substantial resources" and because a multiplier would compensate for the time spent "overseeing the administration of the settlement and monitoring the injunctive relief." The Class Counsel argue that a $4.5 million attorneys' fee award is reasonable under the factors articulated in Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000) because, among other things, (1) "three law firms spent thousands of hours investigating, litigating, and settling this sprawling case"; (2) the case "successfully challenged systemic constitutional violations and ensured that thousands of visitors to City jails receive just compensation for their injuries and Class Counsel secured a robust injunctive relief regimen that will help to protect hundreds of thousands of visitors"; (3) "the case appears to be the first damages class action filed on behalf of visitors to correctional facilities who were subjected to unlawfully invasive searches"; (4) the Class Counsel's representation reflects "substantial civil rights and class action experience"; (5) the requested award "is well within the range of similarly sized class action settlements"; and (6) "the proposed fee award strikes the right balance between moderation and encouraging litigants to bring forward substantive and impactful cases that are crucial to enforcing our constitutional liberties." The Defendants oppose the Motion by memorandum, dated Oct. 8, 2021, arguing that the "Class Counsel's total fee award should be limited to between $2.4 and $2.6 million" and that expense reimbursement should be reduced to $10,574.94. They also submitted a letter, dated March 11, 2022, in further opposition to the Motion stating, among other things, that a reduction of Class Counsel's "lodestar to $2 million would be appropriate and that multiplying the adjusted lodestar of $2 million by 1.2 to 1.3 would yield a range of $2.4 to $2.6 million for the attorney's fee award." The Defendants contend that the Class Counsel's requested fee award of $4.5 million is unreasonable under the six Goldberger factors because: (1) while "Class Counsel expended a substantial amount of time and labor on the case their time was spent inefficiently and their records have a number of deficiencies"; (2) no "legal or evidentiary difficulties made this case more complex to litigate than other class actions against municipal entities"; (3) litigation here was not "any riskier than any other class action against the City of New York"; (4) "courts should not necessarily award an increased fee where counsel simply displays the general level of skill expected"; (5) "a fee award closer to 15.4% to 16.5%, or $2.4 million to $2.6 million, is reasonable, and would be in line with prior class action settlements decided by the Court"; and (6) a lower award would "balance the overarching concern for moderation with public policy considerations of encouraging the filing of Section 1983 actions." B. Problems with Initial Claims Notice and Much Lowered Expectations As discussed in the Court's Nov. 29, 2021 Decision and Order, the parties' first effort in December 2019 to notify the potential class members of the settlement was seriously flawed. The original notice and claim form to the potential class members ("Initial Claims Notice") stated that the Settlement Agreement includes cash payments of up to $12.5 million to the class and that "Settlement Class Members will be eligible to receive a payment of approximately $4,000." In response to the Initial Claims Notice, more than 40,000 people submitted claims, which would have yielded average payments of less than $300 per claimant -- far below the Initial Claims Notice's estimate of "approximately $4,000." Following this serious underestimation by the parties of the number of potential claimants, the parties reversed course and returned to the negotiating table to address the problems with the Initial Claims Notice. They spent over a year re-negotiating a new settlement structure and fashioning a new claims notice to supersede the Initial Claims Notice. Among other things, the new notice and claim form required substantial additional information from claimants to enable the parties better to determine each claimant's eligibility to participate in the settlement, including "the date and location of the searches they experienced as well as a narrative description of those searches." The new notice and claim form was mailed to the same 40,000 individuals who had submitted claims in response to the Initial Claims Notice on May 16, 2021. And, it ultimately resulted in approximately 12,500 substantiated claims rather than the 40,000 claims submitted in response to the Initial Claims Notice. As the new notice and claim form indicated, Defendants agreed to a $1,000 minimum payment for all verified claims. C. Cross Motion for Reimbursement of Administrative Costs On Oct. 8, 2021, the Defendants filed their Cross Motion which seeks reimbursement from the "Class Counsel's attorneys' fee award" of claims administration fees that Defendants have paid or will pay to the Claims Administrator in excess of $500,000. They contend that they should be reimbursed for payments they have made or will make to the Claims Administrator totaling more than $500,000 because: (1) "the Settlement Agreement provides that Defendants would not reimburse the Claims Administrator for any amount in excess of $500,000"; and (2) decisions regarding the Initial Claims Notice that the Defendants opposed led to the new notice, additional proceedings, protracted claims period, and overrun of administrative costs. The Class Counsel oppose the Cross Motion, arguing that: (1) the Defendants "negotiated and agreed to the $159,024 additional costs" of the first round of claims administration; and (2) the Defendants also agreed to the Initial Claims Notice which "did not seek specific information about claimants' searches they knew the costs of sending a second claim form and the costs of reviewing the claim forms. And the Defendants agreed to all of it." III. Analysis A. Motion for Attorneys' Fees and Expenses In Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 50 (2d Cir. 2000), no matter which method is chosen, district courts should be guided by the traditional criteria in determining a reasonable common fund fee, including: (1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations. Applying the Goldberger factors, employing the percentage method with a lodestar cross check, and considering that the City of New York will be paying the legal fees, Judge Berman finds that the Class Counsel's request for $4.5 million in attorneys' fees ("Requested Award") is excessive. He awards to the Class Counsel $2.6 million as the total legal fees in the case, which equates to 20.8% of the $12.5 million Settlement Fund. He also awards $10,574.94 in expenses, and an additional $998.88 subject to the Class Counsel providing certain supporting documentation for the $998.88. The Class Counsel suggests that the Court uses $17.7 million, rather than the $12.5 million Settlement Fund with reference to the percentage of the fund. According to the Class Counsel, $17.7 million represents the total "benefit to the class" and "is comprised of the Settlement Fund [$12.5 million], the requested attorneys' fees [$4.5 million], and the settlement administration costs (approximately $700,000, to date)." In this District, when awarding fees on a percentage-of-the-fund basis, the denominator is usually the settlement net of costs. If, arguendo, the Settlement Fund were to be "pooled" together with the requested attorneys' fee award and the claims administration costs, a $2.6 million award would represent 14.7% of the total. Judge Berman finds that (i) a 20.8% fee award strikes the right balance between outcomes for the class and encouraging litigants to bring forward impactful cases concerning constitutional liberties; (ii) an attorneys' fee award of $2.6 million is reasonable; and (iii) the Class Counsel is not entitled to reimbursement for the $3,077.66 mediation expense. Judge Berman awards the Class Counsel $10,574.94 in expenses. He authorizes an additional $998.88 for "Printing Notice for DOC Facilities" subject to the Class Counsel providing the Court with additional documentation supporting that expense by Aug. 15, 2022. The Dec. 6, 2019 email between the Class Counsel and the Defendants attached to the Reply Declaration of Oren Giskan, dated Oct. 15, 2021, is not alone sufficient documentation for the expense. B. Cross Motion for Reimbursement of Administrative Costs The dispute is not entirely simple because the Settlement Agreement contemplates a maximum of $500,000 in administrative costs, which limit was exceeded by March of 2020. Because of the flawed Initial Claims Notice and attendant proceedings, claims administration costs currently exceed $1 million. The Defendants agreed to pay for the second round of notice and claims administration, but in doing so they "reserved the right to seek partial or full reimbursement of this amount from Class Counsel attorneys' fees application." Judge Berman finds that the most equitable solution is to have both sides share the claims administration costs in excess of $500,000. Defendants are entitled to reimbursement from the Class Counsel's fee award of one half (or 50%) of the amount the Defendants have paid (or will pay) to the Claims Administrator, over and above the $500,000 the Defendants agreed to pay in the Settlement Agreement. The Defendants are entitled to reimbursement because (1) they reserved their right to seek reimbursement for administrative costs in excess of $500,000; and (2) the Class Counsel and the Defendants s share responsibility for the notice problems and the resulting overrun in administrative costs. IV. Conclusion & Order For the foregoing reasons, Judge Berman grants in part and denies in part the Class Counsel's Motion for Attorneys' Fees and Expenses. He awards (i) the Class Counsel $2.6 million in attorneys' fees; and (ii) $10,574.94 in expenses. He also intends to award an additional $998.88 in expenses subject to the Class Counsel providing further documentation for the "Printing Notice for DOC Facilities" expense by Aug. 15, 2022. Judge Berman grants in part and denies in part the Defendants' Cross Motion for Reimbursement of Administrative Costs. He orders the Class Counsel to reimburse (from the $2.6 million attorneys' fee award) the Defendants for half of the total amount of fees paid and to be paid to the Claims Administrator in excess of $500,000. A full-text copy of the Court's July 15, 2022 Decision & Order is available at https://tinyurl.com/meyh2zk4 from Leagle.com. NEXTEP INC: Loomis, et al., Seek Initial OK of Settlement Deal -------------------------------------------------------------- In the class action lawsuit captioned as BRIAN LOOMIS, JASON BOYER and DANIEL W. KILDAY, individually and on behalf of all others similarly situated, v. NEXTEP, INC., THE BOARD OF DIRECTORS OF NEXTEP, INC., THE INVESTMENT COMMITTEE OF NEXTEP, INC. and JOHN DOES 1-30, Case No. 5:21-cv-00199-HE (W.D. Okla.), the Plaintiffs file an unopposed motion for preliminary approval of class action settlement agreement entered into with Defendants, preliminary approval of class notice, approval of plan of allocation, and scheduling of a fairness hearing. Nextep provides comprehensive HR, benefits, payroll, and risk & compliance solutions for your business. A copy of the Plaintiffs' motion dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3PEl3p1 at no extra charge.[CC] The Plaintiffs are represented by: Mark K. Gyandoh, Esq. Gabrielle Kelerchian, Esq. Donald R. Reavey, Esq. CAPOZZI ADLER, P.C. 312 Old Lancaster Road Merion Station, PA 19066 Telephone: (610) 890-0200 Facsimile (717) 233-4103 E-mail: markg@capozziadler.com gabriellek@capozziadler.com donr@capozziadler.com NORTHWEST MOTORSPORT: Class Cert. Schedule Amended in Villafan -------------------------------------------------------------- In the class action lawsuit captioned as SETH VILLAFAN, et al., v. NORTHWEST MOTORSPORT, LLC, et al., Case No. 2:20-cv-01616-TSZ (W.D. Wash.), the Hon. Judge entered an order granting the parties' Joint Stipulated Motion to Continue Trial Date and All Related Pretrial Deadlines. The Court issues the following amended schedule: -- Jury Trial Set for September 11,2023 -- Discovery on class certification August 22, 2022 issues completed by: -- Class certification motions due: October 20, 2022 -- Expert Witness Disclosure/Reports January 3, 2023 under FRCP 26(a)(2) due by: -- Motions related to discovery due by: January 19, 2023 -- Discovery completed by: February 16, 2023 Northwest Motorsport is the largest truck center on the west coast. A copy of the Court's order dated July 6, 2022 is available from PacerMonitor.com at https://bit.ly/3PzJFiI at no extra charge.[CC] PARAMOUNT RESIDENTIAL: Discovery on Class Cert Issues Due August 19 ------------------------------------------------------------------- In the class action lawsuit captioned as NTAN v. PARAMOUNT RESIDENTIAL MORTGAGE GROUP, INC., Case No. 1:21-cv-01583 (D.D.C.), the Hon. Judge Jia M. Cobb entered an order on motion for extension of time to complete discovery. The Discovery on class-certification issues will now close on August 19, 2022, Judge Cobb says. The suit involves Consumer Credit Protection-billing errors. Paramount operates as a mortgage industry.[CC] PAYPAL INC: Bids to File Friends' Second Amended Complaint Denied ----------------------------------------------------------------- In the case, FRIENDS FOR HEALTH SUPPORTING THE NORTH SHORE HEALTH CENTER, et al., Plaintiffs v. PAYPAL, INC. and PAYPAL CHARITABLE GIVING FUND, Defendants, Case No. 17 CV 1542 (N.D. Ill.), Judge Marth M. Pacold of the U.S. District Court for the Northern District of Illinois, Eastern Division, denies the Plaintiffs' motions for leave to file a second amended complaint. Terry Kass and charities Friends for Health: Supporting the North Shore Health Center, DC Central Kitchen, and Kol Hadash Humanistic Congregation (together, "Charity Plaintiffs") filed the putative class action lawsuit against Defendants PayPal, Inc. and PayPal Charitable Giving Fund, alleging that the Defendants engaged in misconduct related to soliciting and distributing charitable donations. The Defendants moved to compel individual arbitration under the Federal Arbitration Act ("FAA"), and the prior judge assigned to the case granted the motion and stayed the case. Kass and the Defendants have undergone arbitration and they have now filed cross-motions to confirm or vacate the arbitrator's award. Those cross-motions remain pending. Meanwhile, Kass, proceeding pro se, and the Charity Plaintiffs moved for leave to file a second amended complaint. They seek to add new parties and claims that they argue are not subject to arbitration. The Charity Plaintiffs contend that, despite the stay, they should be allowed to amend their claims because they are not presently engaged in arbitration and their proposed amended complaint brings new claims that the Charity Plaintiffs assert are not subject to arbitration. The Charity Plaintiffs cite only MacRury v. American Steamship Co., No. 16-cv-13889, 2017 WL 4803704 (E.D. Mich. Oct. 26, 2017), in support. MacRury, however, is inapposite, Judge Pacold opines. Unlike Charity Plaintiffs, the plaintiff in MacRury actually moved to lift the stay. Further, although the court in MacRury lifted the stay to allow the plaintiff to amend his complaint to assert new claims not subject to arbitration, the court did not explain why it was appropriate to do so—particularly in light of the FAA's seemingly mandatory command that the court "shall stay the trial of the action until such arbitration has been had." Thus, even if MacRury was applicable, Judge Pacold finds it unpersuasive. Kass makes no argument about whether it is, or is not, appropriate to allow amendment in light of the stay. Judge Pacold denies the motions to amend because the case is presently stayed under 9 U.S.C. Section 3, which mandates that the stay remain in place until arbitration has been completed. Even if the FAA provides courts discretion over whether to keep the stay in place, the parties have not presented the court with any compelling reason to lift the stay and allow amendment at this time. Neither the Charity Plaintiffs nor Kass has identified any change in circumstances that requires their proposed amendment to be granted now. Further, "leaving the stay intact until the completion of arbitration serves the interests of judicial economy and advances Congress's purpose in enacting the FAA: 'To ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.'" A full-text copy of the Court's July 13, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/ye3dff9z from Leagle.com. PHILADELPHIA INDEMNITY: Wins Judgment on Pleadings Bid in Kenney ---------------------------------------------------------------- In the case, KENNEY PROPERTIES, INC., KENNEY HOLDINGS, LLC, KENNEY REALTY SERVICES, LLC, and GRESHAM PARK, LLC, Plaintiffs v. PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendant, Case No. 5:21-CV-308-D (E.D.N.C.), Judge James C. Denver, III, of the U.S. District Court for the Eastern District of North Carolina, Western Division, grants Philadelphia's motion for judgment on the pleadings and dismisses Kenney's complaint. I. Introduction On July 27, 2021, Kenney Properties, Inc., Kenney Holdings, LLC, Kenney Realty Services, LLC, and Gresham Park, LLC doing business as Autumn Pointe Apartments (collectively "Kenney" or "Plaintiffs") filed a complaint against Philadelphia Indemnity Insurance Co. ("Philadelphia") alleging breach of contract for its failure to defend and indemnify Kenney in an underlying state court action, and alleging violations of North Carolina's Unfair and Deceptive Trade Practices Act ("UDTPA"), N.C. Gen. Stat. Sections 75-1, et seq. On Sept. 7, 2021, Philadelphia answered Kenney's complaint and filed a counterclaim seeking a declaratory judgment that it was not required to defend or indemnify Kenney. On Sept. 28, 2021, Kenney answered Philadelphia's counterclaim. On Nov. 11, 2021, Philadelphia moved for judgment on the pleadings and filed a memorandum in support. On Dec. 17, 2021, Kenney responded in opposition. On Dec. 31, 2021, Philadelphia replied. II. Background Kenney Properties is a North Carolina corporation with its principal place of business in Raleigh, North Carolina. Kenney Holdings, Kenney Realty, and Gresham Park are North Carolina limited liability companies with member/managers and principal places of business in Raleigh, North Carolina. Philadelphia is a Pennsylvania insurance company with its principal place of business in Pennsylvania. The Kenney entities offer apartments for rent in North Carolina. During the relevant period, Philadelphia insured Kenney Properties under a commercial lines policy. The North Carolina Residential Rental Agreements Act ("RRAA"), N.C. Gen. Stat Sections 42-38, et seq., governs the rights, obligations, and remedies of parties to a North Carolina residential rental agreement. The RRAA specifies what fees, costs, and expenses a landlord can charge if a tenant fails to timely pay the agreed-upon rent. Before 2018, the statute explicitly allowed landlords to charge a "Late Fee" and one of the following: "Complaint-Filing Fee," "Court-Appearance Fee," or "Second Trial Fee." In 2018, after a court decision holding that charging other eviction fees violated North Carolina law, the North Carolina General Assembly amended the RRAA to allow landlords to charge additional "out-of-pocket expenses," including filing fees charged by the court, costs for service of process, and reasonable attorneys' fees. Because the RRAA did not specifically delineate these expenses before the 2018 amendment, some litigants argued that the RRAA did not authorize these "out-of-pocket expenses" before the effective date of the 2018 amendment. These litigants filed numerous lawsuits seeking reimbursement of such expenses that tenants paid before the 2018 amendment took effect. The action underlying this coverage dispute is one such suit. On Sept. 4, 2018, Alisa Brogden filed the underlying state court action (the "Brogden Action") in Wake County Superior Court. On June 19, 2020, the U.S. Court of Appeals for the Fourth Circuit addressed the pre-2018 scope of the RRAA in Suarez v. Camden Property Trust, 818 F. App'x 204 (4th Cir. 2020) (unpublished). On Oct. 8, 2020, after the Fourth Circuit's Suarez decision, Kenney settled the Brogden Action. In the settlement, Kenney agreed to pay $500,000 into a settlement fund to be disbursed to two classes. On Jan. 14, 2021, the Wake County Superior Court approved the settlement. The parties agree that Philadelphia insured Kenney under a commercial lines policy that governed Philadelphia's duties to Kenney regarding the Brogden Action. The parties agree that Coverage A of the policy does not apply. And regardless of immaterial disputes about which version of the policy applies, the parties cite the same policy language for Coverage B and the applicable endorsement. Under Coverage B, Philadelphia "will pay those sums that the insured becomes legally obligated to pay as damages because of 'personal and advertising injury' to which this insurance applies." It "will have the right and duty to defend the insured against any 'suit' seeking those damages. However, Philadelphia will have no duty to defend the insured against any 'suit' seeking damages for 'personal and advertising injury' to which this insurance does not, apply." The policy defines "personal and advertising injury" as injury, including consequential 'bodily injury,' arising out of one or more of the following offenses: False arrest, detention or imprisonment; Malicious prosecution; The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; Oral or written publication, in any manner, of material that violates a person's right of privacy; The use of another's advertising idea in your 'advertisement'; or infringing upon another's copyright, trade dress or slogan in your 'advertisement'. The General Liability Deluxe Endorsement Schools provision modifies the definition of "personal and advertising injury" by, inter alia, changing paragraph 14b. to read: "Malicious prosecution or abuse of process." III. Discussion A. Philadelphia argues that it need not defend or indemnify Kenney because the Brogden Complaint does not state a claim within Kenney's coverage. Kenney responds that even though the Brogden Complaint did not contain an abuse of process claim, Philadelphia had to defend Kenney because the Brogden Complaint alleged facts consistent with an abuse of process claim. The Brogden Complaint contains claims for statutory violations related to landlord-tenant regulations and debt collection and a UDTPA claim. These claims do not fall within the policy's definition of "personal and advertising injury." Kenney, however, argues that the Brogden Complaint alleges facts in the "general background" section consistent with an abuse of process claim and thereby falls within the General Liability Deluxe Endorsement Schools provision, which adds abuse of process to the definition of "personal and advertising injury." Philadelphia disagrees. Judge Denver analyzes the injuries alleged in the Brogden Complaint to see whether the Brogden Complaint plausibly includes an abuse of process claim. He finds that the Brogden Complaint does not explicitly contain an abuse of process claim. And no single claim includes allegations that would state a plausible abuse of process claim. Moreover, even the factual allegations Kenney cites from the "general background" section of the Brogden Complaint do not plausibly allege an abuse of process claim. The eviction action against Brogden is a prior proceeding. And the Court assumes without deciding that charging Brogden the eviction fees could constitute a "wilful act" to gain advantage over Brogden in the collateral matter of collecting the outstanding amount owed on Brodgen's lease. However, nothing in the Brogden Complaint suggests that Kenney instituted the eviction proceeding for an ulterior, improper purpose. Therefore, even if synthesizing disparate factual allegations to allege a covered tort can trigger the duty to defend, the facts in the Brogden Complaint do not state a claim for abuse of process. Thus, under the comparison test, Philadelphia did not have a duty to defend Kenney in the Brogden Action. Judge Denver concludes that the duty to defend is broader than the duty to indemnify. Accordingly, if the duty to defend "fails, so too does: the duty to indemnify." Because Philadelphia did not have a duty to defend Kenney in the Brogden Action, Philadelphia also did not have a duty to indemnify Kenney. B. Kenney alleges UDTPA violations based on (1) Philadelphia's "misrepresentation" of the policy definition of "personal and advertising injury" by omitting reference to the endorsement adding "abuse of process" as a covered enumerated offense; and (2) Philadelphia's failure to timely respond to correspondence from Kenney disputing the denial of coverage for the Brogden Action. In support of its UDTPA claim, Kenney relies on the North Carolina Unfair Claim Settlement Practices statute, N.C. Gen. Stat. Section 58-63-15(11), as defining unfair acts under the UDTPA. Philadelphia responds that Kenney's UDTPA claims are not distinct from its breach of contract claim related to the coverage dispute, that the crux of Kenney's UDTPA claims is an honest disagreement about coverage, and that Kenney does not state a UDTPA claim. Judge Denver states that in order to establish a prima facie claim for unfair trade practices, a plaintiff must show: (1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff. He holds that Kenney does not allege any independent injury proximately caused by the alleged section 56-63-15(11) violations. Kenney alleges that Philadelphia violated N.C. Gen. Stat. Section 58-63-15(11)(a)-(d), (f), and (n) in handling Kenney's coverage claim in the Brogden Action and thereby violated the UDTPA. Because Philadelphia was not obligated to provide a defense under the policy, Judge Denver holds that section 58-63-15(11)(f) does not apply. As for Philadelphia's alleged violations of subsections (c) and (d), he says Kenney does not allege any specific deficiencies in Philadelphia's investigation process, and Philadelphia correctly determined that Kenney's coverage did not apply to the claims in the Brogden action. Thus, section 58-63-15(11)(c) and (d) do not help Kenney. As for Philadelphia's alleged violations of section 58-63-15(11)(a), (b), and (n), Judge Denver holds that Kenney does not allege any injury that proximately resulted from any of these alleged unfair acts. Kenney does not allege independent harm from Philadelphia's alleged deficient communication. Kenney also alleges that the costs of bringing the action are UDTPA damages. However, because Philadelphia did not owe Kenney a duty to defend or to indemnify, Kenney does not plausibly allege any injury that proximately resulted from the unfair acts. Kenney does not allege any independent injury proximately caused by the alleged section 56-63-15(11) violations. Thus, Judge Denver dismisses Kenney's UDTPA claim. IV. Conclusion In sum, Judge Denver grants the Defendant's motion for judgment on the pleadings and dismisses the Plaintiffs' complaint. The Defendant had no duty to defend or indemnify the Plaintiffs. The Clerk will close the case. A full-text copy of the Court's July 13, 2022 Order is available at https://tinyurl.com/mt7e923b from Leagle.com. PHILLIPS & COHEN: Scheduling Order Entered in Floyd Walker Suit --------------------------------------------------------------- In the class action lawsuit captioned as FLOYD WALKER III, individually and on behalf of all others similarly situated, v. PHILLIPS & COHEN ASSOCIATES, LTD., a New Jersey corporation, Case No. 1:22-cv-02468-CPO-EAP (D.N.J.), the Hon. Judge Elizabeth A. Pascal entered a scheduling order as follows: -- Initial written discovery July 29, 2022 requests shall be served by: -- All discovery applications September 30, 2022 regarding initial written discovery shall be filed no later than: -- Any responses thereto shall October 7, 2022 be filed by: -- Pretrial factual discovery January 31, 2023 will expire on: -- Depositions of proposed expert April 14, 2023 witnesses shall be concluded by: -- Dispositive motions shall be May 31, 2023 filed with the Clerk of the Court no later than: -- Class certification motions May 31, 2023 shall be filed with the Clerk of the Court no later than: Phillips & Cohen is a financial recovery agency specializing in deceased account management, cease and desist solutions, and debt management recovery. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3ROTWJG at no extra charge.[CC] PPG EMPLOYEE: 4th Cir. Vacates Vesting Claim Award in Bellon Suit ----------------------------------------------------------------- In the case, CHARLES W. BELLON; ROBERT E. EAKIN; JUDY GAY BURKE; LOUISE NICHOLS; WILTON G. WALLACE; BERNADOT F. VEILLON; BARBARA BROWN; ROBERT E. WILLIAMS, on behalf of themselves and others similarly situated, Plaintiffs-Appellants v. THE PPG EMPLOYEE LIFE AND OTHER BENEFITS PLAN; PPG INDUSTRIES, INC.; THE PPG PLAN ADMINISTRATOR, Defendants-Appellees, Case No. 21-1812 (4th Cir.), the U.S. Court of Appeals for the Fourth Circuit affirms in part and vacates in part the district court's order awarding summary judgment to the PPG Defendants on all counts and dismissing the Complaint with prejudice. I. Introduction The putative class action was initiated in the Northern District of West Virginia in July 2018 by eight Plaintiffs -- each a retiree of PPG, or the surviving spouse of such a retiree -- following the termination of the plaintiffs' retiree life insurance coverage under the PPG Employee Life and Other Benefits Plan (the "Benefits Plan" or the "Plan"). The operative complaint of January 2020 spells out multiple claims against the Benefits Plan, PPG, and the PPG Plan Administrator (collectively, the "PPG Defendants"). By a Memorandum Opinion and Order of June 2021, the district court awarded summary judgment to the PPG Defendants on all claims, without ruling on the class certification issue. On appeal, the Plaintiffs contest the summary judgment award as to three counts of the Complaint, that is, Counts I, VII, and VIII. As explained, the Fourth Circuit identifies a genuine dispute of material fact with respect to the Count I claim that retiree life insurance coverage was "vested" in eligible employees working for PPG during the 15-year period from 1969 to 1984 (the "vesting claim"). Accordingly, it vacates the judgment as to the vesting claim and remands for consideration of whether the termination of the Plaintiffs' retiree life insurance coverage contravened the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1001 et seq. It otherwise affirms. II. Background The Plaintiffs initiated this multimillion-dollar civil litigation in 2018, representing a putative class of approximately 1,000 retired PPG employees and surviving spouses. By way thereof, they primarily seek to "restore and recover contractually-vested retiree life insurance coverage and associated benefits" from the PPG Defendants. Named as plaintiffs are six retirees who worked in PPG's commodity chemicals business between 1969 and 1984, and two widows of such PPG retirees. Each Plaintiff was a participant in the Benefits Plan or a retiree life insurance beneficiary. The Benefits Plan historically offered two alternative retiree life insurance options to the participants. First, a Plan participant could elect a single lump-sum payment, which amounted to one-half of the participant's annual salary before retirement, with a maximum benefit of $50,000. Second, certain Plan participants could alternatively elect a "surviving spouse benefit" consisting of half of the lump-sum payment plus a monthly payment to the surviving spouse for life, predicated on the amount of the deceased participant's pension. Life insurance coverage was provided to all of PPG's former salaried, nonunion employees who retired from PPG with 15 or more years of service and received a PPG pension at the time of retirement. In January 2013, PPG merged its commodity chemicals business with an entity called Georgia Gulf Corporation to form a new business named Axiall. By the 2013 merger, PPG transferred to Axiall its obligations under the Benefits Plan to provide retiree life insurance coverage to eligible former employees of PPG's commodity chemicals business. In December 2015, however, Axiall terminated the retiree life insurance coverage of the plaintiffs and members of the putative class. Of importance, the theory of the Count I vesting claim is that, when PPG transferred its obligations under the Benefits Plan to Axiall in 2013, the Plaintiffs (or their spouses) possessed "already earned and vested rights to retiree life insurance coverage under the PPG Plan" that could not be lawfully terminated. According to the Plaintiffs, because their retiree life insurance coverage was vested under the Plan, the PPG Defendants are obliged under ERISA to supply such coverage, regardless of whether Axiall provides coverage under a new benefits plan. Pursuant to the vesting claim, the Plaintiffs seek for themselves and the putative class "to recover benefits due under the terms of the plan, to enforce rights under the terms of the plan, or to clarify rights to future benefits under the terms of the plan." After discovery concluded in September 2020, the parties each moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. On the merits of the Count I vesting claim, the PPG Defendants asserted that the claim fails as a matter of law because the Benefits Plan documents do "not establish a vested benefit" for retiree life insurance coverage. The Plaintiffs resisted the summary judgment request made by the PPG Defendants as to the Count I vesting claim, maintaining that "whether the Plaintiffs' benefits were vested is, at minimum, a disputed question of material fact." In December 2020, two months after the parties filed and briefed their summary judgment motions, the PPG Defendants notified the Plaintiffs' lawyers of newly discovered evidence that was responsive to the Plaintiffs' timely discovery requests. The newly discovered evidence consisted of approximately 24 pages of 1984 meeting minutes and related official documents of the PPG Employee Benefits Committee (the "EBC"), the PPG committee responsible for establishing, maintaining, and amending the Benefits Plan (the "undisclosed EBC minutes"). On Dec. 30, 2020, the Plaintiffs sought relief from the district court pursuant to Federal Rule of Civil Procedure 56(d) -- in light of the undisclosed EBC minutes -- requesting the court to reject the PPG Defendants' summary judgment motion and authorize time for further discovery. The PPG Defendants opposed the Rule 56(d) motion, underscoring that the Plaintiffs knew that the Benefits Plan "prior to 1984 did not include a reservation of rights clause." By its Opinion of June 28, 2021, the district court disposed of the two motions that are pertinent to our analysis of the Count I vesting claim. First, the court denied the Plaintiffs' Rule 56(d) motion. And second, it awarded summary judgment to the PPG Defendants -- at their request -- on the vesting claim. Ultimately, the district court awarded summary judgment to the PPG Defendants on all counts and dismissed the Complaint with prejudice. The Plaintiffs timely noted this appeal, and the Fourth Circuit possesses jurisdiction pursuant to 28 U.S.C. Section 1291. III. Discussion On appeal, the Plaintiffs contend that -- based on the existing record, including the undisclosed EBC minutes evidencing that retiree life insurance coverage constituted a vested benefit under the Benefits Plan between 1969 and 1984 -- the district court erred in awarding summary judgment to the PPG Defendants on the Count I vesting claim. The court ruled that the Plaintiffs' retiree life insurance coverage could be terminated consistent with ERISA because the Plan included a reservation of rights clause as of 1984. That is, the court apparently believed that the adoption of the reservation of rights clause in 1984 allowed PPG to terminate retiree life insurance coverage for all present and future Plan participants, even if such coverage had previously been vested for participants like the Plaintiffs (and their spouses) who worked between 1969 and 1984. The Fourth Circuit holds that the issue of whether the Plaintiffs' retiree life insurance coverage ever constituted a vested benefit is wholly material to the proper resolution of the Count I vesting claim. However, the Plaintiffs assert that vesting first occurred in 1969, prior to ERISA's enactment in 1974. Thus, it is doubtful that they should be held to any requirement for "clear and express language" in ERISA plan documents. In any event, the Plaintiffs do not ask the courts to "lightly infer" vesting. There being such a factual dispute, the district court erred in awarding summary judgment to the PPG Defendants on the Count I vesting claim. Accordingly, although it otherwise affirms, the Fourth Circuit vacates the court's judgment with respect to the vesting claim and remands for further consideration thereof, which may include related discovery, spoliation issues, and class certification. IV. Conclusion The Fourth Circuit agrees with the Plaintiffs that if their retiree life insurance coverage were ever a vested benefit, PPG could not rely on the later-added reservation of rights clause to terminate that coverage. Moreover, it recognizes that the existing record reflects a genuine dispute of material fact as to the vesting issue. The Fourth Circuit therefore vacates the judgment with respect to the Count I vesting claim and remands for further proceedings thereon. A full-text copy of the Court's July 15, 2022 Opinion is available at https://tinyurl.com/mts3knb8 from Leagle.com. ARGUED: Maureen Davidson-Welling -- mdw@stembercohn.com -- STEMBER COHN & DAVIDSON-WELLING, LLC, in Pittsburgh, Pennsylvania, for the Appellants. Joseph J. Torres -- jtorres@winston.com -- JENNER & BLOCK LLP, in Chicago, Illinois, for the Appellees. ON BRIEF: John Stember -- jstember@stembercohn.com -- STEMBER COHN & DAVIDSON-WELLING, LLC, Pittsburgh, Pennsylvania; James T. Carney, in Pittsburgh, Pennsylvania, for the Appellants. Ashley M. Schumacher -- aschumacher@jenner.com -- Clifford W. Berlow -- cberlow@jenner.com -- Alexis E. Bates -- abates@jenner.com -- Hope H. Tone-O'Keefe -- htone@jenner.com -- JENNER & BLOCK LLP, in Chicago, Illinois, for the Appellees. PROGRESSIVE UNIVERSAL: Scheduling Order Entered in Kroeger Suit --------------------------------------------------------------- In the class action lawsuit captioned as Amy Kroeger, Individually And On Behalf Of All Others Similarly Situated, v. Progressive Universal Insurance Company, An Ohio Corporation, Case No. 4:22-cv-00104-SMR-HCA (S.D. Iowa), the Hon. Judge Helen C. Adams entered a scheduling and trial setting order as follows: 1. A Jury Trial shall begin on February 12, 2024 at 9:00 AM before United States District Judge Stephanie Rose at the United States Courthouse, Des Moines, Iowa. Trial is estimated to take 5 days. 2. A Final Pretrial Conference shall be held on January 10, 2024 at 10:00 AM at the United States Courthouse, Des Moines, Iowa, before Chief Magistrate Judge Helen C. Adams. 3. Initial Disclosures shall be made by July 8, 2022. 4. Motions to add parties shall be filed by Aug. 23, 2022. 5. Motions for leave to amend pleadings shall be filed by Aug. 23, 2022. 6. The Deadline for completion of fact discovery Feb. 20, 2023. 7. The Plaintiff shall designate expert witnesses and disclose their written reports by March 9, 2023. 8. The Plaintiff's motion for class certification due by April 10, 2023. 9. The Defendant shall designate expert witnesses and disclose their written reports by April 24, 2023. 10. The Defendant's opposition to motion for class certification due by May 24, 2023. 11. The Plaintiff's reply in support of class certification due by June 15, 2023. 12. Deadline for completion of expert discovery June 1, 2023. 13. Dispositive motions shall be filed by Sept. 8, 2023. Progressive Universal operates as an insurance firm. A copy of the Court's order dated July 6, 2022 is available from PacerMonitor.com at https://bit.ly/3uUGcU0 at no extra charge.[CC] REBELZ CLUB: Court Conditionally Certifies Class in Harris Suit --------------------------------------------------------------- In the case, BRIANA RAE HARRIS, on behalf of herself and all persons similarly situated, Plaintiff v. REBELZ CLUB, LLC d/b/a Rebelz Gentlemen's Club, HEATHER VARANDO, and PABLO VARANDO, Defendants, Case No. 4:22-CV-00111 (M.D. Pa.), Judge Matthew W. Brann of the U.S. District Court for the Middle District of Pennsylvania grants Harris' motion for conditional certification. I. Overview Former exotic dancer Harris, acting on behalf of all dancers at the Rebelz Gentlemen's Club in Moshannon, Pennsylvania from the past three years, filed the putative class action against Rebelz and its owners, alleging that the club unlawfully withheld dancer pay and tips. Now, Harris moves for conditional certification of her proposed class. Buttressed by declarations from other Rebelz dancers, Harris argues that the alleged unlawful withholdings were part of a common payment scheme imposed on all Rebelz dancers. Because these declarations constitute sufficient evidence to satisfy the modest factual showing required, Harris' motion for conditional certification is granted. II. Background On Jan. 20, 2022, Harris initiated the putative class action lawsuit against Rebelz and its owners, Pablo and Heather Varando, on behalf of all Rebelz dancers from the past three years. Harris alleges violations of the Fair Labor Standards Act ("FLSA") and the Pennsylvania Wage Payment and Collection Law ("WPCL") as well as a common law claim for conversion based on the Defendants' mandatory deductions of dancer wages and tips. The following month, Harris filed a motion for conditional class certification. In support, Harris attached three declarations: The first, by her; the second and third, by two other Rebelz dancers, Caera Zimmerman and Vanessa Baker. In their declarations, Harris, Zimmerman, and Baker detail the work requirements and payment scheme for exotic dancers at Rebelz. Specifically, Zimmerman explains that she was hired by Mrs. Varando to work two days per week as dancers, with each shift lasting at least 10 hours, totaling approximately 20 hours a week. Additionally, all three note that Rebelz did not permit dancers to work at other clubs while employed at Rebelz. According to Harris, Zimmerman, and Baker, dancers at Rebelz receive two forms of payment. First, dancers collect a portion of the "dance fees" -- that is, the amount Rebelz customers pay per lap dance.8 The dance fees are set by Rebelz without any input or negotiation by the dancers. Per Rebelz policy, dancers receive 50% of dance fees; Rebelz retains the remaining 50%.10 Second, dancers received customer tips, which were made at the customers' discretion (i.e., the additional gratuity was optional; Rebelz did not require or automatically apply customer tips). Harris, Zimmerman, and Baker explain that "Rebelz required that after each dance, Dancers place any cash tips in a dedicated envelope for each Dancer, and provide it to the club's management in the office." Lastly, Harris, Zimmerman, and Baker detail a set of "mandatory fees" that were "automatically deducted from the Dancers' tips and share of Dance Fees each working night." Rebelz imposed these fees without input from the dancers; as such, any change in the amount deducted on a given night was determined exclusively by Rebelz. Responding to the declarations by Harris, Zimmerman, and Baker, the Defendants filed a declaration by Mrs. Varando. In her declaration, Mrs. Varando challenges certain representations made by Harris, Zimmerman, and Baker, asserting that "different dancers pay different expenses, and the manner by which expenses are charged varies." For example, Mrs. Varando asserts that Rebelz has a different compensation structure for dancers who perform private dances for more than eighty minutes in a given shift, and that some dancers "choose to purchase drinks throughout their shifts on a credit system," with the costs of those drinks "deducted from their compensation at the end of the night." Further, Mrs. Varando disputes the existence of fees for advertising expenses, dancing less than 80 paid minutes a night, and earning more than $300 a night. According to Mrs. Varando, "those claims are flatly wrong." Notably, although Mrs. Varando denies Harris' allegation that dancers receive less than 50% of dance fees (due to fees Rebelz imposed for certain house expenses), she acknowledges that Rebelz charges at least certain dancers "house fees," "expenses," and "other fees." With the filing of Harris's reply brief in support of her motion for conditional certification, the motion has been fully briefed. Accordingly, the motion is ripe for disposition. III. Discussion A. Conditional Certification In her Complaint, Harris alleges that she and the other Rebelz dancers were subject to a common illegal pay practice: the Defendants "illegally diverted the Dancers' tips by converting the tips to the Defendants' benefit." According to Harris, the declarations submitted by Zimmerman and Baker (coupled with Harris's own declaration) "confirm the allegations of the Complaint that the Defendants' scheme to illegally divert a portion of their tips in violation of the FLSA was a policy universally applied to all Dancers." And by presenting "threshold evidence" that the putative class members were "uniformly subject to a policy that violates the FLSA," Harris argues, she has established that "the putative class members are 'similarly situated,'" and therefore conditional certification is appropriate. Judge Brann agrees. He says, the Defendants present several arguments in response, none of which have merit. At this early stage, the declarations submitted by Harris, Zimmerman, and Baker satisfy the "modest factual showing necessary to warrant conditionally certifying their action" -- that is, they show that all dancers who worked for Rebelz within the putative class period were subject to the same compensation structure, whereby Rebelz withheld portions of the dancers' tips and dance fees to finance other house expenses. Accordingly, Harris' motion for conditional certification is granted. B. Notice Ms. Harris asks the Court to authorize notice through "first-class mail, text message, and email," and to provide a "sixty (60) day notice period, with a thirty (30) day reminder notice to those who have not responded." The Court considers this notice request reasonable and consistent with prior rulings from district courts in this Circuit. In response, the Defendants argue only that the proposed notice "should include a provision notifying the opt-ins that they may be liable for the costs of suit if the Defendants prevail." According to them, this provision is "reasonable" and "has been adopted before," citing a ruling from Magistrate Judge Arnold C. Rapoport of the United States District Court for the Eastern District of Pennsylvania in Wright v. Lehigh Valley Hospital & Health Network. Magistrate Judge Rapoport is correct that "courts have awarded costs to prevailing defendants in FLSA cases," and therefore "an award of costs to a prevailing defendant in an FLSA case is clearly possible and is not merely theoretical." That said, the purpose and benefit of such a notice -- i.e., "allowing putative plaintiffs to 'make informed decision about whether to participate'" -- is substantially outweighed by the risk of intimidating potential class members and chilling participation in the collective action. Accordingly, Judge Brann approves Harris' proposed notice request and denies the Defendants' counter-proposal to include a provision notifying opt-ins that they may be liable for costs. IV. Conclusion The factual showing required for conditional certification of a proposed class is indisputably modest. Because the declarations Harris presents satisfy this modest requirement, her motion for conditional certification is granted. Additionally, Judge brann authorizes the use of Harris' proposed notice as written. An appropriate Order follows. A full-text copy of the Court's July 15, 2022 Memorandum Opinion is available at https://tinyurl.com/5e8ze3b8 from Leagle.com. REBELZ CLUB: Pennsylvania Court Denies Bid to Dismiss Harris Suit ----------------------------------------------------------------- In the case, BRIANA RAE HARRIS, on behalf of herself and all persons similarly situated, Plaintiff v. REBELZ CLUB, LLC d/b/a Rebelz Gentlemen's Club, HEATHER VARANDO, and PABLO VARANDO, Defendants, Case No. 4:22-CV-00111 (M.D. Pa.), Judge Matthew W. Brann of the U.S. District Court for the Middle District of Pennsylvania denies the Defendants' motion to dismiss the Complaint. I. Overview A former exotic dancer at the Rebelz Gentlemen's Club in Moshannon, Pennsylvania, Plaintiff Harris brought the putative class action lawsuit against Rebelz and its owners for allegedly withholding dancer pay in violation of federal and state law. The Defendants now move to dismiss the Complaint, challenging the classification of, and the dancer's entitlement to, the disputed compensation, as well as the claims of individual liability against the Rebelz owners. But the Defendants misconstrue both Harris' claims and the relevant legal authority. Because the Complaint states valid causes of action under the Fair Labor Standards Act and the Pennsylvania Wage Payment and Collection Law, as well as for common law conversion, the Defendants' motion to dismiss is denied. II. Background In March 2021, Harris began working as an exotic dancer at the Rebelz Gentlemen's Club located in Moshannon, Pennsylvania. At the time, Rebelz was owned and operated by a husband-and-wife duo, Pablo and Heather Varando. Mr. and Mrs. Varando oversaw all aspects of the Rebelz operation: they hired, fired, supervised, directed the work of, and controlled payroll decisions for the exotic dancers.3 In particular, Mrs. Varando -- the club's "House Mom" -- exercised control over the dancers' work schedules, setting the shift requirements and permitting days off only with her express permission. At any given time, Rebelz employed approximately 14 dancers, who worked two days per week (Fridays and Saturdays) from 8:30 p.m. until at least 6:00 a.m. The dancers received two forms of compensation: a portion of the customer "dance fees" (i.e., the amount customers paid per lap dance) as well as customer tips.6 The Defendants unilaterally set the dance fees -- $20 for a four-minute dance, $80 for a 16-minute dance -- and the portion of the dance fees attributed to dancers -- 50%. Further, the Defendants deducted from the dancers' tips and dance fees payments for certain house expenses, including "House Fees" (a 15% charge from tips for the privilege of working on a given night), "Expenses" (to cover advertising costs and other club expenses), "Tip-Outs" (to subsidize the cost for other employees, such as security staff and DJs), and "Late Fees." They also imposed dancer-specific deductions for either failing to perform 80 minutes of customer dances or making more than $300 a night. Harris stopped working at Rebelz in September 2021. Around four months later, in January 2022, she initiated the putative class action on behalf of all current and former dancers at Rebelz during the prior three years. In the three-count lawsuit against Rebelz and Mr. and Mrs. Varando, Harris alleged violations of the Fair Labor Standards Act ("FLSA") and the Pennsylvania Wage Payment and Collection Law ("WPCL") as well as a common law claim for conversion based on the Defendants' mandatory deductions of dancer wages and tips. The Defendants moved to dismiss the Complaint on Feb. 15, 2022. That motion has been fully briefed and is now ripe for disposition. III. Analysis A. Count I - Violation of the FLSA The FLSA provides that "an employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees' tips, regardless of whether or not the employer takes a tip credit." Accordingly, in Count I of her Complaint, Harris argues that the Defendants violated the FLSA by "knowingly deducting amounts from her and the other Rebelz dancers' tips" for the purpose of "subsidizing the labor costs for other employees (e.g., security staff and DJs)." In their motion to dismiss, the Defendants attack Harris's FLSA claim on two grounds: (1) the dance fees do not qualify as "tips," and therefore any alleged withholding of dance fees does not violate the FLSA; and (2) Harris's allegations regarding Mrs. Varando lack the specificity required to sustain a claim for individual liability. Neither argument justifies dismissal, Judge Brann opines. First, he finds that the dance fees are relevant only to Count II, which seeks compensation for lost "wages." Accordingly, the Defendants' argument that dance fees do not qualify as "tips" under the FLSA has no bearing on the viability of Count I. Next, Judge Brann finds that the allegations "provide enough information" about the scope of Mrs. Varando's workplace authority to allow the Court to reasonably infer her liability for the misconduct alleged. As such, the Defendants' motion to dismiss Harris's FMLA claim as to Mrs. Varando is denied. B. Count II - Violation of the WPCL In Count II, Harris alleges that the Defendants violated the WPCL by deducting and converting for their own benefit a portion of the dancers' wages, which Harris defines as customer tips as well as the 50% of dance fees allocated to dancers. The Defendants argue that the WPCL claim should be dismissed for three reasons: (1) Harris does not allege that she had a "contractual entitlement" to compensation from Rebelz; (2) dance fees do not qualify as "wages" under the WPCL; and (3) the Complaint fails to establish individual liability for Mrs. Varando. Again, Judge Brann finds the Defendants wrong on all fronts. He opines that (i) Harris alleges the existence of an implied contract: the dancers performed at Rebelz with the Defendants' knowledge and consent -- indeed, at the Defendants' direction and for their financial benefit; (ii) anemployee's prior consent to the disputed deductions does not foreclose an otherwise viable WPCL claim; (iii) the 50% of dance fees allotted to the dancers (including the amount withheld for the various deductions) qualify as "wages" under the WPCL: Rebelz offered this payment to dancers in exchange for their work at and for Rebelz; and (iv) the allegations state a claim for Mrs. Varando's individual liability under the WPCL. C. Count III - Conversion As with Counts I and II, the Defendants move to dismiss Count III (conversion) against Mrs. Varando. According to them, "there is simply no viable allegation suggesting that Mrs. Varando actively participated in the commission of any torts." But, once again, the Defendants have it wrong, Judge Brann opines. He says, the tortious conduct at issue is the Defendants' alleged conversion of the dancer's tips without consent or legal justification. Harris alleges that Mrs. Varando participated in this conduct by "exercising discretionary control over payroll decisions" with respect to Harris and the other dancers, and penalizing dancers who complained "they had been shorted tips and suffered from illegal deductions from their tips." Taken together, these allegations state a conversion claim against Mrs. Varando under the participation theory. IV. Conclusion Judge Brann concludes that in their motion to dismiss, the Defendants seem wholly confused -- about the nature of Harris' claims and the legal authorities that govern them. But as the Court sees it, the legal issues are not particularly complicated. Harris' allegations that the Defendants claimed a portion of the dancers' tips support claims under the FLSA (Count I) and common law (Count III). And these allegations, coupled with the pleadings about dance fee deductions for house expenses, state a claim for relief under the WPCL (Count II). Accordingly, the Defendants' motion to dismiss is denied. An appropriate Order follows. A full-text copy of the Court's July 15, 2022 Memorandum Opinion is available at https://tinyurl.com/5d8chd7t from Leagle.com. RED WING: Fla. Dist. App. Affirms Dismissal of Southam FACTA Suit ----------------------------------------------------------------- In the case, JAMES LUCAS SOUTHAM, individually, and on behalf of other similarly situated individuals, Appellant v. RED WING SHOE COMPANY, INC., a Minnesota corporation, Appellee, Case No. 4D21-3338 (Fla. Dist. App.), the District Court of Appeal of Florida, Fourth District, affirms the trial court's order granting the Appellee's motion to dismiss. I. Introduction Appellant Southam filed a class action suit alleging that Appellee Red Wing, failed to comply with the requirements of the Fair and Accurate Credit Transactions Act ("FACTA"). The Appellant alleged that a receipt he received from Red Wing contained ten digits of his credit card number. He does not allege that his credit card was used, lost, or stolen in any way. Nor was there evidence of any danger of appellant's credit card being used. The Appellant suffered no "economic" injury, nor any "distinct or palpable" injury. Thus, in the case, the District Court of Appeal finds "no concrete harm, no standing." Therefore, it finds the trial court did not err in granting the Appellee's motion to dismiss since the Appellant lacked standing to proceed. The District Court of Appeal affirms the other issue raised without further comment. II. Background Following a purchase at a Red Wing shoe store, the Appellant filed a class action suit in federal court alleging that the receipt provided by Red Wing contained 10 digits of his credit card number in violation of FACTA. The suit did not allege or seek to recover any actual damages. The class members sought only statutory damages under section 1681n. Red Wing filed a motion to stay the federal court action pending resolution of a matter in front of the Eleventh Circuit. The federal district court granted Red Wing's motion to stay, "pending final resolution of the Muransky v. Godiva Chocolatier, Inc. (No. 16-16486) appeal in the Eleventh Circuit." During the stay, appellant filed the action in state court, which Red Wing removed to federal court on the basis of federal question jurisdiction. The Eleventh Circuit held in Muransky, on facts similar to the instant case, that "a party does not have standing to sue when it pleads only the bare violation of a statute." Thus, the parties agreed to dismiss the federal action and remand the later-filed action to state court. The Appellant proceeded in state court on the theory that state standing was plenary and therefore less restrictive than federal standing. His argument for standing is based solely on the alleged "legal injury" derived from the statutory damages of 15 U.S.C. Section 1681n(a)(1)(A). Red Wing filed a motion to dismiss, alleging that the Appellant did not have standing to bring the action because he had not suffered a concrete or actual injury. It argued that "an alleged noncompliant receipt, without more, does not confer standing." Because he did not allege that he had suffered any actual damages, and did not allege that his receipt had been stolen, that another copy existed, or that anyone else had seen the receipt, Red Wing believed it was entitled to dismissal. The trial court granted Red Wing's motion to dismiss, finding that Florida requires a concrete injury to have standing, which the Appellant did not argue he sustained. The trial court held that alleging a mere statutory violation does not convey standing per se. Rather, the "Plaintiff must have a concrete, non-hypothetical injury. Merely obtaining a receipt in alleged violation of FACTA does not satisfy this requirement." The appeal follows. II. Analysis The District Court of Appeal finds Muransky persuasive, which aligns with its holding that the Appellant has not shown a concrete injury sufficient for standing. Muranksy relied in large part on the Supreme Court's holding in Spokeo, Inc. v. Robins, which is also similar to the instant case. The plaintiffs sued Spokeo for disseminating incorrect personal information on its search engine under the Fair Credit Reporting Act ("FCRA"). The FCRA awarded damages similar to FACTA, either actual damages or statutory damages ranging from $100 to $1,000 per violation. The Supreme Court in Spokeo held that "a bare procedural violation, divorced from any concrete harm" did not confer standing. The Appellant did not allege that he suffered a concrete, individualized harm as a result of the credit card numbers being printed on his receipt. Thus, he does not have an injury-in-fact that is concrete and particularized to meet standing requirements. The risk of future harm to the Appellant is also unavailing, since he kept the credit card receipt and there is no danger that the credit card number could result in any concrete injury to him. In summary, the District Court of Appeal finds the Appellant did not demonstrate an injury in fact that was "concrete," "distinct and palpable," and "actual or imminent." Failing this test, the trial court correctly granted Red Wing's motion to dismiss. As such, the District Court of Appeal affirms. III. Conclusion For these reasons, the District Court of Appeal affirms. A full-text copy of the Court's July 13, 2022 Order is available at https://tinyurl.com/2th39n74 from Leagle.com. Keith J. Keogh -- keith@keoghlaw.com -- of Keogh Law, LTD, in Chicago, Illinois, Scott D. Owens -- scott@scottdowens.com -- of Scott D. Owens, P.A., Hollywood, and Bret L. Lusskin -- blusskin@lusskinlaw.com -- of Bret L. Lusskin, P.A., Golden Beach, for the Appellant. Jordan S. Kosches -- jordan.kosches@gray-robinson.com -- of GrayRobinson, P.A., Miami, and David S. Almeida -- dalmeida@beneschlaw.com -- and Mark S. Eisen of Benesch, Friedlander Coplan & Aronoff, LLP, in Chicago, Illinois, for the Appellee. REHAB SYNERGIES: Appeals Final Judgment in Loy Labor Class Action ----------------------------------------------------------------- Rehab Synergies, L.L.C. is appealing a final judgment entered in the lawsuit styled Valerie Loy, on behalf of herself and all others similarly situated v. Rehab Synergies, LLC, Case No. 7:18-cv-000, in the United States District Court for the Southern District of Texas, McAllen. The lawsuit was filed by the Plaintiff on January 5, 2018 against the Defendants for failure to pay overtime pay for all hours worked 40 in a workweek. The Plaintiff was employed by the Defendant from March 2014 to August 2016 at its facility in McAllen, Texas. She filed suit in this Court alleging that she, and other similarly situated therapists, worked "off the clock or otherwise underreported their time" while employed by Defendant. She alleges that this off-the-clock work occurred as a result of the "onerous productivity requirements" set by Defendant. She also asserts that Defendant knew off-the-clock work was occurring and "expressly encouraged it." As a result of this practice, Plaintiff alleges she and other similarly situated employees have been "denied overtime payments that they are due" in violation of the Fair Labor Standards Act. On April 3, 2019, the Court granted Plaintiff's motion to conditionally certify a collective class of all therapists in five different jobs who worked for Defendant at any time after March 8, 2015. The Defendants filed a motion for decertification, as well as a motion for partial summary judgment and to dismiss certain plaintiffs. On September 2, 2021, the Court denied the Defendant's motion to decertify. The Court also denied in part and granted in part Defendant's motion for partial summary judgment. Summary judgment was denied as to the claim for willful violation of the FLSA. Summary judgment was granted in favor of Defendants as to these opt-in Plaintiffs and their claims and causes of action were dismissed with prejudice: 1. Wendy Adamo 2. Rhianna Acheson 3. Colette Boyd 4. Ballah Burch 5. Michelle Cole 6. Lana Crenshaw 7. Chavita Green 8. Deunta Jenkins 9. Paul Mendiola 10. Jennifer Mensah 11. Marsha Moneyheffer 12. Tracy Nolan 13. Vannoy Lin Reynolds 14. Jorgina Tamplen 15. Lula Gordon 16. Taryn Trason Following a trial by jury, verdict was entered in favor of Plaintiffs on March 8, 2022. On June 1, 2022, the Court rendered final judgment in favor of Plaintiffs. The Court ruled that each Plaintiff will recover from the Defendant the amount asked along with attorney's fees with an interest at the rate of 2.02% per annum from the date of the judgment until paid in full. The appellate case is captioned as Loy v. Rehab Synergies, Case No. 22-40411, in the United States Court of Appeals for the Fifth Circuit, filed on July 5, 2022.[BN] Defendant-Appellant Rehab Synergies, L.L.C. is represented by: Erika Leonard, Esq. OLGETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 301 Congress Avenue Austin, TX 78701 Telephone: (512) 640-7090 Plaintiffs-Appellees Valerie Loy, on behalf of herself and all others similarly situated, et al., are represented by: Roberto Luis Ramirez, Esq. RAMIREZ LAW FIRM, P.L.L.C. 820 E. Hackberry Avenue McAllen, TX 78501-0000 Telephone: (956) 668-8100 - and - Charles S. Siegel, Esq. Caitlyn E. Silhan, Esq. WATERS & KRAUS, L.L.P. 3141 Hood Street Dallas, TX 75219 Telephone: (214) 357-6244 SAFELITE FULFILLMENT: Order on Class Cert-Related Dates Entered --------------------------------------------------------------- In the class action lawsuit captioned as MARIE DEMARTINI, individually and on behalf of all others similarly situated, v. SAFELITE FULFILLMENT, INC., an Ohio Corporation, and DOES 1-10, inclusive, Case No. (N.D. Cal.), the Hon. Judge Maxine N. Chesney entered an order regarding certification-related dates: 1. The September 9, 2022 deadline Jan. 27, 2023 for Plaintiffs to file their Motion for Class Certification is extended to: 2. The October 28, 2022 deadline March 24, 2023 for Defendant to file its Opposition to the Motion for Class Certification is extended to: 3. The December 2, 2022 deadline April 21, 2023 for Plaintiffs to file their Reply in support of their Motion for Class Certification is extended to: 4. The January 2, 2023 at 9:00 a.m. May 12, 2023 hearing date for Plaintiffs' Motion for Class Certification is vacated and rescheduled for: Safelite Fulfillment was founded in 2004. The company's line of business includes the retail sale of paint, glass, and wallpaper. A copy of the Court's order dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3ogyIXz at no extra charge.[CC] The Attorneys for the Plaintiff Marie Demartini, are: James R. Hawkins, Esq. Christina M. Lucio, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 E-Mail: christina@ jameshawkinsaplc.com james@jameshawkinsaplc.com The Attorneys for the Plaintiff Willie Austin Jr., are: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. Piya Mukherjee, Esq. Victoria Rivaplacio, Esq. Charlotte E. James, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2255 Calle Clara La Jolla, CA 92037 E-mail: norm@bamlawca.com kyle@bamlawca.com aj@bamlawca.com aj@bamlawca.com piya@bamlawca.com victoria@bamlawca.com charlotte@bamlawca.com The Defendant is represented by: M. Leah Cameron, Esq. CDF LABOR LAW LLP 601 Montgomery Street, Suite 350 San Francisco, CA 94111 Telephone: (415) 981-3233 Facsimile: (415) 981-3246 E-Mail: lcameron@cdflaborlaw.com - and - Daneil J. Clark, Esq. Adam J. Rocco, Esq. Michael J. Shoenfelt, Esq. Amanda M. Miggo, Esq. VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street, P.O. Box 1008 Columbus, Ohio 43216-1008 Telephone: (614) 464-5497 Facsimile: (614) 719-4760 E-mail: DJClark@vorys.com ajrocco@vorys.com MJShoenfelt@vorys.com ammiggo@vorys.com SAN FRANCISCO HEALTH: Court Narrows Labor Claims in Johnson Suit ---------------------------------------------------------------- In the case, JAMIE JOHNSON, Plaintiff, v. SAN FRANCISCO HEALTH CARE AND REHAB INC., Defendant, Case No. 22-cv-01982-JSC (N.D. Cal.), Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California: (i) denies the Plaintiff's motion to remand; and (ii) grants in part and denies in part the Defendant's motion to dismiss. I. Background Ms. Johnson sued her former employer, the Defendant, in San Francisco Superior Court. The Defendant removed to federal court. The Plaintiff worked for the Defendant for six months in 2021. According to the complaint, the Defendant frequently failed to pay minimum wages, pay overtime wages, provide meal breaks and rest periods, timely pay final wages, and provide accurate itemized wage statements. The Defendant and the Service Employees International Union ("SEIU") have a collective bargaining agreement (the "SEIU CBA"). The Plaintiff filed the putative class action, alleging California Labor Code violations and a violation of California's unfair competition law. The Plaintiff sued the Defendant in San Francisco Superior Court. The Defendant filed a notice of removal ("NOR") and removed the case to federal court. The Plaintiff then amended the complaint in the state court. The Defendant filed an amended NOR in the Court. The Plaintiff filed a motion to remand the case back to the state court. The Defendant opposed remand and filed a motion to dismiss. II. Discussion A. Motion to Remand "Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." A defendant seeking removal to federal court "bears the burden of establishing that removal is proper," and the "removal statute is strictly construed against removal jurisdiction." "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." The Defendant argues that the Labor Management Relations Act ("LMRA") provides federal jurisdiction in this case because the LMRA preempts Plaintiff's state law claims. LMRA Section 301 provides federal jurisdiction over "suits for violation of contracts between an employee and a labor organization." When the LMRA applies, it completely preempts state law claims. The LMRA preemption inquiry has two parts. First, a court determines "whether the asserted cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA. If the right exists solely as a result of the CBA, then the claim is preempted." Second, if the right underlying the state claim exists independently of the CBA, the claim is preempted if the state law right is "substantially dependent on analysis of a collective bargaining agreement." The Defendant argues the LMRA preempts the Plaintiff's state law claims because the SEIU CBA preempts his various claims for relief. The Plaintiff objects that the Defendant may only establish federal jurisdiction based on the claims specifically referenced in Defendant's original NOR: (1) the overtime claim; (2) the meal break claims; and (3) the rest break claims. While the amended NOR and subsequent briefing better described the Defendant's LMRA preemption theory, the Defendant did not add any new "bases" for federal jurisdiction. Because the Defendant removed te action on the basis of federal question jurisdiction under 28 U.S.C. Section 1331 due to LMRA Section 301 preemption, Judge Corley considers whether the LMRA Section 301 preempts any of the claims in the Plaintiff's initial complaint. Specifically, the Defendant argues that LMRA Section 301 preempts (1) the Plaintiff's claim for overtime under Labor Code Section 510; (2) the Plaintiff's claims for meal and rest breaks; (3) the Plaintiff's claim for minimum wage payments; and (4) the Plaintiff's claims for timely final payments, itemized wage statements, and timely bimonthly pay. a. California Labor Code Section 510 The Defendant argues that the Plaintiff's claim for unpaid overtime wages arises from the SEIU CBA because California Labor Code Section 514 bars the Plaintiff's overtime claim under Labor Code Section 510. Alternatively, it contends that the Plaintiff's state law claim requires interpretation of the SEIU CBA. The Defendant has not met its burden on either point. Judge Corley holds that (i) if the Plaintiff is subject to a qualifying CBA as defined in Section 514, the overtime requirements in Section 510(a) do not apply even if he was not working an alternative workweek schedule; and (ii) the Plaintiff's "right to overtime" does not exist "solely as a result of the CBA" and the claim is not preempted at step one of the LMRA preemption test. Judge Corley also finds that it is not enough for the Defendant to provide a laundry list of provisions that they allege the Court must interpret to resolve the Plaintiff's claims; the Defendant must explain why interpretation, as opposed to mere reference to the CBA, is necessary. Because the Defendant has not met its burden, LMRA Section 301 does not preempt the Plaintiff's claim under Labor Code Section 510. b. Rest and Meal Periods The Plaintiff alleges the Defendant failed to provide rest and meal periods or compensation in lieu thereof under California Labor Code Sections 226.7 and 512. The Defendant contends that the LMRA preempts these claims because the claims are inextricably intertwined with the SEIU CBA and require interpretation of the SEIU CBA. Judge Corley finds that the Defendant has not established that the first step of the LMRA preemption test is met. The "Plaintiff's meal and rest break claims arise under state law and not solely by virtue of the CBA -- that the CBA includes provisions regarding meal and rest breaks is insufficient for preemption." With respect to the second step of the LMRA preemption test, the Defendant insists that the SEIU CBA's references to meal and rest breaks mean that resolution of the Plaintiff's meal and rest break claims would require interpretation of the CBA. However, Judge Corley finds that the state law rights are independent of the cited CBA term. In other words, the Defendant does not explain why the Plaintiff's state law break rights depend on the term "emergency" in the SEIU CBA. Thus, because the right at issue is not substantially dependent on analysis of a collective bargaining agreement, the Plaintiff's claims are not preempted under LMRA Section 301. c. Minimum Wage The Defendant's preemption arguments regarding the minimum wage claims similarly fail. First, Judge Corley finds that the Defendant fails to explain why the Court would need to interpret specific SEIU CBA provisions to adjudicate the Plaintiff's state law right to minimum wage payments. Second, the Defendant argues that "all the FAC claims are derivative of the overtime claims" and, thus, should be preempted or barred. But this argument fails because the Section 510 claim is not preempted. Thus, the Defendant has not met its burden to show that preemption applies as to the minimum wage claim. d. California Labor Code Section 204(c) Finally, the Defendant argues that Labor Code Section 204(c) exempts the Defendant from the Plaintiff's claims under California Labor Code Sections 201, 202, 203, 204, and 226. These provisions govern the timing of wage payments and the content of wage statements. Section 201 sets baseline rules for payment of wages upon discharge or layoff. Section 202 sets rules for payment of wages upon resignation. Section 203 sets penalties for willful violations of those and other provisions. Section 226 requires employers to provide itemized wage statements. And Section 204 provides baseline rules for the timing of semimonthly payments under the Labor Code. Judge Corley holds that the Plaintiff's claims under Sections 201, 202, 203 and 226 are not preempted under step one of the LMRA preemption test because 204(c) does not provide an exemption to those statutes. Moreover, the Defendant has not met its burden to show that interpreting the SEIU CBA is necessary to resolve the Plaintiff's claims under prong two. Thus, LMRA Section 301 does not preempt the Plaintiff's claims under Section 201, 202, 203 and 226. Judge Corley further finds that Section 204(d) provides that the "requirements of this section will be deemed satisfied by the payment of wages for weekly, biweekly, or semimonthly payroll if the wages are paid not more than seven calendar days following the close of the payroll period." Section 204(c)'s exemption for CBA pay arrangements that differ from the requirements in Section 204 operates independently of the Section 204(d) satisfaction provision. In other words, Section 204(d) states how employers may comply with Section 204(a), but it does not affect the exemption for employees covered by a CBA as described in 204(c). Thus, because LMRA Section 301 preempts the Labor Code Section 204(a) claim, there is federal jurisdiction over that claim. B. Defendant's Motion to Dismiss A claim preempted by Section 301 of the LMRA should be dismissed if brought by an employee who failed to exhaust the applicable CBA's grievance and arbitration process. Because the Plaintiff has not alleged exhaustion under the SEIU CBA for the Section 204 claim, that claim is dismissed. To the extent the Plaintiff's claim under California's Business & Professional Code Section 17200 is based on the Section 204 claim, that claim is also dismissed. C. Supplemental Jurisdiction As discussed, the Plaintiff's remaining causes of action are state law claims. Because the Court has not considered the merits of the Plaintiff's allegations, judicial economy favors declining to exercise supplemental jurisdiction. III. Conclusion For the reasons she stated, Judge Corley denies the Plaintiff's motion for remand. She grants in part and denies in part the Defendant's motion to dismiss: The Plaintiff's Labor Code Section 204 is dismissed as preempted by the LMRA and in all other respects the motion to dismiss is denied. Because the Court declines supplemental jurisdiction over the remaining claims, the case is remanded to the San Francisco Superior Court. The Order disposes of Docket Nos. 15, 18. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/mr2kp8vn from Leagle.com. SCRANTON SCHOOL DISTRICT: O'Donnell May Amend Complaint in 30 Days ------------------------------------------------------------------ In the case, ALBERT P. O'DONNELL, REBECCA M. O'BRIEN, and GEORGE GEVARAS, on behalf of themselves and all others similarly situated, Plaintiffs v. SCRANTON SCHOOL DISTRICT, et al., Defendants, Civil Action No. 3:20-CV-225 (M.D. Pa.), Judge Robert D. Mariani of the U.S. District Court for the Middle District of Pennsylvania grants the Defendants' Motion to Dismiss the Complaint and dismisses the Plaintiffs' Class Action Complaint without prejudice. The Plaintiffs may file an amended complaint within 30 days of the date of the Order. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/yfwauz22 from Leagle.com. SCRANTON SCHOOL DISTRICT: O'Donnell Suit Dismissed W/o Prejudice ---------------------------------------------------------------- In the case, ALBERT P. O'DONNELL, REBECCA M. O'BRIEN, and GEORGE GEVARAS, on behalf of themselves and all others similarly situated, Plaintiffs v. SCRANTON SCHOOL DISTRICT, et al., Defendants, Civil Action No. 3:20-CV-225 (M.D. Pa.), Judge Robert D. Mariani of the U.S. District Court for the Middle District of Pennsylvania grants the Defendants' Motion to Dismiss the Complaint and dismisses the Plaintiffs' Class Action Complaint without prejudice. I. Introduction The Defendants' Motion to Dismiss the Complaint is pending before the Court. With the Motion, the Defendants ask the Court to dismiss the Plaintiffs' Class Action Complaint with prejudice. The three named Plaintiffs in the Class Action Complaint ("Complaint") are Albert O'Donnell, principal of a Scranton School District elementary school, Rebecca O'Brien, a teacher in a Scranton School District middle school, and George Gevaras, a former maintenance worker at numerous Scranton School District schools. In addition to the Scranton School District, the Defendants are current and former School Board Members in the District. The 42 U.S.C. Sections 1983 and 1988 action is based on the Plaintiffs' allegations that the District has numerous confirmed instances of asbestos contamination and lead in the drinking water in its schools, and the District was made aware of these problems. The Plaintiffs maintain in their supporting brief that the Defendants' "deliberate indifference to the Plaintiffs' safety, combined with their false affirmation that the Schools were safe, created a dangerous condition in the Schools resulting in the Plaintiffs' and putative class members' exposure to asbestos and lead." The Plaintiffs' Complaint, filed on Feb. 7, 2020, contains two counts: Count I asserts a State Created Danger claim pursuant to 42 U.S.C. Sections 1983 and 1988; Count II asserts a Medical Monitoring claim pursuant to 42 U.S.C. Sections 1983 and 1988. II. Background The Plaintiffs are current or former District employees. The Defendants are the District and current or former School Board Members. The Individual Defendants allegedly had access to and were able to review environmental engineering reports about the presence of asbestos and lead in the District Schools ("Schools"). At all relevant times, the District owned, possessed, and controlled the Schools. At the end of January 2020, the District officials first revealed widespread asbestos and lead issues affecting most of the Schools in the District. During the week of Jan. 27, 2020, the District closed four Schools (Northeast Intermediate, Prescott Elementary, Willard Elementary, and Robert Morris Elementary) due to the presence of airborne asbestos and lead in the drinking water. At the time the Complaint was filed, one of the Schools remained closed, and the others re-opened without a complete explanation as to what was done to remediate them. The Plaintiffs allege that the Defendant District and the Defendant School Board Members knowingly allowed the presence of asbestos and lead in unsafe levels within the Schools for an extended period and did not do anything to properly correct the problems or notify students, parents, employees, and independent contractors of the presence of asbestos and lead in unsafe levels until January 2020. They bring their claims as a class action pursuant to Rule 23(a), (b)(1), (b)(2) and (b)(3) on behalf of the class defined as follows: All persons who attend or attended Schools within the District as students, all parents and/or legal guardians of persons who attend or attended Schools within the District as students, all persons who work or worked in Schools within the District as employees; and all persons who are allowed or were allowed to be present in the Schools within the District from 2016 to the present." Excluded from the Class are those who only attended or worked at the new Scranton High School, Whittier Elementary, Tripp Elementary, and Kennedy Elementary during the respective Class period; the individual District Board Member Defendants; and anyone who has already manifested a disease a result of exposure to asbestos or lead in the District Schools. III. Analysis The Defendants contend that the Court should dismiss the Plaintiffs' Complaint on numerous grounds: 1) Supreme Court precedent forecloses the Plaintiffs' substantive due process claims based on allegedly unsafe work environments; 2) the Plaintiffs fail to state a claim under the theory of a state-created danger asserted in Count I; 3) the Plaintiffs fail to state a claim in Count II because they are not entitled to medical monitoring under 42 U.S.C. Section 1988; 4) the Plaintiffs have failed to state a claim for municipal liability pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), against Defendant District; 5) Claims against the Individual Defendants in their official capacities should be dismissed because they are redundant of claims against Defendant District; and 6) Claims against individual Defendants are insufficiently pled and barred by the doctrine of qualified immunity. A. Substantive Due Process Claims Based on Allegedly Unsafe Work Environments The Defendants first maintain that the Plaintiffs' claims are categorically barred by Collins v. City of Harker Heights, 503 U.S. 115 (1992), which holds that the Fourteenth Amendment does not require a state `to provide its employees with certain minimal levels of safety and security.'" The Plaintiffs respond that the facts of this case differ from those in Collins such that the requisite standard is satisfied. Judge Mariani agrees that a claim that an employer failed to provide a workplace that is free from unreasonable risks of harm would fail, but concludes that Collins does not categorically foreclose the Plaintiffs' substantive due process claim. He does not disagree with the Defendants' cited authority. However, he says, in seeking a categorical bar, the Defendants cannot satisfy their burden of showing that the Plaintiffs' substantive due process claim should be dismissed with prejudice by summarily concluding in the margin that the "Plaintiffs' claims are predicated on a 'public employer's alleged ordinary breach of its duty of care relative to its employees,' which is not a constitutional harm." Further, because the Plaintiffs' proposed class includes students and others and substitution of class representatives is allowed at the pre-certification stage, the Defendants' request to dismiss all substantive due process claims with prejudice based on their Collins argument, which applies only to employees, is properly denied. B. State-Created Danger The Defendants next contend that the Plaintiffs' Fourteenth Amendment state-created danger claim set out in Count I of the Complaint must be dismissed because their allegations cannot satisfy any of the elements under this theory of liability. The Plaintiffs respond that they properly plead each element of a state-created danger claim. Judge Mariani concludes that the Defendants have shown that Count I of the Plaintiffs' claim is properly dismissed. He finds that (i) the Plaintiffs' have not satisfied the first requirement for pleading a state-created danger claim; (ii) because the Defendants' arguments regarding the second element of a state-created danger claim do not show that the Plaintiffs have not plausibly pled conscience-shocking behavior, the Plaintiffs have plausibly pled conscience-shocking behavior; (iii) he does not consider "all persons who are allowed or were allowed to be present in the Schools within the District from 2016 to the present" a discrete group given its nebulous contours and the foreseen great difficulty in discerning whether an individual is properly considered a member of the group; and (iv) the Plaintiffs have not sufficiently pled the necessary affirmative action on the part of Defendants to maintain their state-created danger claim. With this conclusion, Judge Mariani dismisses tCount I of the Plaintiffs' Complaint must be dismissed. C. Medical Monitoring Claim The Defendants contend that Count II of the Plaintiffs' Complaint fails to state a claim because they "fail to identify any federal or constitutional right that is actionable under Section 1983." The Plaintiffs rely on Wright v. City of Philadelphia, Civ. A. Nos. 10-1102, 11-5990, 12-114, 2105 WL 894237 (E.D. Pa. Mar. 2, 2015) to support their position that Count II states a valid claim under Sections 1983 and 1988. Judge Mariani concurs with the Defendants that the Plaintiffs have not pled an actionable federal claim in Count II. He says, the Plaintiffs' reliance on Wright does not undermine this determination in that the Court does not read Wright to establish an independent federal/constitutional cause of action based on the alleged need for medical monitoring in the absence of a relationship between the harm, i.e., the need for increased medical monitoring, and a separately cognizable federal or constitutional claim for relief. Wright ultimately concluded that the plaintiffs had satisfied the requirements of their state-created danger claim in a situation where the defendant Philadelphia Housing Authority's maintenance crew had caused asbestos to become airborne in a plaintiff's apartment and their supervisor knew of the problem, knew that it could cause harm, and subsequently told the plaintiff not to worry about "the little white stuff floating in the air" which she had complained about. These facts are readily distinguishable from those alleged in the Plaintiffs' Complaint and provide no support for the viability of Count II. D. Municipal Liability Claims The Defendants assert that the Plaintiffs' allegations are insufficient to state a claim for municipal liability because they plead no facts to support imposing liability on the School District. The Plaintiffs maintain that they have alleged sufficient facts "to raise a reasonable expectation that discovery will reveal further evidence of the School District's policies and customs which violated the Plaintiffs' rights." Judge Mariani agrees that the Plaintiffs' Complaint does not identify a custom, policy, or decision maker as required for liability pursuant to Monell and its progeny. However, the issue of municipal liability need not be further discussed at this juncture based on the determination that both claims in the Plaintiffs' Complaint are properly dismissed. E. Official Capacity Claims The Defendants state that the Plaintiffs do not specify whether they assert claims against Defendant Board Members in their individual or official capacities and, to the extent the claims are brought against Defendant Board Members in their official capacities, they must be dismissed as redundant of the claims brought against the District. The Plaintiffs agree that claims against Defendant Board Members in their official capacities "are essentially claims against the School District Defendant, but "they can properly proceed as an alternative should the District be dismissed for any reason." Taking both parties' positions into consideration, Judge Mariani concludes that dismissal of Defendant Board Members in their official capacities without prejudice is appropriate. F. Qualified Immunity The Defendants assert that the doctrine of qualified immunity bars the Plaintiffs' claims against Defendant Board Members. The Plaintiffs respond that the Defendants have not met their burden of showing that qualified immunity applies. Judge Mariani concludes that the Defendants have shown that the Plaintiffs' claims against Defendant School Board Members are barred by the doctrine of qualified immunity. Given the broad recognition by the Supreme Court and Third Circuit that a reviewing court conducting the clearly established inquiry should frame the issue with specificity, he agrees with the Defendants that no caselaw suggests that Defendant Board Members could have been on notice that their conduct violated a constitutional right given the factual allegations in the Complaint. Thus, he concludes that Defendant Board Members are entitled to qualified immunity. IV. Concludes For the reasons he set forth, Judge Mariani grants the Defendants' Motion to Dismiss the Complaint. While it appears unlikely that the Plaintiffs can overcome the pleading deficiencies and qualified immunity defense discussed, in an abundance of caution, he allows the Plaintiffs to file an amended complaint. A separate Order will be entered. A full-text copy of the Court's July 15, 2022 Memorandum Opinion is available at https://tinyurl.com/45sbu24u from Leagle.com. SEALED AIR: Court Amends Scheduling Order in UA Local Class Suit ---------------------------------------------------------------- In the class action lawsuit captioned as UA Local 13 & Employers Group Insurance Fund v. Sealed Air Corporation, et al., Case No. 1:19-cv-10161-LLS (S.D.N.Y.), the Court entered an amended scheduling order as follows: -- Deadline for Production of July 6, 2022 Aug. 6, 2022 Expert Witness Reports on Issues for Which They Have the Burden of Proof -- Deadline for Opposition Aug. 3, 2022 Sept. 20, 2022 Expert Witness Reports Deadline and Production of Rebuttal Expert Witness Reports: -- Deadline for Completion of Aug. 24, 2022 Oct. 17, 2022 Expert Depositions: Sealed Air is a packaging company known for its brands: Cryovac food packaging and Bubble Wrap cushioning packaging. It sold off its stake in Diversey Holdings in 2017. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3OlaJkH at no extra charge.[CC] SEGA OF AMERICA: Muto Appeals Rigged Arcade Machine Case Dismissal ------------------------------------------------------------------- Plaintiff MARCELO MUTO filed an appeal from a court ruling entered in the lawsuit entitled Marcelo Muto, individually and on behalf of all others similarly situated, Plaintiff, v. Sega of America, Inc., Play It! Amusements, Inc., Komuse America Inc., Defendants., Case No. 21-cv-01161, in the United States District Court for the Central District of California, Riverside. As reported in the Class Action Reporter, the lawsuit, filed on July 12, 2021, seeks injunctive and monetary relief and additional relief for violation of California's Consumers Legal Remedies Act. Key Master Machine is an amusement arcade machine that is won by successfully moving the player-controlled key to stop and enter into a "keyhole" in the machine. Muto claims that the machines are rigged and are designed to prevent users from being able to win until a set number of unsuccessful plays have been completed. Muto played the Key Master Machine on multiple occasions around mid-to-late 2019 at the Westfield Mall in Palm Desert, California, says the suit. On January 25, 2022, the Defendants filed a motion to dismiss the Plaintiff's first amended class action complaint. On June 2, 2022, the Court entered an Order granting Defendants' motion to dismiss. The appellate case is captioned as Marcelo Muto v. Sega Amusements International, Ltd., et al., Case No. 22-55646, in the United States Court of Appeals for the Ninth Circuit, filed on July 6, 2022. The briefing schedule in the Appellate Case states that: -- Appellant Marcelo Muto Mediation Questionnaire was due on July 13, 2022; -- Appellant Marcelo Muto opening brief is due on September 6, 2022; -- Appellees Play It! Amusements, Inc., Sega Amusements International, Ltd. and Sega Corporation answering brief is due on October 5, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant MARCELO MUTO, individually and on behalf of all others similarly situated, is represented by: Benjamin Heikali, Esq. Joshua Nassir, Esq. FARUQI & FARUQI, LLP 1901 Avenue of the Stars, Suite 1060 Los Angeles, CA 90067 Telephone: (424) 256-2884 - and - Michael Liskow, Esq. CALCATERRA POLLACK LLP 1140 Avenue of the Americas New York, NY 10036-5803 Telephone: (212) 899-1761 Defendants-Appellees SEGA AMUSEMENTS INTERNATIONAL, LTD., et al., are represented by: Mariah Lorraine Brandt, Esq. Pauleen Truong, Esq. PILLSBURY WINTHROP SHAW PITTMAN, LLP 725 S Figueroa Street, 36th Floor Los Angeles, CA 90017 Telephone: (213) 488-7234 - and - Michael Roy Williams, Esq. BIENERT KATZMAN LITTRELL WILLIAMS, LLP 903 Calle Amanecer, Suite 350 San Clemente, CA 92673 Telephone: (949) 369-3700 SHARED IMAGING: Class Cert Hearing Bid Set for August 19 -------------------------------------------------------- In the class action lawsuit captioned as Monica Ranger v. Shared Imaging, Case No. 2:20-cv-00401 (E.D. Cal.), the Hon. Judge Kimberly J. Mueller entered an order on motion to certify class with amended hearing date . Motion Hearing is set for Aug. 19 2022 at 10:00 AM in Courtroom 3 (KJM) before Chief District Judge Kimberly J. Mueller. The nature of suit states labor litigation involving employment discrimination. Shared Imaging is a hospital & health care company specializing in multi-vendor service solutions.[CC] SONAM'S STONEWALLS: First Cir. Affirms Verdict Finding for Gonpo ---------------------------------------------------------------- In the case, JAMPA GONPO, on behalf of himself and others similarly situated, Plaintiff, Appellee v. SONAM'S STONEWALLS & ART, LLC, d/b/a Sonam's Stonewalls and Art; SONAM RINCHEN LAMA, Defendants, Appellants, Case No. 21-1352 (1st Cir.), the U.S. Court of Appeals for the First Circuit affirms the finding that Lama is liable for failing to pay all the wages owed to the Plaintiff. I. Introduction A Springfield, Massachusetts jury found Defendants Sonam Rinchen Lama and Sonam's Stonewalls & Art, LLC (collectively, "Lama") liable for failing to pay all the wages owed to their former employee, the Plaintiff. Appealing from the hefty tab the jury left him, Lama trains his focus on two of the district court's evidentiary decisions -- one to exclude, and one to admit evidence -- and asks the First Circuit to remand for a new trial. Discerning no reversible error, it affirms. II. Background Mr. Gonpo originally hails from Nepal, where he first met Lama (a Tibetan immigrant) in 2004. While in Nepal on a trip, Lama befriended Gonpo, and three years later, there was an arrangement between the two for Gonpo to move to the United States. There was some dispute at trial over who asked whom to come over, but suffice it to say that Lama fronted the cash for the $20,000 bill of getting Gonpo. Soon after Gonpo's arrival stateside, he began working for Lama in Lama's stonemasonry business in 2008. The stonemasonry business is seasonal. Workers generally don't start up until sometime around March or April because, any earlier, the ground is still frozen from the New England winter, and things usually end sometime in November or December, when the first snowfall comes. Hotly in dispute in the case was how many hours per week workers toiled during those in-season months. On the one hand, Gonpo testified that he and his associates worked six days per week (with only Sundays off), with weekly hours totaling about 56 or 57 hours. He lined up testimony from one of his former colleagues that his hours were similar. Lama, though, claims that none of his employees worked more than 40 hours in a week, and he lined up testimony from three of his other employees to that effect. Yet Lama has no timekeeping records to back up that assertion, instead casting blame on his bookkeeper, on whom he relied to handle that part of the business, but who according to Lama turned out to be incompetent and a thief. Mr. Gonpo held his position with Lama's business until the end of the season in 2015, after which he was fired in February 2016. His termination came in the wake of allegations from Lama's then-16-year-old daughter that Gonpo had raped her. After police reports were generated and an investigation concluded, Gonpo was charged in Massachusetts state court. Following a trial he was ultimately acquitted. Not long after the criminal proceedings were instituted in 2016, Gonpo filed this lawsuit. He brought a host of claims both on his own behalf and as a putative class action on behalf of other employees similarly situated. As relevant to the First Circuit review, his allegations included claims that Lama failed to pay him a minimum wage for all hours worked and failed to appropriately pay overtime, in violation of both the federal Fair Labor Standards Act, 29 U.S.C. Sections 206(a)(1), 207(a)(1), 215(a)(2), and Massachusetts law, Mass. Gen. Laws ch. 149, Section 148 and ch. 151 Sections 1A-1B. Under the applicable statutes of limitations, the relevant time period for Gonpo's claims was from September 2013 through November 2015. After pre-trial motion practice seeking some advance-of-trial evidentiary rulings, the case was put to a jury over the course of five days. Objections and sidebar conferences abounded during the tense trial, as the parties scrapped over the admissibility of various testimonies and pieces of evidence throughout. Ultimately, the jury returned a verdict finding for Gonpo. After some more post-trial motion-practice skirmishes, Lama timely appealed (though his notice of appeal has since become a subject of controversy). III. Discussion A. The Impeachment Evidence The First Circuit begins with the district court's exclusion of evidence that Lama's then-16-year-old daughter accused Gonpo of rape just months before Gonpo began to pursue the wage claims at issue. Pre-trial, Lama moved in limine for permission to introduce evidence of these allegations to show that Gonpo brought this suit to manipulate the rape prosecution and pressure Lama's daughter to drop the case. Gonpo, of course, opposed the introduction of this evidence, contending the evidence was immaterial and subject to exclusion under Rule 403 given its great possibility for prejudice. The First Circuit finds that the allegations that Gonpo raped Lama's then-16-year-old daughter would certainly be "explosive" evidence of a "shocking or heinous crime likely to inflame the jury." Those allegations raise the specter that even if the jurors believed that Gonpo had a legitimate wage claim uninfected with bad motive, they might nonetheless find against Gonpo out of disgust for his bad acts -- particularly where finding for Gonpo would foist a financial burden on the family of the alleged victim. And that is precisely the concern that the district court, aligning with Rule 403, sought to avoid. This is far from the rare and extraordinarily compelling circumstance where we will reverse that judgment call. Nor, the First Circuit notes, was Lama's defense entirely hamstringed as he now bemoans. Contrary to Lama's assertion that he was "robbed" of his ability to draw Gonpo's credibility into question, Lama spent time aplenty poking holes in Gonpo's story on cross-examination. In short, Lama had other opportunities, using less incendiary evidence, to marshal a robust defense. B. Colleague's Testimony and Related Evidence Lama next claims error in the district court's admission of testimony, along with documentary evidence, from one of Gonpo's former colleagues, Jamyang Gyatso. Gyatso testified (over objection) at trial concerning his own experience working for Lama from 2008 to 2013, the last year of which overlapped with Gonpo's work during the relevant limitations period. On appeal wielding a hatchet instead of a scalpel, Lama claims that the entirety of Gyatso's testimony, as well as his pocket calendar recording his 2012 work hours, are inadmissible under either Rule 406 or Rule 404(b). Applying the newly minted Rule 3(c)(6), the First Circuit concludes that Lama's notice of appeal -- specifying both the final judgment and some interlocutory orders -- does not prohibit him from challenging other interlocutory orders not specifically enumerated in the notice of appeal. Had he wished to "so limit" his notice, Lama would have been required to state expressly "that the notice of appeal was so limited." Yet nothing in Lama's notice reflects an "express statement" limiting the notice of appeal to these orders, particularly in light of his separate designation of the final judgment, in which the challenged evidentiary rulings on Gyatso's testimony and accompanying documentary evidence merged. The First Circuit thus has jurisdiction to consider Lama's challenges to these orders. Turning to the merits, Lama raises on appeal three qualms with the admission of Gyatso's testimony and the pocket-calendar evidence. The First Circuit finds that (i) Lama fails to offer a developed or coherent argument why -- based on the facts actually revealed at trial -- the district court abused its discretion in finding Rule 406's sampling-and-uniformity test satisfied here to establish Lama's routine practices; (ii) the calendar served to corroborate Gyatso's testimony that he worked about 57 hours per week in 2013 by pointing to documentary evidence supporting that he had in fact worked those same hours in the past; and (iii) Lama identifies no authority to otherwise support his contention that because Rule 403 applies, so, too, does Rule 404(b). To be sure, the First Circuit remains mindful that because Rule 406 evidence "necessarily engenders the very real possibility that such evidence will be used to establish a party's propensity to act in conformity with its general character," it could "thereby thwart Rule 404's prohibition." But that is why we apply a high standard for evidence to be admissible under Rule 406. IV. Conclusion All told, the First Circuit affirms. The parties will bear their own costs. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/398jtn6v from Leagle.com. Thomas T. Merrigan, with whom Sweeney Merrigan Law, LLP, was on brief, for the Appellants. Tiffany Troy -- troylaw@troypllc.com -- with whom Aaron B. Schweitzer and Troy Law, PLLC, were on brief, for the Appellee. SONY INTERACTIVE: Court Dismisses Caccuri Suit With Leave to Amend ------------------------------------------------------------------ In the cases, AGUSTIN CACCURI, Plaintiff v. SONY INTERACTIVE ENTERTAINMENT LLC, Defendant. ADRIAN CENDEJAS, Plaintiff, v. SONY INTERACTIVE ENTERTAINMENT LLC, et al., Defendant. ALLEN NEUMARK, Plaintiff v. SONY INTERACTIVE ENTERTAINMENT LLC, et al., Defendant, Case Nos. 21-cv-03361-RS, 21-cv-03447-RS, 21-cv-05031-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California grants Sony's motion to dismiss the Consolidated Class Action Complaint. I. Introduction Defendant Sony moves to dismiss the Consolidated Class Action Complaint for these three related antitrust putative class actions pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs Agustin Caccuri, Adrian Cendejas, and Allen Neumark aver that Sony engaged in monopolistic and anticompetitive conduct in the sale of digital PlayStation games on its PlayStation Store, averring violations of Section 2 of the Sherman Antitrust Act, 15 U.S.C. Section 2, and California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code Section 17200. The motion to dismiss is granted because the Plaintiffs have failed to allege adequately anticompetitive conduct under the Sherman Act, and the other claims are derivative of the Sherman Act claims. II. Background In May and June 2021, these three putative class actions were filed in the Northern District of California. On June 4, 2021 the Cendejas action was related to the Caccuri action, and on July 27, 2021, the Neumark action was also related to the Caccuri action. On Dec. 3, 2021, Michael M. Buchman of Motley Rice LLC was appointed Interim Lead Counsel for all three related actions. The Plaintiffs filed a Consolidated Class Action Complaint on Dec. 20, 2021. In the Consolidated Class Action Complaint, the Plaintiffs aver five claims for relief: (1) monopolization under Section 2 of the Sherman Act, 15 U.S.C. Section 2 and Section 4 of the Clayton Act, 15 U.S.C. 4; (2) attempted monopolization under Section 2 of the Sherman Act, 15 U.S.C. Section 2 and Section 4 of the Clayton Act, 15 U.S.C. 4; (3) declaratory and injunctive relief under Section 2 of the Sherman Act, 15 U.S.C. Section 2 and Sections 2 and 16 of the Clayton Act, 15 U.S.C. Section 26; (4) damages under the California Unfair Competition Law, Cal. Bus. & Prof. Code Sections 17200, et seq.; and (5) unjust enrichment. Sony manufactures, markets, and sells the PlayStation, one of the most popular home video game systems. Sony launched its most recent model, the PlayStation 5, in November 2020, and by September 2021 it had sold over 13 million units. In addition to producing the physical game console, the PlayStation franchise has many other arms: the PlayStation Store (an online digital video game store), the PlayStation Network (an online multiplayer gaming service), PlayStation Now (a subscription-based video game streaming service), and PlayStation Studios (the video game development arm). Most relevant for this litigation is the PlayStation Store, which launched in 2006 and allows users to purchase digital copies of PlayStation games and download them directly onto the console, rather than having to buy physical disks and insert them into the console's disk drive. Sony sells two versions of the PlayStation 5: the $499 Base Model allows users to purchase either physical disks or digital versions of games and the $399 Digital Edition is only compatible with digital games downloaded from the PlayStation Store. On the PlayStation Store, game developers cannot set prices; instead, the prices are set by Sony. Further, the prices for a digital version of a game on the PlayStation Store may vary from the prices for a physical copy of the game available through any number of retailers. Until April 2019, game developers could sell download codes for digital PlayStation games through the same online and brick-and-mortar retailers of the physical games. When this practice was active, the prices for download codes could vary from the prices in the PlayStation Store. When Sony eliminated the download code option, that meant the price in the PlayStation Store was the only possible price for acquiring a digital copy of a PlayStation-compatible game. Although Sony's PlayStation is highly popular, it is not the only video game console on the market. Major competitors include the Xbox from Microsoft and the Switch from Nintendo. While some major video games have versions produced for each of the three consoles, a purchased video game is only compatible with one specific console. For example, a consumer who owns both a PlayStation and Xbox and wants to play the "NBA 2K22" game would need to purchase two versions of the game, one compatible with PlayStation and one compatible with Xbox. The different console manufacturers have different practices concerning the production and sale of games for their consoles. While 85% of game sales for the Switch console are for games developed by Nintendo that are exclusive to its console, only 17% of game sales for PlayStation are games developed by Sony. Microsoft and Nintendo also operate their own virtual stores to download games directly to consoles. The Microsoft and Nintendo online stores, however, allow developers to set the retail price for the game. III. Discussion Sony argues that the Complaint should be dismissed because (1) the Plaintiffs have failed to allege monopoly power or a dangerous probability of achieving monopoly power in a properly-defined relevant antitrust market; (2) the Plaintiffs have failed to allege anticompetitive conduct; (3) the Plaintiffs have failed to allege anticompetitive effects or antitrust injury; and (4) the Plaintiffs have failed to allege facts supporting its derivative claims. Judge Seeborg holds that the Plaintiffs have failed to plead one of the elements required to establish anticompetitive conduct. First, he finds that the Plaintiffs have offered "factual allegations to rebut the economic presumption that PlayStation consumers make a knowing choice to restrict their aftermarket options when they decide in the initial (competitive) market" to purchase a PlayStation console rather than another console. Second, he finds that the Plaintiffs have failed to plead anticompetitive conduct necessary for their Sherman Act claims. He says, the Plaintiffs provide conclusory statements that Sony voluntarily terminated a profitable practice, but do not provide sufficient factual detail. Although it seems almost certain that Sony gained some revenue through download codes, and the Plaintiffs need not at this stage prove that the practice was profitable, the Plaintiffs must at a minimum describe the process through which Sony earned money from the practice. Judge Seeborg cannot assume the practice was profitable when the Plaintiffs have failed to plead how Sony received any money through the practice. Third, Judge Seeborg holds that the Plaintiffs have pled an anticompetitive effect because, at a minimum, they have pled increased prices. The Plaintiffs plead that numerous games are more expensive in digital versions than in physical versions, despite additional costs present for physical versions like the production of the materials and shipping. Although as the Defendant points out there may be other reasons for the increased prices, and physical versions of the game may not be the appropriate benchmark, the Plaintiffs have at this stage pled increased prices. The Plaintiffs have also pled an "injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful." Maintaining supracompetitive prices is a cognizable antitrust injury, and the Plaintiffs argue that Sony's actions were designed to maintain supracompetitive prices. Lastly, the Plaintiffs' UCL claim is derivative of their Sherman Act claims, and because the Sherman Act claims are not adequately pled, the UCL claim must be dismissed. The claim for unjust enrichment fails for the same reason. IV. Conclusion For all the foregoing reasons, Judge Seeborg grants the motion to dismiss because the Plaintiffs have failed to allege adequately anticompetitive conduct under the Sherman Act, and the other claims are derivative of the Sherman Act claims. Although it is unclear at this time if the deficiencies may be cured, he grants the Plaintiff leave to amend. Any amended Complaint must be filed within 30 days of the filing of the Order. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/3kzkxtdv from Leagle.com. SPRINGFIELD, MA: Class Status Bid in Firefighters' Bias Suit Nixed ------------------------------------------------------------------ In an article for JDSupra.com, Alex Karasik and Gerald Maatman Jr. of Seyfarth Shaw LLP wrote that In Savage, et al. v. The City of Springfield, Case No. 3:18-CV-30614, 2022 LEXIS 124587 (D. Mass. July 14, 2022), a federal court in Massachusetts recently denied Plaintiffs' motion for class certification, holding that (1) Plaintiffs failed to establish that a putative class of Black and Hispanic firefighters met the numerosity requirement of Rule 23(a)(1); and (2) that the seminal ruling in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), barred certification of a Rule 23(b)(2) class as sought by Plaintiffs. This ruling is well worth a read by employers, and will be useful to cite when plaintiffs attempt to certify small class actions that hover near the 40-person threshold, as well as when potential damages may require an individualized analysis. Case Background On March 17, 1995, the City of Springfield, Massachusetts implemented an ordinance requiring many municipal employees to reside in the City as a condition of employment. Id. at *3-4. In May of 2016, Plaintiffs sued the City, the Springfield Fire Department, the Springfield Fire Chiefs Association, and others, alleging a long-standing non-compliance with the residency ordinance prompted by promotions of non-resident employees of the Fire Department to higher ranking positions. Id. at *5. In relevant part, Plaintiffs sought to certify a class of, "all current and former Black and Hispanic firefighters employed by the Springfield Fire Department since March 17, 1995." Id. at *26-27. At oral argument, counsel for Plaintiffs identified the primary class claim as emanating from the City's alleged arbitrary and capricious enforcement of the residency ordinance. Plaintiffs further alleged that the City had a practice of maintaining a racially hostile and retaliatory work environment, and sought to include hostile work environment as a claim asserted on behalf of the class. Following Plaintiffs' motion for class certification, Defendants sought to exclude various pieces of evidence, including Plaintiffs' expert declaration and supporting testimony, non-expert declarations, social media posts, and agency decisions. Court's Decision The Court denied Plaintiffs' motion for class certification. First, analyzing the Rule 23(a)(1) class certification requirement, the Court held that Plaintiffs' calculation of fifty putative class members was insufficiently supported. Id. a *30. Specifically, the Court observed that Plaintiffs cited to three paragraphs of their expert's declaration that were not directed at the question of how many minority firefighters were denied promotional opportunities, but rather, the racial composition of the ranks of lieutenant, captain, and above. The Court opined that one of Plaintiff's declarations made no effort to explain how he arrived at the estimate of 50 potential class members, and at most, he established there would be 32 class members, which was below the 40 class member threshold required by Rule 23. Accordingly, the Court held that the numerosity requirement was not met. Id. at *35. Second, the Court addressed the commonality requirement per Rule 23(a)(2). Id. Plaintiffs argued "that the common questions of law and facts are whether the City discriminated against Black and Hispanic firefighters in the Springfield Fire Department, in violation of the First and Fourteenth Amendments of the U.S. Constitution, Title VII of the Civil Rights Act of 1964 . . . and 42 U.S.C. Sections 1981, 1983, and 1988 by maintaining a racially hostile work environment and allowing white applicants to violate the City's valid and enforceable residency law for well over 20 years, and retroactively excusing white firefighters from compliance with the residency law after Plaintiff filed lawsuits challenging the City's enforcement practices." Id. After addressing and dismissing the constitutional challenges, the Court held in relevant part that pursuant to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), it was "not sufficient for Plaintiffs to merely allege 'that they have all suffered a violation of the same provision of law,' id., 564 U.S. at 350, which is precisely what Plaintiffs have done in their proposed common question." Id. at *37. After reviewing Plaintiffs' evidence, the Court held that Plaintiffs allegedly suffered the same injury (deprivation of promotional opportunities), from the same source (non-enforcement of the residency ordinance), and thus established commonality. Id. at *42. Third, the Court held that Plaintiffs satisfied Rule 23(a)(4)'s adequacy factor, which dictates that the proposed class representatives must fairly and adequately protect the interests of the class. Id. at *44-45. Plaintiffs argued that they were adequate representatives because they had no conflicts of interest with the proposed members of the class; to the contrary, their interests in ensuring that Defendants are held accountable for their discriminatory promotion practices were perfectly aligned. Id. at *45. The Court held that Plaintiffs met the adequacy requirement since there appeared to be no conflicts between Plaintiffs and other current and former minority employees of the Fire Department, who would have the same interest in ensuring enforcement of the residency ordinance and recovering unpaid wages and benefits from Defendants. Id. at *46. Finally, the Court held that Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), barred certification of a Rule 23(b)(2) class, as sought by Plaintiffs. The Court explained that incidental damages that are permissible under Rule 23(b)(2) are those that would flow to the class as a whole by virtue of its securing the sought after injunctive relief. Id. at *47 (citations and quotations omitted). Noting that Plaintiffs' counsel acknowledged at oral argument that the award of damages would require individualized assessment for each minority firefighter denied a promotional opportunity, the Court held that monetary damages Plaintiff seek do not meet these requirements. Accordingly, because Plaintiffs failed to meet the requirements Rule 23(a)(1) and Rule 23(b)(2), the Court denied Plaintiffs' motion for class certification. Implications For Employers While Plaintiffs may have had potentially strong arguments for a handful of individuals, this ruling illustrates that courts will carefully examine motions for class certification in accordance with Rule 23, regardless of the strength of the claims of the lead Plaintiffs. In situations where the putative class size is close to 40 members but short of that baseline, and hence numerosity may be in question, employers would be wise to consider citing the Court's scrutiny here of Plaintiffs' declaration testimony. Finally, from a big picture standpoint in the class action litigation landscape, this ruling confirms that the U.S. Supreme Court's Wal-Mart Stores, Inc. v. Dukes decision remains a cornerstone case for employers to use when attempting to fracture a putative class action. [GN] SUFFOLK UNIVERSITY: Rest of Judgment Bid in Refund Suit Denied -------------------------------------------------------------- In the case, IN RE: SUFFOLK UNIVERSITY COVID REFUND LITIGATION. THIS DOCUMENT RELATES TO: ALL ACTIONS, Civil Action No. 20-10985-WGY (D. Mass.), Judge William G. Young of the U.S. District Court for the District of Massachusetts denies the remainder of Suffolk's motion for summary judgment as to the Plaintiffs' tuition-based implied contract and unjust enrichment claims. In two putative class actions, Plaintiffs Julia Durbeck, Anna Francesca Foti, and Mary Anne Foti sued Suffolk claiming breach of an implied contract and unjust enrichment due to Suffolk's transition to a fully online program in light of the COVID-19 Pandemic. The Plaintiffs' claims can be grouped into two general categories: (1) claims based on students' payment of tuition ("tuition-based claims"); and (2) claims based on the students' payment of academic fees ("fee-based claims"). In the fall of 2020, Suffolk moved to dismiss these class actions for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6); the Court denied both motions. These cases were consolidated on Aug. 24, 2021. Currently before the Court is Suffolk's motion for summary judgment. At a hearing held on June 29, 2022, the Court granted in part Suffolk's motion for summary judgment and took the remainder of the motion under advisement. The Court granted Suffolk's motion only as to the fee-based claims (counts III and IV of Durbeck's Complaint and the fee-based portions of counts I and II of the Fotis' Complaint). It concluded that there was no genuine dispute of material fact that these fees did not mention -- in general or specific terms -- any connection to an in-person educational experience. The Court took under advisement the portion of the motion for summary judgment targeting the Plaintiffs' tuition-based claims. At the hearing, the counsel for Suffolk argued that two new pieces of the record demonstrated the need for summary judgment: (1) the Acknowledgment of Debt Terms and Conditions and the Tuition Refund Schedule, which counsel claimed prevent the existence of an implied contract; and (2) the fact that online courses and in-person courses in Suffolk's in-person undergraduate program are priced the same per credit, which the counsel purported precludes Plaintiffs from establishing damages. First, Judge Young finds that the Acknowledgement, which undergraduate students sign, states that students have an obligation to pay "tuition, room and board (if applicable), and other applicable fees by the due date" and that the student will be required to pay "all or a portion of the tuition and fees" even if they drop out or withdraw from Suffolk, in accordance with the Tuition Refund Schedule. This agreement does not defeat the Plaintiffs' tuition-based claims. The Acknowledgment does not constitute a fully integrated contract covering the same subject matter as the purported implied contract -- what students are entitled to in the event of an unforeseen campus closure. Suffolk's reliance on Zhao v. CIEE Inc. is misplaced; there, the First Circuit dealt with an agreement that explicitly contemplated "factors beyond the School's control," unlike the Acknowledgment in the case at bar. Second, it is undisputed that Suffolk charges the same price for its online courses as it does for its in-person courses in its in-person undergraduate program. ]Students who attend online courses in Suffolk's in-person undergraduate program, however, still have access to in-person facilities and experiences because, as the counsel emphasized at hearing, Suffolk does not have an online undergraduate program; therefore, presumably the cost of these in-person services is included in the course price regardless whether it is delivered online or in-person. This fact raises concerns that calculating damages for these claims would run afoul of the educational malpractice bar. Therefore, Judge Young holds that the Plaintiffs' tuition-based claims are only allowed to proceed to damages calculation insofar as they can demonstrate at trial either: (1) that Suffolk has a particular method for calculating the cost difference between its online and in-person programs and apply that method of calculation to the in-person undergraduate program; or (2) that a consistent cost differential -- either across school years or across programs -- exists between the online and in-person versions of Suffolk's other educational programs (such as the MBA) and apply that differential to the in-person undergraduate program. After all, there is only one Suffolk University in downtown Boston. In its summary judgment briefing, Suffolk also raises several other objections to the Plaintiffs' implied contract and unjust enrichment claims -- including the issue of disclaimers, the doctrine of impossibility, and the viability of unjust enrichment claims at the class action stage. These, and other objections raised by Suffolk in briefing, are unpersuasive on the summary judgment record, Judge Young finds. Accordingly, Judge Young denies the remainder of Suffolk's motion for summary judgment as to the Plaintiffs' tuition-based implied contract and unjust enrichment claims (counts I & II of Durbeck's Complaint and portions of counts I & II of the Fotis' Complaint). A full-text copy of the Court's July 13, 2022 Order is available at https://tinyurl.com/yreynrur from Leagle.com. SUTTER VALLEY: Ward's Bids to Certify Class Denied W/o Prejudice ---------------------------------------------------------------- In the case, Jennifer Ward, et al., Plaintiffs v. Sutter Valley Hospitals, Defendant, Case No. 2:19-cv-00581-KJM-AC (E.D. Cal.), Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California enters an Order: 1) denying the Defendant's motion to exclude testimony; 2) granting the Defendant's motion to strike supplemental declaration; 3) denying the Plaintiffs' motion to strike class member declarations; 4) denying the Plaintiffs' motion for class certification; and 5) denying the Plaintiffs' motion for conditional certification of collective action. I. Background Plaintiffs Jennifer Ward and Sacora Besabe bring the wage and hour action on behalf of surgical technicians against Defendant Sutter. Sutter operates 24 hospitals and healthcare facilities. It employs more than 53,000 individuals, with more than 400 being surgical technicians who work in California. Ms. Ward started working for Sutter in February 2007 as a surgical technician at Capitol Pavilion. She also fulfills the responsibilities of a surgical coordinator. Besabe started working for Sutter in February 2007 as a surgical technician at Sutter Memorial. The Plaintiffs claim they often work overtime and miss meal and rest breaks because Sutter's facilities are understaffed, and Sutter consistently has denied overtime payment requests. When employees did not clock out and accrued overtime, management would alter the punch times. The Plaintiffs also allege they did not have proper meal breaks because Sutter required them to stay on-call in case they were needed, and breaks were frequently interrupted. They allege Sutter required them to record their time as if their breaks and hours were compliant with the Labor Code. Sutter required the Plaintiffs to purchase uniform items and use personal cell phones for job duties. Sutter did not reimburse these expenses. Plaintiffs Ward and Besabe brought the putative class action in the Superior Court of Sacramento County. The Defendant removed. The Plaintiffs then filed the operative first amended complaint asserting nine claims: 1) failure to pay overtime and minimum wages in violation of the Fair Labor Standards Act, 29 U.S.C. Sections 203, 206, 207 (FLSA); 2) failure to pay overtime and minimum wage in violation of the California Labor Code, Cal. Lab. Code Sections 510, 1194, 1198; 3) failure to provide meal periods in violation of the California Labor Code, Cal. Lab. Code Sections 226.7 & 512; 4) failure to provide rest periods in violation of the California Labor Code, Cal. Lab. Code Sections 226.7 & 512; 5) failure to provide itemized statements in violation of the California Labor Code, Cal. Lab. Code Sections 226 & 1174; 6) failure to pay wages twice a month in violation of the California Labor Code, Cal. Lab. Code Section 204; 7) failure to reimburse business expenses in violation of the California Labor Code, Cal. Lab. Code Sections 2800-2802; 8) failure to pay termination pay in violation of the California Labor Code, Cal. Lab. Code Sections 201-203; and 9) unlawful competition, unlawful, and fraudulent business practices in violation of California Business and Professions Code section 17200, et seq. The Plaintiffs define their proposed class as follows: All persons who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as non-exempt Surgical Technicians, or in related positions (Class Members). The Plaintiffs propose the following 12 subclasses: a. Unpaid Overtime Subclass: All Class Members who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as non-exempt employees and were not paid overtime for hours worked beyond eight (8) hours in a single day or for hours worked beyond 40 in a single week pursuant to applicable the Labor Code and applicable IWC Wage Orders. b. Unpaid Wage Subclass: All Class Members who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as non-exempt employees and were not paid all hours worked pursuant to applicable Labor Code sections 510, 511, 1174, 1174.5, 1194 and 1198. c. Meal Break Subclass 1: All Class Members who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as non-exempt employees and have not been provided a meal period for every five (5) hours or major fraction thereof worked per day, and were not provided one (1) hour's pay for each day on which such meal period was not provided pursuant to Labor Code sections 226.7 and 512. d. Meal Break Subclass 2: All Class Members who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as non-exempt employees and who worked over ten (10) hours in a shift and did not receive a second meal period. e. Meal Break Subclass 3: All Class Members who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as non-exempt employees and who were required to sign meal waivers as a condition of employment when hired by the Defendant. f. Meal Break Subclass 4: All Class Members who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as non-exempt employees and, who signed meal waivers for the second meal and worked over twelve (12) hours in a shift. g. Rest Period Subclass: All Class Members who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as nonexempt employees and have not been provided a rest period for every three and a half (3.5) hours worked per day, and were not provided compensation of one (1) hour's pay for each day on which such rest period was not provided pursuant to Labor Code sections 226.7 and 512. h. Paystub Subclass: All Class Members who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as non-exempt employees and were not provided an itemized statement accurately showing total hours worked, the applicable hourly rates in effect during each pay period and the corresponding hours worked at each rate pursuant to Labor Code sections 226 and 1174. i. Wages Twice Monthly Subclass: All Class Members who are employed or have been employed by Defendant in the State of California who, for the four years prior to the filing of the class action to the present, have worked as non-exempt employees and were not provided all wages twice monthly pursuant to Labor Code section 204. j. Expense Reimbursement Class: All Class Members who were not reimbursed for phone, uniform and other expenses incurred in the discharge of their duties in connection with their employment with the Defendant. k. Failure to Pay Termination Pay Subclass: All Class Members who are employed or have been employed by the Defendant in the State of California who, for the four years prior to the filing of this class action to the present, have worked as non-exempt employees and were not provided all wages and applicable penalties due to them pursuant to the Labor Code and applicable IWC Wage Orders. l. California Business and Professional Labor Code Section 17200 Subclass: All Class Members who are employed or have been employed by the Defendant in the State of California who, have worked as non-exempt employees and who were subjected to the Defendant's unlawful, unfair or fraudulent business acts or practices in the form of Labor Code violations regarding overtime, meal periods, rest periods, expense reimbursement or minimum wages and/or waiting time penalties. The five, fully briefed motions currently pending before the court are supported and opposed in the following documents: a. Defendant's motion to exclude testimony: Exclude Expert Mot., ECF No. 47; Exclude Expert Mem., ECF No. 47-1. The Plaintiffs oppose. Exclude Expert Opp'n, ECF No. 51. Defendant replied. Exclude Expert Reply, ECF No. 58. b. Motion to strike supplemental declaration: Strike Suppl. Decl. Mot., ECF No. 57; Strike Suppl. Decl. Mem., ECF No. 57-1. The Plaintiff's oppose. Strike Suppl. Decl. Opp'n, ECF No. 59. The Defendant replied. Strike Suppl. Decl. Reply, ECF No. 63. c. Plaintiffs' motion to strike class member declarations: Strike Decl. Mot., ECF No. 53; Strike Decl. Mem., ECF No. 53-1. The Defendant opposes. Strike Decl. Opp'n, ECF No. 60. The Plaintiffs replied. Strike Decl. Reply, ECF No. 62. d. Plaintiffs' motion for class certification: Class Mot., ECF No. 43; Class Mem., ECF No. 43-1. The Defendant opposes; Class Opp'n, ECF No. 48. The Plaintiffs replied. Class Reply, ECF No. 50. e. Plaintiffs' motion for conditional certification of collective action: Collective Mot., ECF No. 44; Mem., ECF No. 44-1. The Defendant opposes; Collective Opp'n, ECF No. 49. The Plaintiffs did not reply, but submitted an intent to rely on the decision in Martinez v. John Muir Health, 17-5779, 2018 WL 1524063, at *1 (N.D. Cal. Mar. 28, 2018). On Sep. 9, 2021, the Court held a hearing on the motions, with Richard Quintilone, II, and Jeffrey Green appearing for the Plaintiffs and Thomas Geidt and Teresa Ghali for Defendant. It submitted the matter following hearing. II. Discussion A. Defendant's Motion to Exclude Testimony As part of the motion for class certification for their "claims for off-the-clock work, meal and rest break violations, and expense reimbursements," the Plaintiffs provide an expert declaration from Bennett Berger who identifies himself as an "expert data analyst." Sutter moves to exclude Berger's testimony, arguing it is irrelevant and inadmissible and Berger does not qualify as an expert under the familiar Daubert test. The Plaintiffs oppose, arguing Berger's "declaration is reliable and relevant to the facts of the case." Judge Mueller holds that Berger's education and experience qualify him as an expert in data collection and analysis. Berger's "assignment in the matter is twofold: (1) demonstrate how the data that the Plaintiffs and the Class seek could be used to calculate damage under the Plaintiffs' liability theories; and (2) provide a road map for calculating damages at trial." In his deposition testimony, Berger confirmed the pay and time data he received from defendant was "not sufficient to calculate damages rather, any potential damages model would hinge on a hypothetical survey or on other assumptions not yet provided by the Plaintiffs' counsel." At the time of the Defendants' filing their motion, Berger had not provided any "road map for calculating damages at trial." "Nor had he submitted an expert report memorializing his opinions." Despite these omissions, the Defendant does not claim to have suffered any prejudice. Judge Mueller denies the motion to exclude Berger's testimony entirely; however, the deficiencies the defense points to will impact the weight the Court places on his testimony at the certification stage. B. Defendant's Motion to Strike Supplemental Declaration The Plaintiffs attached a supplemental declaration of Berger to their reply in support of Class Certification. The Defendant seeks to strike the declaration in its entirety and seeks leave to file a motion for sanctions, arguing the Plaintiffs are flouting the court's deadlines. It argues the supplemental declaration amounts to the Plaintiffs' granting themselves an unilateral "extension of time to seek certification and an attempt to patch up some of the gaping holes in their opening motion." The Plaintiffs oppose the motion, arguing there is no prejudice to the Defendant. Their counsel notified the Defendant's counsel that Berger created a damages model for Ward and Besabe on June 28, 2021, and say they provided an opportunity for the Defendant's counsel "to examine and continue the Opposition date to incorporate the findings into their Opposition papers." Judge Mueller agrees with the Defendant's characterization; the declaration is not supplemental and introduces new evidence in providing for the first time Berger's analysis of the "Plaintiffs' time and pay records." Accordingly, she strikes the supplemental declaration. C. Plaintiffs' Motion to Exclude Declarations The Plaintiffs move to strike the declarations the Defendant provided in support of its opposition to class and collective certification. They claim the Defendant acquired the declarations through coercive and deceptive tactics. The Defendant counters, arguing "the record before the Court completely refutes the Plaintiffs' allegations of coercion." Judge Mueller holds that the testimony the Plaintiffs point to here as the basis for striking the decelerations amount to minor inconsistencies or elaborations that do not form a basis for exclusion as sham affidavits, with one minor exception. The exception, which the Defendants conceded at hearing, is that the court should strike a sentence of Nicole Bender's declaration stating "she has read and been offered a copy of the document entitled, "Who We Are and Purpose of the Interview." As Bender testified in her deposition that she did not read her declaration in its entirety, Judge Mueller therefore strikes this sentence but otherwise denies this motion. D. Class Certification The Plaintiffs seek class certification for a class of "those employed during the proposed class period" who can be identified with "Sutter's records, through job titles, and dates of employment." As noted, the Plaintiffs also propose 12 subclasses. They seek certification with respect to their claims for failure to play overtime, failure to provide meal and rest breaks, failure to provide reimbursement for business expenses, failure to provide accurate wage statements, and failure to timely pay wages at termination. The Defendant opposes, arguing no claim is suitable for class certification. To be certified, a putative class must meet the threshold requirements of Federal Rule of Civil Procedure 23(a) and fall into one of the class categories of Rule 23(b). The Plaintiffs seek certification of a class in which common questions of law and fact predominate and a class action is the superior means of litigation. Rule 23(a) imposes four requirements on every class. First, the class must be "so numerous that joinder of all members is impracticable." Second, questions of law or fact must be common to the class. Third, the named representatives' claims or defenses must be typical of those of the class. Fourth, the representatives must "fairly and adequately protect the interests of the class." The putative class must also meet the two requirements of Rule 23(b)(3): 1) "the questions of law or fact common to class members predominate over any questions affecting only individual members," and 2) "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The test of Rule 23(b)(3) is "far more demanding," than that of Rule 23(a). Judge Mueller finds that (i) although not raised as an issue by the Defendant, the proposed class and subclass definitions pose an ascertainability issue, so the Plaintiffs may wish to consider defining any potential class by adding an end date; (ii) there is no dispute that numerosity is satisfied, given Sutter's employing "approximately 400 putative Surgical technician Class Members in California"; (iii) the record contains no common evidence demonstrating that all the putative class members' claims can be resolved efficiently at the same time; (iv) she is not prepared to find claims and defenses of the proposed class are typical given the Plaintiffs' inability to establish commonality at this stage; (v) the proposed representation is adequate; and (vi) she cannot determine if the predominance and superiority are met given that the Plaintiffs have not demonstrated that wage violations are common across the potential class and subclasses. For these reasons, Judge Mueller denies class certification. E. FLSA Collective The Plaintiffs move to preliminarily certify the following FLSA collective: All persons who are employed or have been employed by Sutter Valley Hospitals in the State of California who, for the four years prior to the filing of this class action on February 13, 2019 to the present, have worked as nonexempt Surgical Technicians, or in related positions. The Defendant argues "the Court should proceed directly to the second stage analysis, as extensive discovery on class and collective issues is now complete." Although the Plaintiffs did not reply to the Defendant's argument, the Defendant has not shown that the Court retains this discretion in light of Campbell and later Ninth Circuit decisions. Judge Mueller thus proceeds with first step. The Plaintiffs contend the members of their proposed FLSA collective are similarly situated because the "Defendant maintained similar requirements at all its hospitals and surgery centers in the state of California." Citing to declarations, they claim, "the experiences of the Plaintiffs and opt-in Plaintiffs substantially mirror each other." Additionally, the Plaintiffs assert their expert, Mr. Berger, "can cross-reference timecard records of Class Member meal periods with payroll data and any activity data on Class Member cell phones to show whether Class Members worked off the clock." The Defendant argues proposed collective members "are not similarly situated, and their claims could not be manageably tried, as the Plaintiffs have not pointed to a single companywide policy or practice that supports their off-the-clock claims for unpaid minimum wages and overtime." Additionally, the Defendant claims the declarations are insufficient to establish a FLSA violation. Judge Mueller finds that the proposed Collective members appear to have "held similar jobs with similar functions," which may indicate they are similarly situated. However, the proposed Collective certification suffers from the same defect as the Plaintiff's proposed class certification. The declaration and deposition evidence the Plaintiffs rely on is insufficient to show the proposed Collective members were subjected to uniform, unlawful wage policies. Judge Mueller denies this motion, without prejudice. IV. Conclusion Judge Mueller denies the Defendant's motion to exclude testimony; grants the Defendant's motion to strike supplemental reply; denies the Plaintiffs' motion to strike class member declarations; denies the Plaintiffs' motion for class certification and their motion for conditional certification of collective action, each without prejudice to renewal addressing the issues identified by the Order. A full-text copy of the Court's July 15, 2022 Order is available at https://tinyurl.com/r26ffymf from Leagle.com. TD BANK: Amended Scheduling Order Entered in Jimenez Class Suit --------------------------------------------------------------- In the class action lawsuit captioned as JUDITH J. JIMENEZ, on behalf of herself and all others similarly situated, v. TD BANK, N.A., Case No. 1:20-cv-07699-NLH-EAP (D.N.J.), the Hon. Judge Elizabeth A. Pascal entered an amended scheduling order as follows: -- Pretrial factual discovery is February 3, 2023 extended to: -- All affirmative expert reports February 17, 2023 on class certification and merits-based expert reports and disclosures pursuant to FED. R. CIV. P. 26(a)(2) on behalf of Plaintiff shall be served upon counsel for Defendant no later than: -- All rebuttal expert reports on March 17, 2023 class certification and merits-based expert reports and disclosures pursuant to FED. R. CIV. P. 26(a)(2) on behalf of Defendant shall be served upon counsel for Plaintiff no later than: -- Depositions of proposed class April 17, 2023 certification and merits based expert witnesses be concluded by: -- Dispositive motions shall be May 26, 2023 filed with the Clerk of the Court no later than: -- Class certification motions May 26, 2023. shall be filed with the Clerk of the Court no later than: TD Bank, N.A. is an American national bank and the United States subsidiary of the multinational TD Bank Group. A copy of the Court's order dated July 8, 2022 is available from PacerMonitor.com at https://bit.ly/3couv1t at no extra charge.[CC] TJ INSPECTION: Bid for Collective Action Notice Filed ----------------------------------------------------- In the class action lawsuit captioned as KOREY FARMER, Individually and for Others Similarly Situated, v. TJ INSPECTION, INC., Case No. 5:22-cv-00066-DAE (W.D. Tex.), the Parties file an agreed motion for collective action notice under the Fair Labor Standards Act. The Parties agree to notice of the lawsuit to be sent to the following collective pursuant to 29 U.S.C. section 216(b): "Current and former inspectors employed by TJ Inspection, Inc., who did not have a guarantee of at least four days of their day rate during at least one week in the three years prior to the Court's Order granting notice." TJ Inspection is an oil & energy company offering inspection services. A copy of the Parties' motion dated July 5, 2022 is available from PacerMonitor.com at https://bit.ly/3yMl83k at no extra charge.[CC] The Plaintiff is represented by: Richard J. (Rex) Burch, Esq. David I. Moulton, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com dmoulton@brucknerburch.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com The Defendant is represented by: Mark D. Temple, Esq. Peter J. Stuhldreher, Esq. Paul M. Knettel, Esq. BAKER & HOSTETLER LLP 811 Main Street, Suite 1100 Houston, TX 77002 Telephone: (713) 751-1600 Facsimile: (713) 751-1717 E-mail: mtemple@bakerlaw.com pstuhldreher@bakerlaw.com pknettel@bakerlaw.com TOMTOM NORTH: Court Dismisses Amended McVetty Suit With Prejudice ----------------------------------------------------------------- In the case, FRANCIS McVETTY, individually and on behalf of all others similarly situated, Plaintiff v. TOMTOM NORTH AMERICA, INC., Defendant, Case No. 19 Civ. 4908 (NSR) (S.D.N.Y.), Judge Nelson S. Roman of the U.S. District Court for the Southern District of New York grants the Defendant's motion to dismiss Plaintiff's Amended Complaint. I. Overview The putative class action alleges that Defendant TomTom misled consumers to believe it was promising them that one of its navigation devices (the "Product") would have "Lifetime Maps" to avoid having to replace their device every few years. Plaintiff McVetty, individually and on behalf of others similarly situated, brings the action against the Defendant asserting claims for violations of New York's General Business Law Sections 349 and 350, breach of express warranty, breach of implied warranty of merchantability, unjust enrichment, and trespass to chattel. Presently pending before the Court is the Defendant's motion to dismiss the Plaintiff's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Judge Roman grants the Defendant's motion to dismiss. II. Background The Defendant, a California corporation with a principal place of business in New Hampshire, manufactures, distributes, markets, labels, and sells portable navigation devices to consumers through third-party retailers, including brick-and-mortar stores and online, and directly from its website (the "Products"). "All of the Products are marketed and advertised as coming with Lifetime Maps or Lifetime Maps and Traffic, point-of-sale marketing, retailers' catalogues, websites and television sales, uniformly and pervasively promotes the Lifetime Maps and/or Traffic Updates." "The product boxes have continuously highlighted the addition of Lifetime Traffic and/or Maps." Because of rapidly changing technology, consumers are willing to pay a premium for a device that comes with updates, so that they are not continually needing to buy new devices. Accordingly, the Defendant "capitalizes on this consumer sentiment by essentially saying, 'Buy our higher-priced devices now and you won't have to get another one for a long time because we will maintain the level of functionality and added services.'" The warranty terms for Lifetime Maps on the Defendant's website provide the following: "When you purchase a navigation device or smartphone app which includes Lifetime Maps, you can download 4 or more full updates of your map every year for the lifetime of your product. Lifetime Maps are available without additional charge and for as long as the product is supported." The Plaintiff alleges that these terms were not available to customers prior to the time of sale. He further alleges that in the warranty terms, Defendant "self-servingly" defined "lifetime" as "the useful life of the device" or "the period of time that the Defendant continues to support a device with software updates, services, content or accessories." In January 2018, the Defendant announced that, due to technological limitations, certain devices -- not including those with the Lifetime Maps service -- will not be able to renew maps or services or receive software updates and, though the device will continue to function, the map will become out-of-date such that navigation will be less accurate, and, under a heading of "Replacement Offer" consumers may consider purchasing a replacement device using a "rebate" (the "January 2018 Announcement"). Consequently, the Plaintiff alleges that the Defendant changed its services from providing "Lifetime Maps" to offering "individual map zones," for which users must switch from one map zone to another by first downloading a new file onto their navigational device. When users download a new map zone onto their navigational device, the map zone replaces the users' current map on your navigational device. The Plaintiff claims that such changes make it impossible "to have a fully functioning map service that covers anywhere the user might drive as advertised by the Defendant through the term 'lifetime maps' since downloading a new map zone deletes the user's current map zone." The Plaintiff further alleges that an affected device's capacity to continue to receive updates is "entirely dependent upon the prior updates distributed by the Defendant to consumers," and that "by diminishing and/or eliminating the utility of affected devices, the Defendant has been able to reverse and/or stem its decline in direct-to-consumer sales." He also alleges that the "Defendant's reliance on its sole discretion as to when it decides to cease providing updates disregards that consumers were buying hardware (the physical devices) and software (lifetime maps), such that its revocation of part of the transaction constitutes a taking under false pretenses and unconscionable commercial conduct." The Plaintiff, a citizen of Westchester County, New York, alleges that he purchased one of the Defendant's Products in 2012 (the "Device") because he "desired to purchase a navigation device with lifetime maps to avoid having to place his device every few years." He alleges that he paid a premium for the Device because he "relied on the Defendant's promise of 'Lifetime Maps' when he chose the Device over other models." He alleges that the proposed classes for the putative class action include all consumers in New York who purchased any of Defendant's navigation devices sold before 2013 "which were advertised as being sold with Lifetime Maps, but were rendered less valuable, following the Defendant's decision to terminate Lifetime Maps for users of those devices." On May 25, 2019, the Plaintiff filed the original operative class action complaint. On Oct. 18, 2019, the Defendant filed a letter seeking leave to file its first motion to dismiss, which the Court subsequently granted and for which it set a briefing schedule. After the parties filed their briefing on May 19, 2020, the Court granted the Defendant's first motion to dismiss the Plaintiff's Complaint for failure to state a claim on March 13, 2021. It further granted the Plaintiff 30 days to file an amended complaint. On April 12, 2021, the Plaintiff filed his Amended Complaint, asserting claims for (1) violation of New York General Business Law Sections 349 and 350; (2) breach of express warranty; (3) breach of implied warranty of merchantability; (4) unjust enrichment; and (5) trespass to chattel. As relief, he seeks both monetary damages and injunctive relief that would require Defendant to correct the Product's alleged misrepresentation. On June 25, 2021, the Defendant again sought leave to file a motion to dismiss, which the Court subsequently granted and for which it issued a briefing schedule. On Sept. 16, 2021, the parties filed their respective briefing on the instant motion: The Defendant's notice of motion, memorandum in support, reply; and the Plaintiff his response in opposition. III. Discussion The Plaintiff asserts claims against the Defendant for (1) violations of New York General Business Law ("GBL") Sections 349 and 350, (2) breach of express warranty, (3) breach of implied warranty of merchantability, (4) unjust enrichment, and (5) trespass to chattel. The Defendant seeks to dismiss all claims for failure to state a claim. As a preliminary matter, Judge Roman notes that while the Defendant argued in its briefing that the Plaintiff fails to sufficiently allege each of his asserted six causes of action, the Plaintiff only addressed the arguments concerning his claims under GBL Sections 349 and 350 and for trespass to chattel. As such, he construes the Plaintiff's failure to address such arguments as him abandoning his claims for breach of express warranty, breach of implied warranty of merchantability, and unjust enrichment, and therefore, the Court dismisses such claims. Accordingly, Judge Roman only addresses the parties' arguments related to the Plaintiff's claims under GBL Sections 349 and 350 and for trespass to chattel. A. New York General Business Law Sections 349 and 350 The Defendant argues that the Plaintiff fails to assert a plausible claim under GBL Sections 349 and 350 for three reasons. First, it argues that the Plaintiff fails to remedy the specific and critical defect that the Court indicated in its previous decision dismissing his original Complaint -- namely, that the Plaintiff still fails to provide the "entire context" of the Product's label -- that is, the entirety of the Product's packaging, or at the very least, the entirety of the packaging of any of its Products. Second, it argues that the Plaintiff's Amended Complaint, like his original Complaint, still fails to sufficiently allege that any reasonable consumer would be deceived by a claim of "Lifetime Maps" because his allegations make clear that his Device continues to have map updates available. And third, the Defendant argues that the Plaintiff fails to sufficiently plead a cognizable injury under GBL Sections 349 and 350 because he still has access to "Lifetime Maps" in his Device. After due consideration, Judge Roman agrees. While a review of the Amended Complaint shows that the Plaintiff remedied the first deficiency the Court found in its previous opinion, the Plaintiff still fails to sufficiently allege a cognizable injury and that a reasonable consumer would be deceived by the use of the word "Lifetime" on the Product's packaging. With respect to whether a reasonable consumer would be deceived, Judge Roman agrees with the Defendant that the Plaintiff's allegations still fail to indicate how that a reasonable consumer would be misled by the use of the word "Lifetime." The Plaintiff's allegations that the use of the word "Lifetime" in the Product's label is misleading are conclusory because he fails to provide the "entire context" necessary to determine whether a reasonable consumer would be misled by such statement. And, considering that the Plaintiff alleges that the use of the word "Lifetime" in the label for the Defendant's Products is misleading because the "Defendant terminated lifetime map updates in January 2018," the Amended Complaint points to nothing that could discredit the Defendant's use of the word "Lifetime," particularly since the Plaintiff himself alleges that his Device continues to have map updates available. If anything, through his own allegations, the Plaintiff instead admits that his Device continues to have map updates available—which directly contradicts his own allegations that the Defendant misled him by using the word "Lifetime" in its Products after it terminated the lifetime map updates in January 2018. And on that same basis, Judge Roman is also of the view that the Amended Complaint also fails to plausibly allege that the Plaintiff suffered an injury. Accordingly, Judge Roman dismisses the Plaintiff's claims under GBL Sections 349 and 350. B. Trespass to Chattel The Defendant next argues that the Plaintiff fails to sufficiently state a claim for trespass to chattel electronically through the Internet because the Amended Complaint is devoid of any allegation that the alleged software updates were downloaded to his Device without his consent and authorization. It argues that, at best, the Plaintiff's allegations amounts to harmless intermeddling that does not give rise to a cognizable injury. After due consideration, Judge Roman agrees. He finds that even when construing the Amended Complaint in his favor, the Plaintiff fails to sufficiently allege that Defendant "intentionally, and without justification or consent, interfered with" his Device because the Plaintiff, through his active subscription, consented to receive the same map updates of which he complains. Further, Judge Roman agrees with the Defendant that the Plaintiff fails to sufficiently allege a cognizable injury resulting from the alleged trespass. Specifically, the Plaintiff fails to allege when the Defendant allegedly transmitted the "inefficient software packages" to his Device, as well as how exactly the alleged inefficiencies of these software packages impaired the Device's condition, quality, and value. Therefore, Judge Roman concludes that the Plaintiff fails to plausibly state a claim for trespass to chattel claim, and dismisses such claim accordingly. C. Leave to Amend Judge Roman holds that the Plaintiff has already amended once, after having the benefit of a previous decision by the Court on the sufficiency of his claims and a pre-motion letter from Defendant stating the grounds on which it would move to dismiss his Amended Complaint. Further, while the Plaintiff requested leave to file a Second Amended Complaint within the last sentence of his response in opposition, he has not otherwise suggested that he is in possession of facts that would cure the deficiencies that the Defendant highlighted in the instant motion and that the Court highlighted either in its previous opinion or the instant one. Therefore, Judge Roman dismisses the Plaintiff's Amended Complaint with prejudice. IV. Conclusion For the foregoing reasons, Judge Roman grants the Defendant's motion to dismiss, and dismisses the Plaintiff's Amended Complaint with prejudice. The Clerk of Court is directed to terminate the motion at ECF No. 30 and the action, to enter judgment accordingly, and to close the case. A full-text copy of the Court's July 15, 2022 Opinion & Order is available at https://tinyurl.com/2wwppa3x from Leagle.com. UNIVERSITY OF MARYLAND: Bid to Dismiss Moler ERISA Suit Denied -------------------------------------------------------------- In the case, MARTIN P. MOLER, ET AL., Plaintiffs v. UNIVERSITY OF MARYLAND MEDICAL SYSTEM, ET AL., Defendants, Civil No. 1:21-cv-01824-JRR (D. Md.), Judge Julie R. Rubin of the U.S. District Court for the District of Maryland denies Defendants University of Maryland Medical System and the Employee Benefits Committee's Motion to Dismiss Plaintiffs Martin P. Moler, Kathleen D'Ascenzo and John T. Czahor's Complaint. I. Background The matter comes before the court on Defendants University of Maryland Medical System ("UMMS") and the Employee Benefits Committee's ("EBC") Motion to Dismiss. The Plaintiffs bring a class action pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Sections 1109, 1132, for breach of fiduciary duties against Defendants UMMS and EBC on behalf of the UMMS 401(a) Defined Contribution Plan and the UMMS Voluntary 403(b) Plan, themselves as individuals as well as all others with whom they are similarly situated. The Plans are defined contribution plans, which means that participants' retirement benefits are limited to the value of their individual investment accounts as determined by market performance. Based on the Plans' assets, they are classified as "Large" plans in the defined contribution plan marketplace, i.e., valued in the range of $200 Million to $1 Billion. The asset strength of the Plans affords considerable bargaining power regarding the transaction and management fees and expenses charged against the Plans' participants. Plans participants shoulder the risks and expenses associated with their individual investment accounts; the Plans fiduciaries to not bear or absorb investment related fees and expenses. UMMS serves as the sponsor, administrator, and as a fiduciary of the Plans, and delegates certain administrative and investment duties to the EBC. The EBC's members are appointed by UMMS to serve on the committee as fiduciaries to the Plans. Defendants select investment options from which participants choose for their individual accounts. Participants may also select funds made available through GoalMaker, Prudential Insurance Company's proprietary asset allocation service. Participants' funds are invested using GoalMaker unless participants direct their contributions elsewhere. The Plaintiffs bring two claims for relief. The first charges Defendants with breach of their fiduciary duties of "prudence." They allege Defendants breached their fiduciary duties of prudence by 1) failure to investigate and select investment options based on investment merit considerations of cost and performance; 2) imprudent selection of underperforming investments; 3) failure to investigate and select lower-cost mutual fund share classes; 4) failure to monitor the Prudential Principal Preservation Separate Account ("PPSA"); 5) offering only one stable value fund (PPSA) despite a history of under-performance and excessive cost, and allowing GoalMaker to place substantial percentages of holdings into this fund; and 6) failure to monitor or control the Plans' recordkeeping and other administrative expenses. Plaintiffs' second claim charges that UMMS failed to "monitor" the EBC to ensure its members fulfilled their fiduciary duties to the Plans. II. Analysis A. Share Classes The Plaintiffs allege that lower cost mutual fund share classes were available for the class period and were identical to the funds chosen, but for their cost. They also allege that the flawed fiduciary process employed by the Defendants resulted in the selection of high-cost funds through GoalMaker, and that those funds performed poorly. The Defendants assert that the cost difference that the Plaintiffs complain of is reasonably explained by revenue sharing where "Defendants actively managed funds with revenue sharing that generated fees offsetting recordkeeping and administrative costs." They aver further that the practice of revenue sharing allowed the Defendants to defray recordkeeping fees and plan administrative costs. Judge Robin opines that while the Defendants provide an explanation for the choices made, the Plaintiffs are not required to rebut or overcome that explanation at the pleading stage. The Plaintiffs have alleged facts to support an inference of imprudence, as they have alleged well-pled facts regarding performance of the chosen funds in comparison to the less-expensive funds, and superior performance of the less expensive choice. These facts, assumed true, support the inference that Defendants breached their fiduciary duty in selecting the higher-cost funds. The Motion will be denied on these grounds. B. Actively Managed Funds The Plaintiffs allege that the Plans' funds underperformed "not only cheaper comparator funds but also their benchmark indices over a 10-year period and 3 other funds underperformed for at least 5 years." The Defendants protest that the Plaintiffs' allegations impermissibly rely on hindsight, and urge that the proper inquiry is the decision-making process, rather than the result. They claim the Plaintiffs cannot satisfy the pleading standards "by using cherry-picked comparators selected with the benefit of hindsight, as virtually any investment can be shown to 'underperform' at some point in time." The investments' long-term underperformance is categorically different than showing what a fiduciary should have done in hindsight. Judge Robin opines that the Plaintiffs' allegations go beyond reliance upon other investments that outperformed the selected funds. They point to similar funds with lower expense ratios than the Plans funds, comparing their performances up to a 10-year period. Assumed true, these facts support the inference that the Defendants failed to monitor and remove these historically underperforming funds. The Motion will be denied on these grounds. C. Stable Value Funds The Plaintiffs charge that the Defendants' inclusion of Prudential's PPSA was imprudent. In particular, the Plaintiffs take issue with the large fee of the fund in comparison to its minimal returns. The Defendants argue that the comparisons provided by the Plaintiffs are inapplicable and irrelevant because they compare different investment periods. They further argue that the proposed comparators are not meaningful benchmarks because three of the comparators do not guarantee principal or interest credits as the Plans' fund does; this, the Defendants argue, constitutes a material distinction. Judge Robin holds that determination of the adequacy or sufficiency of comparable benchmarks is a fact-intensive inquiry not properly resolved on a motion to dismiss, and one that may require expert opinion. The Plaintiffs have properly alleged a comparable benchmark upon which to analyze the performance of the stable value fund for purposes of the complaint. The complaint alleges facts to support the inference that the PPSA underperformed during the relevant period and that a prudent investor would have removed the fund from the Plan. The Motion will be denied on these grounds. D. Recordkeeping The Plaintiffs claim that the Defendants breached their fiduciary duty of prudence by failing to monitor, manage and control the Plans' recordkeeping and administrative costs and expenses and by failing to remain informed about fee trends in the marketplace. Plaintiffs further claim that Defendants failed to solicit bids, negotiate fees, cap revenue sharing payments, and "thus, caused the Plans' participants to pay excessive recordkeeping fees." The Defendants counter that the Plaintiffs fail to allege facts sufficient to show that the fees were excessive for the services rendered. But the Plaintiffs need not resolve this challenge to survive the Motion. Judge Robin finds that the Plaintiffs have stated sufficient allegations that Defendants failed to monitor fees, and that the fees were excessive and unreasonable, amounting to a breach of fiduciary duty. The Motion will be denied on these grounds. E. Monitoring EBC The Plaintiffs claim UMMS breached its fiduciary duty by failing to monitor the EBC to ensure its members fulfilled their respective duties to the Plans and the Plaintiffs. The Defendants argue that the Plaintiffs did not sufficiently allege the EBC breached its fiduciary duties, as required to state a claim for failing to monitor. As she set forth, Judge Robin opines that the Plaintiffs' complaint alleges sufficient breaches of fiduciary duty by UMMS to support underlying imprudence as required for a failure to monitor claim. The Motion will be denied on these grounds. III. Conclusion For these reasons, Judge Robin denies Defendant UMMS and the EBC's Motion to Dismiss Plaintiffs' Complaint. The Court will issue an accompanying order in accordance with its Memorandum Opinion. A full-text copy of the Court's July 13, 2022 Memorandum Opinion is available at https://tinyurl.com/5f2wu97p from Leagle.com. UNIVERSITY OF MARYLAND: Court Strikes Exhibits in Moler Suit ------------------------------------------------------------ In the case, MARTIN P. MOLER, ET AL., Plaintiffs v. UNIVERSITY OF MARYLAND MEDICAL SYSTEM, ET AL., Defendants, Civil No. 1:21-cv-01824-JRR (D. Md.), Judge Julie R. Rubin of the U.S. District Court for the District of Maryland grants the Plaintiffs' Motion to Strike Exhibits D, G, and H to the Defendants' Motion to Dismiss. The Plaintiffs filed a Class Action Complaint pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA") for breach of fiduciary duties against Defendants University of Maryland Medical System ("UMMS") and the Employee Benefits Committee ("EBC") on behalf of the UMMS 401(a) Defined Contribution Plan and the UMMS Voluntary 403(b) Plan (collectively the "Plans"). The complaint generally alleges the following: (1) the Plans are defined contribution plans, where benefits are limited to the value of the individual investment accounts as determined by market performance; (2) UMMS serves as the sponsor, administrator, and a fiduciary of the Plans, delegating certain administrative and investment duties to the EBC; (3) the Defendants select investment options from which participants choose for inclusion in their individual accounts; (4) Plan participants may also select funds made available through GoalMaker, Prudential Insurance Co.'s proprietary asset allocation service; and (5) participant funds are invested using GoalMaker unless participants direct their contributions elsewhere. The Plaintiffs complain that the Defendants breached their fiduciary duties by: (1) failing to investigate and select prudent share classes of funds in the Plans; (2) failing to investigate and select lower cost alternative funds; (3) imprudently choosing historically under-performing investments; (4) offering only one stable value fund which was under-performing and expensive, and allowing GoalMaker to place substantial percentages of holdings into this fund; (5) failing to monitor or control the Plans' recordkeeping and other administrative expenses. The Plaintiffs further allege that UMMS failed to monitor other fiduciaries, including the EBC. In response to the complaint, the Defendants filed a Rule 12(b)(6) Motion to Dismiss attaching Exhibits A through H, collectively consuming 874 pages. As set forth in the Declaration of Howard Shapiro (co-counsel for the Defendants), the exhibits to the Motion to Dismiss are as follows: a. Exhibit A: the Plan documents, including the UMMS 401(a) Defined Contribution Plan, the UMMS Voluntary 403(b) Plan, and the Summary Plan Description of UMMS Voluntary 403(b) Plan; b. Exhibit B: the UMMS Defined Contribution Plan Discretionary 3(38) Status Client Agreement with Asset Strategy Consultants; c. Exhibit C: the Retirement Enrollment Guides sent to the Plans' participants in 2016; d. Exhibit D: the Putnam Stable Value Fund Offering Statement, dated May 15, 2020; e. Exhibit E: excerpts of IRS Form 5500s for the UMMS 401(a) Defined Contribution Plan for the years 2015 to 2019; f. Exhibit F: the October 2020 UMMS Voluntary 403(b) Plan 404(a)(5) Fee Disclosure; g. Exhibit G: the Fund Change Notices with Fund Fact Sheets; and h. Exhibit H: fund fact sheets made available to Plan participants. The Plaintiffs oppose the Motion to Dismiss in substance and request that the court strike Exhibits D, G and H. In ruling on a motion to dismiss, courts are generally limited to "considering the sufficiency of the allegations set forth in the complaint and the 'documents attached or incorporated into the complaint.'" A court may consider extrinsic documents attached to a motion to dismiss where the document is "integral to and explicitly relied on in the complaint," and when "the plaintiffs do not challenge the document's authenticity." A document is "integral" to a complaint where "its very existence, and not the mere information it contains, gives rise to the legal rights asserted" or where the legal rights at issue in the complaint rely "'heavily upon its terms and effect.'" Although courts may consider relevant, un-pled facts subject to judicial notice, given the stage of the case, judicially noticed facts must be construed in a light favorable to the plaintiff. Judge Rubin agrees that the Challenged Exhibits are neither integral to the complaint nor expressly relied upon therein. Rather, the Challenged Exhibits appear to the Court offered to cast the substantive merits of the action in a defense-oriented light rather than to challenge the sufficiency of the pleading. While this is certainly understandable insofar as it is the long term objective of the Defendants to prevail, at this stage, consideration of the Challenged Exhibits converts the Motion to one for summary judgment and imposes upon the Plaintiff the unfair and rather impossible task of proving its case in advance of fulsome discovery. For the reasons she set forth, by accompanying order, Judge Rubin grants the Motion to Strike, orders that Exhibits D, G, and H to the Motion to Dismiss be stricken, and does not consider the Challenged Exhibits in adjudicating the Motion to Dismiss. A full-text copy of the Court's July 13, 2022 Memorandum Opinion is available at https://tinyurl.com/2d5smkzm from Leagle.com. VERIZON WIRELESS: Corsi et al. Sue Over Undisclosed Charges ----------------------------------------------------------- Anne Bucher of Top Class Actions reports that a new class action lawsuit claims Verizon Wireless has engaged in a "bait-and-switch scheme" by advertising flat rate fees but charging mobile customers a Verizon administrative charge on top of the promised price. A group of five plaintiffs lodged the Verizon class action lawsuit against Cellco Partnership d/b/a Verizon Wireless and Verizon Communications Inc., claiming they charged the Verizon administrative charge without customers' consent. The Verizon class action lawsuit alleges Verizon began charging the administrative charge on its postpaid wireless customers' bills in 2005. The Verizon administration charge allegedly started at a rate of 40 cents per month and increased on a regular basis. Currently, the plaintiffs say the Verizon administrative charge is $3.30 per line per month, which is more than eight times the original amount. "Verizon has used the Administrative Charge as a revenue lever to covertly jack up its monthly service prices and to squeeze its existing subscribers for more cash whenever Verizon desires," the Verizon class action lawsuit alleges. Verizon has allegedly improperly reaped billions of dollars from the Verizon administrative charge scheme. Customers are not informed of Verizon administrative charge until they receive their first bill, plaintiffs allege. Customers are not made aware of the Verizon administrative charge until they receive their first monthly billing statement, "which they begin receiving only after they have signed up for wireless service and are committed to their purchase and cannot cancel without penalty," the Verizon class action lawsuit explains. The plaintiffs allege Verizon provides conflicting information about the reasons behind the charge. On the monthly bills, Verizon allegedly falsely states that the administrative charge is imposed to "cover the costs that are billed to us by federal, state, or local governments." The Verizon website allegedly falsely states that the Verizon administrative charge is tied to the company's operating costs. The plaintiffs are asking the court to compel Verizon to notify potential customers about the Verizon administrative charge in its advertising and to reimburse Class Members for undisclosed extra-contractual fees they paid. The report notes this is not the first time Verizon has faced a class action lawsuit over allegedly undisclosed fees. Verizon has also recently agreed to settle a class action lawsuit alleging it violated the Telephone Consumer Protection Act with pre-recorded debt collection calls. The plaintiffs are represented by Stephen P. DeNittis, Joseph A. Osefchen, and Shane T. Prince of DeNittis Osefchen Prince PC, and by Daniel M. Hattis and Paul Karl Lukacs of Hattis & Lucacs. The Verizon Administrative Charge Class Action Lawsuit is styled, Cintia Corsi, et al. v. Cellco Partnership d/b/a Verizon Wireless, et al., Case No. 2:22-cv-04621, in the U.S. District Court for the District of New Jersey.[GN] WALMART STORES: Lisowski Suit Dismissal With Prejudice Affirmed --------------------------------------------------------------- In the case, CHRISTOPHER LISOWSKI, on behalf of himself and all others similarly situated, Appellant v. WALMART STORES, INC., Case No. 21-2501 (3d Cir.), the U.S. Court of Appeals for the Third Circuit affirms the District Court's denial of Lisowski's motion to remand and dismissal of the complaint with prejudice. I. Introduction Mr. Lisowski purchased two 6-packs of 5-Hour Energy on separate occasions. Walmart charged him a 7% state and local sales tax of $1.88. Aggrieved by the monetary loss of approximately two dollars, Lisowski filed a putative class action in state court, alleging that 5-Hour Energy drinks are "dietary supplements" exempt from sales tax under Pennsylvania law. His claims for conversion, constructive trust, and deceptive trade practices all stem from his belief that Walmart knowingly took this charge to profit from the commission it receives for collecting sales tax. Walmart removed the suit under the Class Action Fairness Act because the alleged damages totaled more than $5 million. Mr. Lisowski filed a motion to remand, arguing that the Tax Injunction Act ("TIA") and principles of comity required remand. The District Court determined that the TIA did not preclude jurisdiction because Lisowski, "if successful, would receive damages from a private-party defendant." It then dismissed the complaint for failure to state a claim under Rule 12(b)(6). Lisowski appeals from the denial of remand and the dismissal of the complaint. II. Discussion A. The TIA states that "district courts will not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." The prototypical TIA case concerns charges that must be characterized as either a fee or a tax. Alternatively, they involve charges that are clearly taxes whose validity is being challenged. But in the case, the issue is whether the $1.88 charged by Walmart is a tax at all. Our jurisdiction turns on that issue. If 5-Hour Energy is taxable, then Walmart's charge is unambiguously a tax, and we lack jurisdiction to enjoin its collection. If it is not taxable, then Walmart's charge is merely a fraudulent charge that it labeled as a tax, and the Third Circuit does have jurisdiction. Lisowski argues that reaching the merits of whether an item is taxable or not falls under the scope of the Tax Injunction Act or, alternatively, is barred by the principles of comity due to its potential to interfere with the state tax system. But Lisowski's arguments cut against his own complaint. The complaint alleges that the $1.88 is merely an improper charge that has been fraudulently labeled as a tax. Nonetheless, he claims that his suit must be remanded under the TIA because enjoining the collection of this charge would prevent money from reaching Pennsylvania's coffers. But assuming Lisowski's allegations are true, Pennsylvania has no interest in collecting that money at all. And if Pennsylvania has determined that 5-Hour Energy is not taxable, Walmart does not have the power to impose a tax, even if it labels it on its receipts. Undeterred by the limitations of his own complaint, Lisowski argues that if Walmart denies the allegations against it, then the court will be required to "wade into the tax regulation waters," but that if Walmart admits it violated Pennsylvania tax law, then an injunction would be appropriate. His argument requires that Walmart's charge is a tax when convenient, and not a tax when inconvenient. The Third Circuit rejects Lisowski's "heads I win-tails you lose" argument. Walmart need not admit it violated Pennsylvania tax law, nor was the District Court required to determine if 5-Hour Energy was taxable. Instead, the District Court merely held that the facts alleged in the notice of removal did not implicate the Tax Injunction Act. Lisowski's claims rest solely on Walmart's allegedly improper collection of a charge that it was not authorized to take. And the mere potential for Walmart to eventually raise a tax-based defense did not strip the District Court of jurisdiction. Because Lisowski merely seeks to enjoin Walmart from charging an excess purchase price, the Third Circuit affirms the District Court's denial of remand based on the TIA. Alternatively, Lisowski argues that principles of comity require a remand. It is well established that federal courts have a "virtually unflagging obligation to exercise the jurisdiction given them." Thus, "abstention from the exercise of federal jurisdiction is the exception, not the rule." Comity is a discretionary doctrine, so the Third Circuit reviews the District Court's denial of remand for abuse of discretion. The Third Circuit has already established that the TIA does not apply to Lisowski's claims for injunctive relief, so it makes little sense to apply comity to his claims for damages. Lisowski is correct, however, that the District Court could someday be faced with the issue of deciding whether 5-Hour Energy is taxable, thus risking the possibility of enjoining a tax. And courts should be hesitant when "entertaining claims for relief that risk disrupting state tax administration." But the District Court has ample tools to manage this case without abstaining from the outset. And given the ultimate dismissal of this case without reference to the taxable status of 5-Hour Energy, "there is nothing unique, complex, or particularly tax-centric about the case." The District Court did not abuse its discretion in determining that the mere potential for a tax-based defense to arise in the future did not warrant setting aside its "virtually unflagging obligation" to hear cases before it. So, the Third Circuit affirms the District Court's denial of remand. B. Lisowski raised common law claims and a statutory claim under the Pennsylvania Unfair Trade Practice and Consumer Protection Law ("UTPCPL"). After denying Lisowski's motion to remand, the District Court dismissed all other claims under Rule 12(b)(6). The Third Circuit affirms, albeit on different grounds. The Third Circuit finds that Lisowski has failed to allege reliance, or any facts supporting justifiable reliance, in his complaint. There is no indication that Lisowski purchased the 5-Hour Energy under the assumption that it was tax free. And there is no indication that Walmart's conduct or representations would lead a reasonable consumer to assume that 5-Hour Energy was tax free. In fact, Lisowski's allegations show that he was charged a sales tax of $.94 for his first purchase of 5-Hour Energy and that he nonetheless purchased another 5-Hour Energy, tax notwithstanding. So, the Third Circuit affirms the dismissal of Lisowski's UTPCPL claim for failure to allege justifiable reliance. The Third Circuit also finds that tather than launch a putative class action, Lisowski could have sought a simple refund from the Pennsylvania Department of Revenue. In fact, Lisowski alleged that another purchaser of 5-Hour Energy petitioned for a refund and was compensated $4.51. That refund would fully compensate him for any alleged harm and would thus be constitutionally adequate. So, Lisowski's common law claims are barred by the existence of a statutory refund mechanism that is available to him. C. Mr. Lisowski contends that the District Court erred in dismissing his complaint with prejudice. But Lisowski "did not ask the District Court for leave to amend his complaint, so he can hardly fault the Court for not granting relief he never requested." As the Third Circuit has noted, district courts do not have a duty to "sua sponte grant leave to amend before dismissing a complaint for failure to state a claim." III. Disposition For these reasons, the Third Circuit affirms the District Court's denial of remand and dismissal of the complaint with prejudice under Rule 12(b)(6). A full-text copy of the Court's July 15, 2022 Opinion is available at https://tinyurl.com/4pdspnvr from Leagle.com. WELLS FARGO: District Court Grants Bid to Dismiss Hudson Class Suit ------------------------------------------------------------------- In the case, KURT L. HUDSON, Plaintiff v. WELLS FARGO & COMPANY, et al., Defendants, Case No. 21-cv-08296-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California issued an order: (i) granting the Defendants' motion to dismiss; and (ii) denying their motion to strike. I. Background Pro se Plaintiff Hudson brings the putative class action against Defendants Wells Fargo Bank, N.A. (the "Bank") and Wells Fargo & Co. (the "Holding Company"). According to the complaint, the Plaintiff, an Illinois resident, obtained a mortgage loan from the Bank in 2005 for a second home in Florida. Due to various hardships brought on by the 2008 recession, Plaintiff defaulted on his monthly mortgage payments. The Plaintiff applied to the Bank for a loan modification under the Home Affordable Modification Program ("HAMP") and the National Mortgage Settlement, which Congress passed to keep people struggling to pay their mortgage in their homes. The Bank denied the modification application. The Plaintiff alleges that the Bank failed to fulfill its fiduciary duties because it did not disclose errors in its loan medication software. He suggests that these errors led to the wrongful denial of his HAMP modification and foreclosure on his property in 2015. In its reply brief, the Bank acknowledges that it publicly disclosed the errors in its loan modification software, which ultimately resulted in denials for certain borrowers. The Bank voluntarily initiated a remediation program and sent letters, some including checks, and offered mediation to impacted borrowers. However, the Plaintiff admits he was not among those who the Bank contacted to participate in the remediation program. Nevertheless, he alleges that the Bank denied his loan modification due to its faulty software program. Based on these facts, the Plaintiff brings nine causes of action, on behalf of himself and a putative class, against the Bank and the Holding Company: (1) "Negligent and Gross Negligence Breach of Contract," (2) "Violation Of California's Unfair Competition Law," (3) "Violation Of Florida's Deceptive And Unfair Trade Practices Act," (4) "Violation Of Florida's Unauthorized Practice of Law Statute," (5) "Breach of Fiduciary Duty," (6) "Fraudulent Concealment," (7) "Fraud On The Florida State And Appellate Courts," (8) "Concealment Fraud And The California and Iowa Federal Courts," and (9) "Revival of Plaintiff's and SubClass Members' Rico Complaint." The Plaintiff contends that he and other putative class members suffered injury, damage, and loss, and seeks punitive damages and reasonable attorneys' fees and costs. The Defendants now move to dismiss the Plaintiff's complaint. They also move to strike the excess pages of Plaintiff's overlong opposition brief. The Court held a hearing on April 28, 2022. II. Discussion A. Class Allegations The Plaintiff claims to represent a class of approximately 1,152,000 members as part of his lawsuit. However, the Bank correctly points out that "pro se plaintiffs cannot serve as putative class representatives." Judge Gilliam notes that the Plaintiff has expressed his intentions to obtain counsel. In his opposition brief, he said that he anticipated finding counsel by February 2022. As of the date of the Order, however, the Plaintiff still is not represented by counsel. Because the Plaintiff may only bring the case on behalf of himself, Judge Gilliam grants the motion to dismiss claims brought on behalf of a putative class, without prejudice to the reassertion of those claims if the Plaintiff retains counsel. B. Wells Fargo Bank As a threshold matter, the Bank asserts that the Court lacks personal jurisdiction over it. A plaintiff may invoke either general or specific personal jurisdiction. "General jurisdiction requires affiliations so continuous and systematic as to render the foreign corporation essentially at home in the forum State, i.e., comparable to a domestic enterprise in that State." Specific jurisdiction, on the other hand, exists if: (1) the defendant has performed some act or consummated some transaction with the forum by which it purposefully availed itself of the privilege of conducting business in California; (2) the plaintiff's claims arise out of or result from the defendant's forum-related activities; and (3) the exercise of jurisdiction is reasonable. In the case, the Plaintiff acknowledges that the Bank is headquartered in South Dakota. He also appears to recognize that the alleged conduct at issue in the case occurred outside of California: The Plaintiff is an Illinois resident, his house is located in Florida, the Bank's mortgage servicing business is located in Iowa, and the Bank's computer servers are located in Florida. The Plaintiff nevertheless asserts that the Court has personal jurisdiction over the Bank because the Defendants "conduct substantial business" in California. Aside from this conclusory sentence, however, he offers no factual allegations to support this contention. The Plaintiff simply notes that "the Bank has serviced hundreds of mortgages for properties located in California." Even if true, the Plaintiff does not explain how such conduct somehow renders the Bank at home in California for purposes of general jurisdiction. And to the extent that he suggests such contacts may suffice for specific jurisdiction, this is not a putative class action. The Plaintiff's claims in the case do not arise out of the Bank's mortgage services for any California properties. Rather, he is an Illinois resident raising claims concerning a mortgage on a Florida property. Judge Gilliam finds that the Plaintiff has not presented sufficient information to show that the Court has personal jurisdiction over the Bank, and grants the motion to dismiss on this basis. C. Holding Company Unlike the Bank, the Holding Company's principal place of business is California. However, the Holding Company argues that the Plaintiff has failed to allege that it is responsible for any of the alleged conduct in the case. Critically, the Plaintiff alleges that the Bank -- not the Holding Company -- serviced his mortgage. He confirmed these allegations in his opposition brief, stating that "Wells Fargo Bank foreclosed on the Plaintiff's first mortgage." However, throughout the complaint, the Plaintiff generally treats the Holding Company and the Bank as the same entity, referring to them collectively as "Wells Fargo." He notes that the Bank is a subsidiary of the Holding Company, and appears to suggest that as the parent company, the Holding Company should also be held responsible. Judge Gilliam holds that a parent company is not automatically liable for the acts of its subsidiaries. The Plaintiff has failed to provide sufficient factual support for his contention that the Holding Company should be held liable for the Bank's alleged conduct. He alleges that the Holding Company "exercises control over the Bank's management team and has the authority to hire and fire the Bank's managers, set company policies and establish the Bank's business strategy." This is not, on its own, sufficient to establish alter ego liability. Perhaps recognizing the difficulty of establishing alter ego liability, the Plaintiff suggests in his opposition brief that the Holding Company also participated in the wrongdoing. But he does not explain in the complaint what misconduct the Holding Company allegedly engaged in. Because the Plaintiff has not sufficiently alleged that the Holding Company is liable for the Bank's misconduct or that it engaged in any misconduct itself, Judge Gilliam grants the motion to dismiss on this basis. D. Motion to Strike In a separate motion, the Defendants also ask the Court to strike the excess pages of the Plaintiff's opposition to the motions to dismiss. The Plaintiff responds that he went over the page limit inadvertently, due to vision problems. While the Plaintiff clearly exceeded the page limit in violation of the local rules, Judge Gilliam denies the Defendants' motion to strike. He cautions the Plaintiff that notwithstanding his pro se status, he will be expected to comply with all applicable federal rules, civil local rules, and standing orders in future. III. Conclusion Accordingly, Judge Gilliam grants the motions to dismiss and denies the motion to strike. Despite the deficiencies he identified, Judge Gilliam cannot say at this stage that amending the complaint would be futile. Therefore, the Plaintiff will file any amended complaint by no later than Aug. 12, 2022. Failure to file an amended complaint by this deadline may result in the dismissal of the action in its entirety without further leave to amend. In addition, the Plaintiff's amended complaint will be dismissed if he does not correct the deficiencies the Court has identified in the Order. Judge Gilliam notes that the Legal Help Center at both the San Francisco and Oakland Federal Courthouses provides free information and limited-scope legal advice to pro se litigants in civil cases. Services are provided by appointment only. An appointment may be scheduled by calling (415) 782-8982 or emailing FedPro@sfbar.org. A full-text copy of the Court's July 13, 2022 Order is available at https://tinyurl.com/73w5x7kc from Leagle.com. WEXFORD HEALTH: Parties Seek to Defer Ruling on Time Extension Bid ------------------------------------------------------------------ In the class action lawsuit captioned as COURTNEY MILLIGAN, individually and on behalf of all others similarly situated, v. WEXFORD HEALTH SOURCES, INC., Case No. 2:21-cv-01411-RJC (W.D. Pa.), the Parties seek to defer ruling on plaintiff's motion for extension of time to file motion for class certification. Milligan filed a Motion to Defer Ruling on June 30, 2022, extending the due date for Milligan's Reply on her Motion for Extension until today, July 7, 2022, to allow the parties more time to discuss terms of the stipulation. The parties conferred on July 6, 2022 and are making progress toward a potential agreement on conditional certification. The parties would request additional time to discuss an agreement on conditional certification which would ultimately result in the withdrawal of Milligan's Motion for Extension. If an agreement can be reached, the parties anticipate filing a new proposed scheduling order by July 22, 2022. Accordingly, the parties request the Court continue to defer a determination of Milligan's motion and allow them an additional two weeks to attempt to reach an agreement on conditional class certification. Wexford Health is one of the nation's premier correctional health care companies. A copy of the Parties' motion dated July 7, 2022 is available from PacerMonitor.com at https://bit.ly/3PkXx0J at no extra charge.[CC] The Plaintiff is represented by: Andrew W. Dunlap, Esq. Michael A. Josephson, Esq. Alyssa White, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713-352-1100 Facsimile: 713-352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com awhite@mybackwages.com - and - Richard J. (Rex) Burch BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: 713-877-8788 Facsimile: 713-877-8065 E-mail: rburch@brucknerburch.com The Defendant is represented by: Kimberly S. Moore, Esq. CLARK HILL PLC 2600 Dallas Parkway, Suite 600 Frisco, TX 75034 Telephone: (469) 287-3922 Facsimile: (469) 227-6563 E-mail: ksmoore@clarkhill.com - and - Amy H. McCrossen One Oxford Centre 301 Grant Street, 14th Floor Pittsburgh, PA 15219 Telephone: (412) 394.7743 Facsimile: (412) 394 2555 ********* 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 ***