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/raid1/www/Hosts/bankrupt/CAR_Public/220905.mbx C L A S S A C T I O N R E P O R T E R Monday, September 5, 2022, Vol. 24, No. 171 Headlines 3M COMPANY: Barnes Suit Alleges Complications From AFFF Products ACCENTCARE INC: Major Sues Over Unpaid Wages & Wrongful Discharge AHP SETTLEMENT: Porter Suit Dismissed for Failure to State Claim ALDO U.S.: Fails to Timely Pay Sales Associates' Wages, Starks Says ALLIED UNIVERSAL: Underpays Employees, Class Action Alleges ALLSTATE VEHICLE: Court Dismisses Advanced Exteriors Complaint AMAZON.COM INC: Amazon Prime Card Ads Misled Shoppers, Bargar Says AMAZON.COM INC: Joyce and 2 Other Securities Suits Consolidated AMAZON.COM SERVICES: Guevara Labor Suit Goes to C.D. California AMENTUM SERVICES: Court Won't Review Remand Order in Weaver Suit AMERICAN EAGLE: Court Grants in Part Bedoya's Bid to Certify Class AMERICAN EXPRESS: Illegally Favors Black Employees, Suit Alleges ANDY FRAIN: Faces Burton FLSA Suit in E.D. New York ANHEUSER-BUSCH: Class Settlement in Cocktails' Suit Discussed APHRIA INC: Faces Class Action Over Alleged Securities Violations APHRIA INC: Rochon Genova Discloses Notice of Certification ASCOLILLO INC: Underpays Delivery Drivers, Webber Suit Claims AUTO BRAKES: Walker Files Suit in Cal. Super. Ct. AW WOODWORKING: Torreblanca Files FLSA Suit in E.D. New York BAYER U.S.: District of New Jersey Dismisses Huertas Class Suit BETTER WORLD FRAGRANCE: Slade Files ADA Suit in S.D. New York BI-RITE RESTAURANT: Underpays Sales Representatives, Guiffre Says BLUE LOBSTER: Toro Files ADA Suit in S.D. New York BOB DEAN: Preliminary Settlement Reached in Nursing Home Suit BOSE CORPORATION: Hollings Suit Removed to N.D. Illinois BOW PLUMBING: Filing of Class Status Bids Extended to Jan. 20, 2023 BP EXPLORATION: Riddell-Hare's Claims Dismissed With Prejudice BRYAN COLLIER: Court Tosses Lumsden Bid to Certify Class Action CAL CENTRAL: California District Court Narrows Claims in Mayen Suit CALIFORNIA: 9th Cir. Partly Affirms Dismissal of Martinez v. Newsom CALIFORNIA: Bid to Proceed Under Pseudonyms in D.B. Suit Granted CANCER & HEMATOLOGY CENTERS: Shepherd Files Suit in W.D. Michigan CAPSULE CORPORATION: J.L. Files Suit in S.D. New York CASH APP: Suit Claims Data Breach Exposed Data of 8.2 Mil. Users CAWLEY & BERGMANN: Wolkenfeld Says Collection Letter Deceptive CENTRAL PAYMENT: Class Settlement in Custom Hair Suit Gets Approval COINBASE GLOBAL: Faces Class Action Over Alleged Security Lapses COMMUNITY HEALTH: Court Denies Bid to Dismiss Amended Padilla Suit CORNERSTONE COMPOSITES: Harrold Sues Over Failure to Pay OT Wages COSTCO WHOLESALE: Skrandel Seeks to Certify Two Classes COUNTY OF CUYAHOGA: Appeals Musial Suit Ruling to Ohio Supreme Ct. COUPANG INC: Bids for Lead Plaintiff Appointment Due October 25 COUPANG INC: Faces Class Action Suit Over Securities Violations CRAFTY GAMES: Toro Files ADA Suit in S.D. New York D. R. HORTON: S.D. Alabama Denies Bid to Remand Morton Suit DANDURAND DRUG CO: Jones Files ADA Suit in S.D. New York DIAKON LOGISTICS: 7th Cir. Reverses Class Cert. in Johnson Suit DINGDONG LTD: Bids for Lead Plaintiff Deadline Due October 25 DIRECTV LLC: Appeals Class Certification Ruling in Vance TCPA Suit ELANCO ANIMAL: Hunter's 1st Amended Suit Dismissed W/o Prejudice ENDO INT'L: Laasko's 2nd Amended Complaint Dismissed With Prejudice ENGELHARDT & CO: Dismissal of Colceriu's Amended Complaint Affirmed ENTEGEE INC: Lambie Sues Over Failure to Pay Project Engineers' OT EXETER FINANCE: Bodnar Sues Over Repossessed Motor Vehicles FIRSTENERGY CORP: Jones & Dowling's Bid to Compel Deposition Okayed FRAMED & FANCY: Toro Files ADA Suit in S.D. New York GENERAL MOTORS: Can Compel Turner to Arbitrate Claims in Bossart GERBER PRODUCTS: Faces Class Action Over Misbranded Toddler Foods GERBER PRODUCTS: Howard Sues Over Mislabeled Baby Food Products GILEAD SCIENCES: Court Narrows Claims in Amended Trust Class Suit GOOD DEAL: Partly Wins Partial Summary Judgment Bid in Dennis Suit GRACIA HARVESTING: Conditional Status of FLSA Collective Sought HEALTHPLANONE LLC: McHugh Files TCPA Suit in D. Connecticut HEALTHY PAWS: Benanav Partly Compelled to Reply to Interrogatories HEIDI E. WASHINGTON: Scott Files Suit in W.D. Michigan HERSHEY CO: Illinois District Court Dismisses Lederman Class Suit HP INC: Keiser Warranty Suit Removed to N.D. Illinois HUMANIGEN INC: Bids for Lead Plaintiff Appointment Due October 25 I.Q. DATA INTERNATIONAL: Wong Sues Over Unfair Debt Collection INMAR INC: Court Excludes Kheyfets Opinions in Mr. Dee's Suit INOVIO PHARMACEUTICALS: Agrees to Settle COVID-19 Suit for $44M JEFFERSON CAPITAL: Martinez Files FDCPA Suit in E.D. California JP MORGAN: Santander Sues Over Unpaid Compensations JUUL LABS: E-Cigarette Ads Target Youth, Pitt County Suit Claims KISLING NESTICO: Judge Brunner Dissents from Denial of Jurisdiction KROGER CO: Overcharges Customers for Groceries, Class Suit Claims LATIN BEAUTY: Bunting Files ADA Suit in E.D. New York LEAD INDUSTRIES: Entry of Final Judgment in Lewis Suit Affirmed LEGACY HEALTHCARE: Rodriguez Sues Over Unpaid Overtime Wages LOTTERY.COM INC: Faces Million Suit Over Drop in Share Price LOUISIANA: Governor Sues Over Mismanagement of Juvenile Facility LOVE BUGS: Court Conditionally Certifies Collective in Deveny MADISON REED: Court Dismisses Brown's Amended Class Complaint MADISON SQUARE: Discovery Underway in MSG Stockholders' Suit MARRIOTT INT'L: Court Denies Helman's Bid for Class Certification MARYMOUNT MANHATTAN: Reynolds Files Suit in S.D. New York MASSACHUSETTS: Reaches $14M Settlement in Drug Lab Scandal Suit MENARD INC: Faces Class Action Lawsuit for Charging Pickup Fees MENZIES AVIATION: Fails to Pay Proper Wages, Amaya Alleges META PLATFORMS: Privacy Class Action Suit to Proceed Cert. Hearing META PLATFORMS: Smidga Sues Over Illegal Data Harvesting NATIONAL FREIGHT: Fails to Pay Proper Wages, Lopez Alleges NATIONSTAR MORTGAGE: Parker Seeks to Certify Homeowner Class NATIONSTAR MORTGAGE: Santos Seeks to Certify Homeowner Class NATIONSTAR MORTGAGE: Sawyer Seeks to Certify Homeowner Class NATIONWIDE MORTGAGE: Nantongo Files Suit Over Unpaid Minimum Wages NEW JERSEY: Court Grants Bids to Certify Class in C.P. v. NJDOE NEW MEXICO: Court Grants Bid to Dismiss Valdez Complaint v. Grisham NIO INC: Saye Sues Over Decline in Securities Market Value ONE CALL: Bid to Stay of Dawson Class Suit Pending Mediation Denied ONEPLUS USA: Bid to Dismiss Wade Suit Granted With Leave to Amend ONETOUCHPOINT INC: Luca Sues Over Inadequate Data Security ONETOUCHPOINT MIDWEST: Guertin Sues Over Data Breach ORACLE AMERICA: Katz-Lacabe Sues Over Unlawful Data Surveillance OREGON: District Court Certifies Class & Subclasses in Wyatt v. DHS PARKMOBILE LLC: Faces Class Action Over Alleged Data Breach PIEDMONT NATURAL: Can Compel Arbitration in Ford-Allemand Suit PLANMEMBER SECURITIES: Rodriguez Sues Over Disclosed Private Info PRACTICE RESOURCES: Stewart Files Suit in N.D. New York PRIMOHOAGIES FRANCHISING: Settlement in Cyberattack Suit Proposed PROCTER & GAMBLE: Diesel Suit Removed to E.D. Missouri PROCTER & GAMBLE: Taylor Sues Over Mislabeled Shave Cream PROGRESSIVE CASUALTY: Evans Files Suit in E.D. Washington PROGRESSIVE MAX: Mason Sues Over Improper Calculation of ACV PULTE HOME: M.D. Florida Denies Bid to Certify Class in Mount Suit RAGAN & RAGAN: Conditional Certification of Settlement Class Sought RARI NUTRITION: Weinholtz Files Suit in S.D. California REBECCA ATWOOD DESIGNS: Hwang Files ADA Suit in E.D. New York ROTO ROOTER: Perez Suit Removed to C.D. California SASOL LTD: Order & Final Judgment Entered in Moshell Class Suit SEARCH WIZARDS: Fails to Properly Pay OT, Fairley Suit Claims SILK OPERATING: Faces Suit Over Creamers' Misleading Protein Labels SNAP INC: $35-M Class Settlement in Data Collection Suit Proposed STARK COUNTY: White Sues Over Unpaid OT for Non-Exempt Employees STARKIST CO: Seeks More Time to File Certiorari Bid in Tuna Suit TAKE-TWO INTERACTIVE: Court Orders Closure of Albrecht v. Zelnick TERRAFORM LABS: Faces Third Major Class Suit Over RICO Violations TG THERAPEUTICS: Bids for Lead Plaintiff Appointment Due Sept. 16 TREMONT CAR: Court Grants Bid for Summary Judgment in Morales Suit ULTRAGREEN LLC: Austin Files TCPA Suit in E.D. Arkansas USA QR CULTURE: Faces Zeng Suit Over Unpaid Restaurant Servers' OT VERMONT BREAD: Court Certifies Class of Employees in Chaney Suit WALGREENS BOOTS: Bell Suit Removed to E.D. Missouri WARNACO SWIMWEAR: Dicks Files ADA Suit in S.D. New York WEST CREEK FINANCIAL: Towns Files Suit in Cal. Super. Ct. WEXFORD HEALTH: Bid to Extend Time to File Class Cert Terminated WHOLE FOODS: Faces Class Action Over Misleading Beef Products' Ads WHOLE FOODS: Safari Sues Over False and Misleading Promotion WM BOLTHOUSE: Bid to Dismiss Mayen Wage & Hour Suit Granted in Part YARD HOUSE: Terpogosyan Sues Over Unpaid Minimum, Overtime Wages ********* 3M COMPANY: Barnes Suit Alleges Complications From AFFF Products ---------------------------------------------------------------- CHRISTOPHER BARNES, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC; KIDDE FIRE FIGHTING, INC; KIDDE PLC INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100, inclusive, Defendants, Case No. 2:22-cv-02802-RMG (D.S.C., August 22, 2022) is a class action against the Defendants for negligence, strict liability, defective design, failure to warn, fraudulent concealment, medical monitoring trust, and violation of the Uniform Voidable Transactions Act. According to the complaint, the Defendants have failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants' AFFF products are dangerous to human health because PFAS are highly toxic and carcinogenic chemicals and can accumulate in the blood and body of exposed individuals. The Defendants have also failed to warn public entities and military members, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products. The Plaintiff used the Defendants' PFAS-containing AFFF products in their intended manner, without significant change in the products' condition due to inadequate warning about the products' danger. The Plaintiff relied on the Defendants' instructions as to the proper handling of the products, says the suit. As a result of the Defendants' omissions and misconduct, the Plaintiff was diagnosed with thyroid disease and commenced on-going medical treatment inclusive of surgical intervention via thyroidectomy, the suit alleges. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwall, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde Fire Fighting, Inc. is a manufacturer of fire safety products based in Mebane, North Carolina. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. The Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. UTC Fire & Security America's Inc. is a manufacturer of security and fire control systems based in Bradenton, Florida. [BN] The Plaintiff is represented by: Jeremy C. Shafer, Esq. VETERAN LEGAL GROUP 700 12th Street N.W., Suite 700 Washington, DC 20005 Telephone: (888) 215-7834 E-mail: jshafer@bannerlegal.com - and – S. James Boumil, Esq. BOUMIL LAW OFFICES 120 Fairmount Street Lowell, MA, 01852 Telephone: (978) 458-0507 E-mail: sjboumil@boumil-law.com - and – Konstantine Kyros, Esq. KYROS LAW 17 Miles Rd. Hingham, MA 02043 Telephone: (800) 934-2921 E-mail: kon@kyroslaw.com ACCENTCARE INC: Major Sues Over Unpaid Wages & Wrongful Discharge ----------------------------------------------------------------- MELISSA MAJOR, individually and on behalf of all others similarly situated, Plaintiff v. ACCENTCARE, INC., ACCENTCARE UCLA HEALTH, LLC, and DOES 1-30, inclusive, Defendants, Case No. 22STCV27216 (Cal. Super., Los Angeles Cty., August 22, 2022) is a class action against the Defendants violations of the California Labor Code, the California Public Policy, the California's Fair Employment and Housing Act, and the Americans With Disabilities Act including wrongful termination, retaliation, failure to pay all wages at time of discharge, failure to provide accurate itemized statements, unfair competition, disability discrimination, failure to prevent harassment and discrimination, negligent supervision and training of employees, breach of implied duty to perform contract with reasonable care, and breach of implied covenant of good faith and fair dealing. The Plaintiff received the Defendants' formal offer of employment on June 1, 2021. However, she encountered several obstacles in completing the Defendants' requirements. The Defendants withdrew her employment offer on June 18, 2021, says the Plaintiff. AccentCare, Inc. is a healthcare services provider based in Texas. AccentCare UCLA Health, LLC is a medical practice company based in California. [BN] The Plaintiff is represented by: Steven Waisbren, Esq. LAW OFFICES OF STEVEN WAISBREN 5850 Canoga Ave., Suite 400 Woodland Hills, CA 91367 Telephone: (818) 710-7102 Facsimile: (818) 532-1214 E-mail: steve@waisbrenlaw.com AHP SETTLEMENT: Porter Suit Dismissed for Failure to State Claim ---------------------------------------------------------------- In the case, JOSEPH ELLIOTT PORTER v. AHP SETTLEMENT TRUST, Civil Action No. 22-2751 (E.D. Pa.), Judge Harvey Bartle, III of the U.S. District Court for the Eastern District of Pennsylvania dismisses Porter's complaint for failure to state a claim. Mr. Porter, proceeding pro se, has filed a complaint in the action against Trust. The Court has permitted Porter to proceed in forma pauperis. Under 28 U.S.C. Section 1915(e)(2)(B)(ii), the Court initially screens his complaint to determine whether it "fails to state a claim on which relief may be granted." In reviewing Porter's complaint, the Court takes judicial notice of matters of public record such as the records and dockets from his prior federal lawsuits. Over the past few years, Porter has filed multiple suits against the Trust. The Trust was established under the Diet Drug Nationwide Class Action Settlement Agreement to compensate class members who suffered from valvular heart disease ("VHD") due to the use of certain diet drugs produced by Wyeth, Inc. See Pretrial Order No. 1415, In re: Diet Drugs Prods. Liab. Litig., Civ. A. No. 99-20593 (Aug. 28, 2000). In this suit as well as in his predecessor suits, Porter seeks compensation on behalf of class member Miguel A. Larrieu whom he assisted in submitting a claim under the Settlement Agreement. Claimants are entitled to compensation in an amount determined in accordance with two sets of benefit matrices under the Settlement Agreement. The matrices classify a claimant based on the severity of medical conditions, age when diagnosed, and the presence of other medical conditions that also may have caused or contributed to a claimant's VHD. Matrix "A-1" describes the compensation available to diet drug recipients with serious VHD who took the diet drugs for 61 days or longer and who did not have certain other conditions that could have contributed to developing VHD. Matrix "B-1" outlines the compensation available to diet drug recipients with VHD who were registered as having only mild mitral regurgitation by the close of the Screening Period, or who took the drugs for 60 days or less, or who had factors that would make it difficult for them to prove that their VHD was caused solely by the use of the diet drugs. Plaintiffs who qualify under Matrix A-1 are generally entitled to greater compensation than those who qualify under Matrix B-1. The Court entered judgment on June 8, 2018, in favor of Larrieu after review of the Trust's resolution of his claim under the Settlement Agreement. Larrieu first submitted a claim to the Trust in June 2015. He sought benefits under Matrix A-1. Larrieu's claim was subject to a multi-tier review pursuant to the procedures approved by the court. Ultimately, the Court determined that he instead qualified under Matrix B-1 because he could not disprove that he suffered from mitral annular calcification, which is a possible contributing factor to VHD as described. Larrieu did not appeal this determination to the Court of Appeals. Meanwhile, Porter pursued a supplemental claim determination on Larrieu's behalf, but that claim was discontinued by the parties' stipulation. In 2020, Porter filed another action related to that supplemental claim in the District of South Carolina -- Porter v. AHP Settlement Tr., Civ. A. No. 20-3184, 2021 WL 719716 (E.D. Pa. Feb. 23, 2021), aff'd, 2021 WL 3161433 (3d Cir. July 27, 2021) (per curiam). The district court transferred the action to the Court. The Court then granted the motion of the Trust to dismiss his suit pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of process. It held alternatively that Porter failed to state a claim upon which relief could be granted under Rule 12(b)(6) for two reasons. First, Porter's claim was barred by res judicata because it was fully litigated ahead of the court's entry of the 2018 final judgment on Larrieu's claim under the Settlement Agreement. Second, since Porter is not an attorney, the Settlement Agreement did not permit him to seek payment of any fees for assisting Larrieu with submitting his claim. Mr. Porter appealed this ruling. The Court of Appeals summarily affirmed the court's judgment on the ground that dismissal was appropriate under Rule 12(b)(6). Mr. Porter filed the present action in the Eastern District of North Carolina, which was transferred to the Court. As in his 2020 action, he alleges in this suit that the Trust did not compensate Larrieu -- and him -- properly under the Settlement Agreement given the nature of Larrieu's injuries. He insists that Larrieu is owed benefits in an amount to be determined under Matrix A-1. He also rehashes that the Trust "owes him the full amount of the settlement he negotiated and executed" on Larrieu's behalf. Judge Bartle explains that claim preclusion, otherwise known as res judicata, prevents a plaintiff from bringing a claim against a defendant if the plaintiff previously litigated that claim against that defendant, and the previous litigation resulted in a final judgment on the merits. The Court's 2018 judgment in favor of Larrieu was in a diversity action. In such cases, it applies federal claim preclusion principles. Under federal law, claim preclusion bars a subsequent suit if there has been "(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action." In the present case, Judge Bartle holds that it is apparent from the face of Porter's complaint and from the record from the 2018 judgment on Larrieu's claim under the Settlement Agreement that res judicata bars Porter's suit. First, judicially approved settlement agreements that resolve a claim, such as Larrieu's original claim against the Trust, may be considered final judgments on the merits of that claim for purposes of claim preclusion. Second, the parties in the present case are the same as the parties to Larrieu's claim under the Settlement Agreement that culminated in the 2018 judgment. Third, Porter's suit involves the same cause of action as that of the 2018 judgment. Accordingly, res judicata bars Porter's successive suit here. In addition, Porter's complaint must be dismissed because his supplemental claim for compensation for his effort to assist Larrieu is not permitted under the Settlement Agreement. It is true that the Settlement Agreement permits attorneys who secure compensation on behalf of a Class Member pursuant to contingency fee arrangements to collect payment of their fees directly from the Trust. See Settlement Agreement Section VIII.E. Porter, however, is not an attorney. The Settlement Agreement does not provide for the payment of any fees to a non-attorney for assistance with the submission of a claim to the Trust. Thus, the Trust has no obligation to pay Porter for any assistance he provided to Larrieu to secure compensation under the Settlement Agreement. For the foregoing reasons, Judge Bartle dismisses Porter's complaint for failure to state a claim pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii). He also considers enjoining Porter from filing any further lawsuits related to his or Larrieu's claims against the Trust without first seeking leave from the court. As mentioned Porter has filed at least three meritless lawsuits in the past three years related to his and Larrieu's claim against the Trust. The All Writs Act, 28 U.S.C. Section 1651, permits the Court to issue a pre-filing injunction "to preclude abusive, groundless and vexatious litigation." Accordingly, Judge Bartle orders Porter to show cause why the Court should not enter an order prohibiting him from making any further filings in the matter or commencing any new actions related to his or Larrieu's claims against the Trust without first seeking leave from the Court. A full-text copy of the Court's Aug. 17, 2022 Memorandum is available at https://tinyurl.com/34yzpvbu from Leagle.com. ALDO U.S.: Fails to Timely Pay Sales Associates' Wages, Starks Says ------------------------------------------------------------------- The case, TALITHA STARKS, individually and on behalf of all others similarly situated, Plaintiff v. ALDO U.S. INC., Defendant, Case No. 1:22-cv-00628 (W.D.N.Y., August 19, 2022) is brought by the Plaintiff as a class action against the Defendant for its alleged violations of the New York Labor Law. The Plaintiff has worked for the Defendant as a sales associate at an Aldo store located in Niagara Falls, New York from approximately 2016 to 2017. The Plaintiff asserts that the Defendant has violated the NYLL by failing to timely compensate her and other similarly situated manual workers. Instead of paying them on a weekly basis, the Defendant paid them every other week or on bi-weekly basis, added the Plaintiff. The Plaintiff seeks judgment, for herself and all other similarly situated manual workers, against the Defendant for liquidated damages, prejudgment interest, reasonable attorneys' fees, expenses, and litigation costs. Aldo U.S., Inc. retails apparel products. [BN] The Plaintiff is represented by: Andrew M. Debbins, Esq. CONNORS LLP 1000 Liberty Building Buffalo, NY 14202 Tel: (716) 852-5533 E-mail: amd@connorsllp.com - and – Yitzchak Kopel, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Tel: (646) 837-7150 Fax: (212) 989-9163 E-mail: ykopel@bursor.com aleslie@bursor.com ALLIED UNIVERSAL: Underpays Employees, Class Action Alleges ----------------------------------------------------------- David Beasley at madisonrecord.com reports that a federal class action alleges Allied Universal Protection Services underpays employees by paying them based on scheduled hours rather than actual hours worked. Halbert James, individually and on behalf of all others similarly situated, filed the complaint in the U.S. District Court for the Southern District of Illinois against Universal Protection Service LLC, doing business as Allied Universal Security Services. "Allied Universal fails to compensate its hourly-paid employees for all time worked in two ways: by following a procedure and policy of paying employees based on scheduled start and end times rather than for all time worked; and by requiring and/or permitting its employees to perform pre-shift work and post-shift work off-the-clock and without pay," the suit states. According to the complaint, James worked from approximately Spring 2021 to June 6, 2022, as an hourly employee at Solvay Flourides, a chemical company in Cahokia. Solvay Clourides is one of Allied Universal's clients. Although employees are required to clock in and out of work, James alleges the company calculates wages based on the scheduled work hours rather than actual time worked. "As a direct consequence of the Timekeeping Policy, defendant has been systematically underpaying its employees significant sums of wages," the suit states. James claims the alleged violations "will be shown from, among other things, a comparison of the paystubs defendant issued to its employees and defendant's own time records for those same employees." He seeks back wages, plus damages and attorney's fees. He is represented by James Bormes of the Law Office of James X. Bormes PC in Chicago. U.S. District Court for the Southern District of Illinois case number 22-cv-1668 [GN] ALLSTATE VEHICLE: Court Dismisses Advanced Exteriors Complaint -------------------------------------------------------------- In the case, ADVANCED EXTERIORS, INC., Plaintiff v. ALLSTATE VEHICLE & PROPERTY INSURANCE COMPANY, Defendant, Civil Action No. 21-cv-01539-PAB-STV (D. Colo.), Judge Philip A. Brimmer of the U.S. District Court for the District of Colorado grants the Defendant's Motion to Dismiss Second Amended Complaint. The Plaintiff is a contractor that repairs and replaces roofs damaged by hailstorms. In repairing and replacing damaged roofs, or "re-roofing," contractors like the Plaintiff must "tear off" the existing roof and replace it with new roofing material. Given the technical nature of roofing work, roofers, as opposed to laborers or unskilled workers, perform both aspects of re-roofing. In adjusting claims, however, the Defendant does not pay the "roofing labor rate" for tearing off the damaged roofing material and instead pays a lower "demolition rate," which the Plaintiff maintains does not represent the market rate. As a result, the Plaintiff, and it believes other roofing companies as well, stopped including the roofing rate on its own estimates when performing this work. The Plaintiff provides three instances of defendant paying the demolition rate rather than the roofing rate for tear-off work. For each of these claims, it alleges that the Defendant "denied benefits" in the difference between the roofing rate and the demolition rate. For instance, the Defendant created a repair estimate for which it "scoped $54.03/SQ for labor," which the Plaintiff states was the demolition rate, while the roofing rate in that location and on that date was $166.78 per square foot. Thus, according to the Plaintiff, the Defendant should have paid $5,182.70 for tear-off work, yet only paid $2,181.19, meaning that the Defendant "denied benefits of $3,001.51" on that claim. The other examples that the Plaintiff provides are similar. The Plaintiff asserts three claims on behalf of itself and seeks to certify a class of other roofing contractors that performed work for defendant and were paid similarly. The claims are for: (1) statutory bad faith under Colo. Rev. Stat. Sections 10-3-1115, 10-3-1116, (2) unjust enrichment, and (3) declaratory judgment that defendant engaged in statutory bad faith. The Defendant moves to dismiss the complaint for lack of constitutional and prudential standing under Rule 12(b)(1) or, alternatively, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The Defendant focuses on the Plaintiff's lack of prudential standing to assert a statutory bad faith claim. It argues that the Plaintiff does not allege that it has "contractual privity or another relationship" with the Defendant. Thus, because the Plaintiff seeks to vindicate not its own rights, but the rights of its insureds, the Defendant argues that the Plaintiff does not have prudential standing. Judge Brimmer finds that the Plaintiff does not have prudential standing. The Plaintiff alleges that it is a first-party claimant under that subsection. It, however, does not allege that it was directly entitled to any benefits teh Defendant owed. Therefore, the issue is whether it was entitled to any benefits that the Defendant owed to an insured. There is no allegation that any insured gave the Plaintiff authority to communicate directly with the Defendant or that the insureds were relieved of any obligation to assert claims on their own behalf. Although the Plaintiff alleges that, "in most instances, roofing contractors work directly with the property owner's insurance company once a homeowner makes a claim related to roof damage," the Plaintiff does not allege that it stood in such a relationship with any of the Defendant's insureds. Nor do any of the policies that the Defendant provided indicate that the Plaintiff stood in any similar relationship. Judge Brimmer concludes that because the Plaintiff is not a first-party claimant and is instead raising the rights of insureds, it does not have prudential standing to bring a statutory bad faith claim. Accordingly, because the Plaintiff has not shown that it is a first-party claimant under the statute, Judge Brimmer grants the Defendant's motion to dismiss the Plaintiff's statutory bad faith and declaratory judgment claims for lack of prudential standing. Judge Brimmer also declines to exercise supplemental jurisdiction over the Plaintiff's unjust enrichment claim, which will be dismissed without prejudice. Although the Court may exercise supplemental jurisdiction over a state law claim if there is a jurisdictional basis for doing so, 28 U.S.C. Section 1367(c)(3) provides that a district court "may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction." The Tenth Circuit has instructed that, "if federal claims are dismissed before trial, leaving only issues of state law," courts should "decline to exercise pendent jurisdiction absent compelling reasons to the contrary," citing Brooks v. Gaenzle, 614 F.3d 1213, 1229-30 (10th Cir. 2010). This rule is consistent with "notions of comity and federalism," which "demand that a state court try its own lawsuits." The Plaintiff seeks to certify a class of "all persons or entities who performed roofing work for an Allstate insured and were denied payment of the roofing labor rate for removal of roofing materials by Allstate." But the fact that plaintiff brought this case as a class action is of no consequence to the issue of dismissal. Given that the Plaintiff's claims are typical of other class members' claims, Judge Brimmer holds that there is no basis to believe class members have prudential standing. If other class members had prudential standing because they were in privity with the Defendant in such a way that they were entitled to benefits that defendant owed to an insured, then the Plaintiff's claims would not be typical of those class members' claims. Regardless, prudential standing "places limits on the class of persons who may invoke the courts' decisional and remedial powers." The Plaintiff has not shown that the class of persons it seeks to represent could invoke the Court's "decisional and remedial powers." In its response, the Plaintiff asks for leave to amend. Judge Brimmer holds that the Plaintiff's request is improper. Pursuant to the Local Rules, "a motion will not be included in a response or reply to the original motion. A motion will be filed as a separate document." The Local Rules also require a party seeking to file an amended pleading to attach the proposed amended pleading. The Plaintiff did not do so. For the foregoing reasons, Judge Brimmer grants the Defendant's Motion to Dismiss Second Amended Complaint and Memorandum of Law in Support. He dismisses the Plaintiff's first and second claims with prejudice. He dismisses the Plaintiff's second claim without prejudice. The case is closed. A full-text copy of the Court's Aug. 19, 2022 Order is available at https://tinyurl.com/z4phyvcd from Leagle.com. AMAZON.COM INC: Amazon Prime Card Ads Misled Shoppers, Bargar Says ------------------------------------------------------------------ ROBERT BARGAR and ELINOR NELSON, individually and on behalf of all others similarly situated, Plaintiffs v. AMAZON.COM, INC. d/b/a AMAZON, Defendant, Case No. 8:22-cv-01555 (C.D. Cal., August 22, 2022) is a class action against the Defendant for breach of contract, unjust enrichment, and violations of the California Consumers Legal Remedies Act and California's Unfair Competition Law. According to the complaint, the Defendant is engaged in false, deceptive, and misleading advertising, labeling, and marketing of its Amazon Prime Rewards Visa Signature Card. On its website, Amazon states that shoppers earn 5 percent back at Amazon Fresh grocery stores when they use their Amazon Prime Rewards Visa Signature Card with an eligible Prime membership. Similarly, Amazon advertises in flyers that card holders can earn 5 percent back at Amazon Fresh stores. However, these claims by Amazon are false, as card holders in reality receive only 1 percent back at Amazon Fresh when they use their card. Through its deceptive practices, Amazon is failing to pay consumers thousands if not millions of dollars to which the card holders are entitled. The Plaintiffs seek to stop these deceptive practices, especially when Amazon is opening more Amazon Fresh stores throughout the United States, says the suit. Amazon.com, Inc. is an electronic commerce company, with its principal place of business in Seattle, Washington. [BN] The Plaintiffs are represented by: Abbas Kazerounian, Esq. Jason A. Ibey, Esq. KAZEROUNI LAW GROUP, APC 321 N. Mall Drive, Suite R108 St. George, UT 84790 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com jason@kazlg.com AMAZON.COM INC: Joyce and 2 Other Securities Suits Consolidated --------------------------------------------------------------- Judge John H. Chun of the U.S. District Court for the Western District of Washington, Seattle Division, consolidates the cases, SONNY JOYCE, Individually and On Behalf of All Others Similarly Situated, Plaintiff v. AMAZON.COM, INC., ANDREW R. JASSY, JEFFREY P. BEZOS, BRIAN T. OLSAVKSY, DAVID A. ZAPOLSKY, and NATE SUTTON, Defendants. ASBESTOS WORKERS PHILADELPHIA WELFARE AND PENSION FUND, on behalf of itself and all others similarly situated, Plaintiff v. AMAZON.COM, INC., ANDREW R. JASSY, BRIAN T. OLSAVSKY, and DAVID FILDES, Defendants. DETECTIVES ENDOWMENT ASSOCIATION ANNUITY FUND, Individually and On Behalf of All Others Similarly situated, Plaintiff v. AMAZON.COM, INC., ANDREW R. JASSY, BRIAN T. OLSAVSKY, and DAVID FILDES, Defendants, Case Nos. 2:22-cv-00617-JHC, 2:22-cv-00934-JHC, 2:22-cv-00950-JHC (W.D. Wash.), for all purposes. On May 6, 2022, the putative securities class action Joyce v. Amazon.com, Inc., 2:22-cv-00617 was filed against Defendants Amazon, Jassy, Bezos, Olsavsky, Zapolsky, and Sutton, asserting claims under Section 10(b) of the Securities Exchange Act of 1934. The claims alleged in Joyce arise from alleged misrepresentations and omissions concerning Amazon's alleged use of third-party seller data (the "Third Party Seller Allegations"), and allege a putative Class Period of Feb. 1, 2019 through April 4, 2022, inclusive. On May 31, 2022, the parties in Joyce filed a stipulation concerning deadlines for filing an amended or consolidated complaint, and deadlines for the Defendants to respond to any amended or consolidated complaint, which the Court approved on June 1, 2022. On June 28, 2022, the putative securities class action CWA Local 1180 Members' Annuity Fund v. Amazon.com, Inc., 2:22-cv-00907 was filed against the same Defendants as named in Joyce, asserting Section 10(b) claims under the Exchange Act and asserting the same Third Party Seller Allegations asserted in Joyce, as well as additional Section 10(b) claims relating to the capacity of Amazon's fulfillment network (the "Capacity Allegations"), and alleging a putative Class Period of Feb. 1, 2019 through April 28, 2022, inclusive. On June 30, 2022, the Plaintiff in CWA Local filed a Notice of Voluntary Dismissal of that action. On July 6, 2022, the above-captioned putative securities class action Asbestos Workers Philadelphia Welfare and Pension Fund v. Amazon.com, Inc., et al., 2:22-cv-00934-JHC was filed against Defendants Amazon, Jassy, Olsavsky, and David Fildes, asserting Section 10(b) claims under the Exchange Act, arising from the Capacity Allegations previously asserted in CWA Local, and alleging a putative Class Period of July 30, 2021 through April 28, 2022, inclusive. On July 6, 2022, the counsel for the Plaintiff in Asbestos Workers published a notice, pursuant to the Private Securities Litigation Reform Act of 1995, advising members of the putative class in Asbestos Workers of a Sept. 6, 2022 deadline to seek appointment as Lead Plaintiff in that action . On July 8, 2022, the putative securities class action Detectives Endowment Association Annuity Fund v. Amazon.com, Inc., et al., 2:22-cv-0095-JHC (together with Joyce and Asbestos Workers, the "Related Actions") was filed against the same Defendants as named in Asbestos Workers, asserting Section 10(b) claims premised on the Capacity Allegations under the Exchange Act. On July 22, 2022, pursuant to the PSLRA, the Court entered an Order appointing Universal-Investment-Gesellschaft mbH, Universal-Investment-Luxembourg S.A., Menora Mivtachim Insurance Ltd., Menora Mivtachim Pensions and Gemel Ltd., The Phoenix Insurance Company, Ltd., and The Phoenix Provident Pension Fund Ltd. as Lead Plaintiffs in Joyce. The parties agree that the Related Actions allege violations of the same law, Section 10(b) and 20(a) of the Exchange Act; share some defendants in common (namely, Amazon, Jassy, and Olsavsky); and reflect overlap in the alleged putative Class Periods and thus members (i.e. July 31, 2021 to April 4, 2022, inclusive), which supports the consolidation of the Related Actions (without prejudice to the Defendants' position that the Third-Party Seller Allegations and Capacity Allegations reflect distinct theories of alleged fraud). The parties agree that consolidation is warranted under Federal Rule of Civil Procedure 42(a) and will benefit the Court and the parties involved by decreasing the amount of duplicative discovery, research, and motions practice that would result if the Related Actions proceeded independently. They agree that, upon consolidation of the Court of the Related Actions, the Lead Plaintiffs will file a consolidated amended complaint that will include both the Third Party Seller Allegations and the Capacity Allegations. The parties agree, by and between their counsel, and subject to Court approval, that: 1. Pursuant to F.R.C.P. 42(a), the Related Actions (Joyce, Asbestos Workers, and Detectives) are consolidated for all purposes. All claims alleged therein will proceed under the leadership of the Lead Plaintiffs previously appointed in the Joyce Action. All future pleadings related to any of the entitled matters will bear the consolidated caption of the Order and will be filed solely in case number C22-0617JHC. 2. These actions will be referred to as the Consolidated Action. The Order will apply to the Consolidated Action and to each case that is subsequently filed in the Court which arises from the Third Party Seller Allegations or the Capacity Allegations, or substantially similar allegations, as in the Consolidated Action. 3. The Notice of Pendency of Asbestos Workers is vacated. No further appointment of Lead Plaintiff(s) pursuant to the PSLRA is warranted in Asbestos Workers, Detectives, or any other case that is subsequently filed in the Court that arises from the Third Party Seller Allegations or the Capacity Allegations, or substantially similar allegations, as the Consolidated Action. 4. The deadlines for Lead Plaintiffs to file, in the Consolidated Action, a consolidated amended complaint consistent with the parties' agreements set forth in the Stipulated Motion, and for the Defendants to respond to such complaint, will be the deadlines set in the Court's order of June 1, 2022. Judge Chun so ordered. A full-text copy of the Court's Aug. 17, 2022 Order is available at https://tinyurl.com/5f93ud2v from Leagle.com. BRESKIN, JOHNSON & TOWNSEND, PLLC, Roger M. Townsend -- rtownsend@bjtlegal.com -- Seattle, WA, Local Counsel for Universal-Investment-Gesellschaft mbH and Universal-Investment-Luxembourg S.A. MOTLEY RICE LLC, Gregg S. Levin -- glevin@motleyrice.com -- Joshua C. Littlejohn -- jlittlejohn@motleyrice.com -- Christopher F. Moriarty -- cmoriarty@motleyrice.com -- Mt. Pleasant, SC, Counsel for Universal-Investment-Gesellschaft mbH and Universal-Investment-Luxembourg S.A. and Co-Lead Counsel for the Class in Joyce. POMERANTZ LLP, Jeremy A. Lieberman -- jalieberman@pomlaw.com -- J. Alexander Hood II -- ahood@pomlaw.com -- New York, New York. POMERANTZ LLP, Orly Guy, Eitan Lavie -- eitan@pomlaw.com -- Givatayim, Israel, Counsel for Menora Mivtachim Insurance Ltd., Menora Mivtachim Pensions and Gemel Ltd., The Phoenix Insurance Company, Ltd., and The Phoenix Provident Pension Fund Ltd. and Co-Lead Counsel for the Class in Joyce. BADGLEY MULLINS TURNER PLLC, Duncan C. Turner -- dturner@badgleymullins.com -- Seattle, WA, Local Counsel for Menora Mivtachim Insurance Ltd., Menora Mivtachim Pensions and Gemel Ltd., The Phoenix Insurance Company, Ltd., and The Phoenix Provident Pension Fund Ltd. TOUSLEY BRAIN STEPHENS PLLC, Kim D. Stephens, P.S. -- kstephens@tousley.com -- Cecily C. Jordan -- cjordan@tousley.com -- Seattle, WA, Counsel for the Detectives Endowment Association Annuity Fund. BARRACK, RODOS & BACINE, STEPHEN R. BASSER -- sbasser@barrack.com -- SAMUEL M. WARD -- sward@barrack.com -- San Diego, CA, -and- BARRACK, RODOS & BACINE, JEFFREY A. BARRACK -- jbarrack@barrack.com -- Philadelphia, PA, Counsel for the Detectives Endowment Association Annuity Fund. BYRNES KELLER CROMWELL LLP, John A. Tondini -- jtondini@byrneskeller.com -- Seattle, Washington, Liaison Counsel for Plaintiff Asbestos Workers Philadelphia Welfare and Pension Fund. FENWICK & WEST LLP, Brian D. Buckley -- bbuckley@fenwick.com -- Seattle, WA, Attorneys for the Defendants. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP, Avi Josefson -- avi@blbglaw.com -- Adam Hollander -- adam.hollander@blbglaw.com -- Scott R. Foglietta -- scott.foglietta@blbglaw.com -- New York, NY, Counsel for Plaintiff Asbestos Workers Welfare and Philadelphia Pension Fund. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Daniel J. Kramer -- dkramer@paulweiss.com -- (admitted pro hac vice) Audra J. Soloway -- asoloway@paulweiss.com -- (admitted pro hac vice) Daniel S. Sinnreich -- dsinnreich@paulweiss.com -- (admitted pro hac vice) New York, NY. Martha L. Goodman -- mgoodman@paulweiss.com -- (admitted pro hac vice) Washington, DC, Attorneys for the Defendants. AMAZON.COM SERVICES: Guevara Labor Suit Goes to C.D. California --------------------------------------------------------------- The case styled ROBERT GUEVARA, individually and on behalf of all others similarly situated v. AMAZON.COM SERVICES LLC and DOES 1 to 10, inclusive, Case No. 56-2022-00567889-CU-OE-VTA, was removed from the Superior Court of the State of California, County of Ventura, to the U.S. District Court for the Central District of California on August 22, 2022. The Clerk of Court for the Central District of California assigned Case No. 2:22-cv-05948 to the proceeding. The case arises from the Defendant's alleged violation of the California Labor Code and the California Public Policy including failure to provide a reasonable accommodation, wrongful termination, breach of implied-in-fact contract not to terminate, failure to engage in the interactive process, and failure to prevent discrimination. Amazon.com Services LLC is an electronic commerce company based in Seattle, Washington. [BN] The Defendant is represented by: Brian D. Berry, Esq. Sarah Zenewicz, Esq. Roshni C. Kapoor, Esq. MORGAN, LEWIS & BOCKIUS LLP One Market Spear Street Tower San Francisco, CA 94105-1596 Telephone: (415) 442-1000 Facsimile: (415) 442-1001 E-mail: brian.berry@morganlewis.com sarah.zenewicz@morganlewis.com roshni.kapoor@morganlewis.com AMENTUM SERVICES: Court Won't Review Remand Order in Weaver Suit ---------------------------------------------------------------- In the case, STEPHEN V. WEAVER, individually, and on behalf of all others similarly situated, Plaintiff v. AMENTUM SERVICES, INC.; AECOM.; and DOES 1 through 20, inclusive, Defendants, Case No.: 22-cv-00108-AJB-NLS (S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court for the Southern District of California issued an order: a. granting the Defendant's request for judicial notice; and b. denying the Defendant's motion for reconsideration of the Court's Order granting the Plaintiff's motion to remand and denying as moot the Defendant's motion to dismiss. The Plaintiff, a former nonexempt employee of Defendant Amentum, filed a class action complaint in San Diego Superior Court on Nov. 24, 2021, alleging wage and hour violations. He asserted eight causes of action against the Defendant: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) unpaid meal period premiums; (4) unpaid rest period premiums; (5) failure to reimburse business expenses; (6) itemized wage statement penalties; (7) failure to pay all wages due upon separation of employment; and (8) violation of California Business and Professions Code Section 17200 et seq. ("UCL"). The Defendant removed the case to the Court on Jan. 26, 2022, pursuant to the Class Action Fairness Act ("CAFA"), alleging that (1) the amount in controversy exceeded $5 million, exclusive of costs and interest; (2) the aggregate number of putative class members in all proposed classes was 100 or greater; and (3) diversity of citizenship existed between at least one putative class member and the named defendants in the matter. The Plaintiff filed a Motion to Remand on Feb. 8, 2022, alleging the Complaint failed to meet the minimum amount-in-controversy requirement necessary for jurisdiction under CAFA. The Defendant filed its Opposition to Motion to Remand and Motion to Dismiss Plaintiff's Complaint on Feb. 16, 2022. The Court granted the Plaintiff's Motion to Remand and denied as moot the Defendant's Motion to Dismiss on March 30, 2022. On April 14, 2021, the Defendant filed the instant Motion for Reconsideration of the Remand Order, contending that a Ninth Circuit opinion, Jauregui v. Roadrunner Transportation Services, 28 F.4th 989 (9th Cir. 2022), should have impacted the Court's calculus in determining the amount-in-controversy for purposes of satisfying CAFA. The Defendant requests judicial notice of two documents: (1) the Ninth Circuit's opinion in Jauregui v. Roadrunner Transportation Services, 28 F.4th 989 (9th Cir. 2022); and (2) the Central District of California's opinion in Mills v. Rescare Workforce Services, No. 2-20-cv-10860-FLA (JPRx), 2022 U.S. Dist. LEXIS 51642, at *22 n.12 (C.D. Cal. Mar. 22, 2022). As the foregoing two documents are court records, Judge Battaglia finds judicial notice warranted. However, a court may only take judicial notice of the "existence of those matters of public record but not the veracity of the arguments and disputed facts contained therein." With these limitations in mind, Judge Battaglia grants the Defendant's request for judicial notice. The Plaintiff asserts the Court lacks jurisdiction to hear the Defendant's motion for reconsideration because it is untimely. He relies on the general rule that an order to remand a case based on the absence of subject matter jurisdiction is typically not reviewable, and any such order would normally mark the end of federal court jurisdiction over the remanded claims. He elaborates that while CAFA carves out a limited exception to this rule by giving appellate courts discretion to accept appeals from orders granting or denying remand of class actions, the application for appellate review of the order must be made "not more than 10 days after entry of the order." The Defendant argues the Court is vested with continuing jurisdiction of a case under CAFA, up to and including the ability to reconsider its own remand order as an alternative to appellate review. It further argues that any filing deadlines for motions under the Court's continuing authority are governed by Rules 59(e) and 60(b), and are set at 28 days and one year, respectively. It asserts that CAFA's deadline of ten days to appeal as outlined in 28 U.S.C. Section 1453(c)(1) is not applicable to this motion for reconsideration, and that such an assertion is unsupported by law. The Defendant contends the Court's jurisdictional authority to reconsider its remand order is derived from Section 1453(c)(1), but that any corresponding deadlines for parties to file a motion for reconsideration are to be found under FRCP 59(e) or 60(b). It further argues, among other things, that a Ninth Circuit holding in Jauregui v. Roadrunner Transp. Servs., 28 F.4th 989 (9th Cir. 2022), dated March 17, 2022, should have impacted the Court's calculus when determining the amount in controversy under CAFA. Specifically, it argues that Jauregui limits the Court's ability to apply a zero-dollar valuation to a plaintiff's claims unless certain requirements are met. The Ninth Circuit issued its holding on March 17, 2022, after the Defendant had briefed its Motion to Dismiss. Judge Battaglia finds that despite the plain language of Section 1453(c), there does not yet appear to be consensus as to the district courts' retention of jurisdiction after granting a motion to remand. The Ninth Circuit has not determined whether district courts have jurisdiction to reconsider remand orders under Section 1453(c). The Defendant did not file a petition for appeal of the Court's remand order. While there are instances where a court has treated a motion for reconsideration as a proxy for a petition for appellate review, in every one of those cases, the parties seeking relief filed those motions within the 10-day statutory timeframe set forth in Section 1453(c)(1). Had the Defendants likewise filed their Motion for Reconsideration within the 10 days statutorily permitted by Section 1453(c)(1), the Court likely would have had jurisdiction to reach the merits of the Defendant's arguments as to whether the Court erred in remanding the case in light of the Jauregui ruling. But that is not the case here. To allow the Defendants to abide only by the statutory filing deadlines set out in FRCP 59(e) or 60(b), as they contend they should be allowed to do, would circumvent the plain meaning of 28 U.S.C. Sections 1447 and 1453, impermissibly widening the narrow exception for appellate review of remand orders that Congress intended to provide for CAFA cases. For the foregoing reasons, Judge Battaglia grants the Defendant's Request for Judicial Notice and denies the Defendant's Motion for Reconsideration. A full-text copy of the Court's Aug. 17, 2022 Order is available at https://tinyurl.com/366dry77 from Leagle.com. AMERICAN EAGLE: Court Grants in Part Bedoya's Bid to Certify Class ------------------------------------------------------------------ In the case, EVER BEDOYA, DIEGO GONZALES, and MANUEL DECASTRO, on behalf of themselves and all those similarly situated, Plaintiffs v. AMERICAN EAGLE EXPRESS, INC., d/b/a AEX GROUP, Defendant, Civil Action No. 14-2811 (ES) (JSA) (D.N.J.), Judge Esther Salas of the U.S. District Court for the District of New Jersey grants in part and denies in part the Plaintiffs' motion for class certification. Presently before the Court is a motion for class certification filed by the Plaintiffs -- three former courier drivers of Defendant AAEX. They claim that AEX misclassified them as independent contractors under a Transportation Brokerage Agreement ("TBA") that they and all other similarly situated couriers signed. Due in part to that misclassification, they claim that AEX violated the New Jersey Wage Payment Law ("WPL") by withholding wages due to them as employees, and the New Jersey Wage and Hour Law ("WHL") by withholding overtime pay due to them as employees. The Plaintiffs seek to certify a class consisting of all persons who executed a TBA to perform courier services for AEX, either personally or on behalf of a corporate entity, and worked for AEX as a courier at any time from May 1, 2008, to the present in the State of New Jersey. AEX provides "last-mile delivery, courier solutions, fleet logistics, and critical delivery for material that is time-sensitive or confidential" to a variety of large companies such as hospitals, drug companies, and pharmacies. Between May 1, 2008, and July 2, 2014, AEX had 754 couriers providing delivery services in New Jersey, working out of four regional distribution centers in Clifton, Delran, Linden, and New Brunswick. All couriers who drove for AEX signed a TBA. Originally, couriers could sign the TBAs as individuals, but on Aug. 25, 2014, AEX issued a notice to couriers that it would only contract with separate business entities. It gave couriers until Oct. 10, 2014, to submit "the attached Name-Change Addendum" to change the operative TBA "to reflect the business entity name." Both AEX and the courier could terminate the relationship for any reason by giving the other party 10-days' notice in writing. The TBA expressly classified the courier as an independent contractor, as opposed to an employee. However, the Plaintiffs contend that because AEX exercised significant control over them, they were employees under New Jersey law. That conclusion, they claim, is based on the TBAs they signed and AEX's generally applicable corporate policies. On May 1, 2014, the Plaintiffs filed the putative class action against AEX, raising three causes of action. First, they claim that AEX violated the WPL, N.J.S.A. Section 34:11-4.4, by taking certain deductions or withholdings from their wages that are generally not permitted to be taken from employees. Second, they claim that AEX violated the WHL, N.J.S.A. Section 34:11-56a4, by withholding overtime pay due to them as employees for hours worked over 40 in a week. Third, they claim that AEX was unjustly enriched through the deductions, withholdings, and unpaid overtime. A necessary, though not sufficient, condition for success on all three claims is that the couriers were employees under New Jersey law. The Plaintiffs move for class certification under Federal Rule of Civil Procedure 23. The Court held the motion in abeyance pending settlement discussions. The parties have recently indicated that they could not settle. Under Rule 23, a party seeking class certification must satisfy both the conjunctive requirements of 23(a) and one of the requirements of 23(b). Rule 23(a) requires the party seeking class certification to show: (1) numerosity (a class so large that joinder of all members is impracticable); (2) commonality (questions of law or fact common to the class); (3) typicality (named parties' claims or defenses are typical of the class); and (4) adequacy of representation (representatives will fairly and adequately protect the interests of the class). Where, as in the case, a party seeks to certify a class under 23(b)(3), the party must additionally show (5) predominance -- "that the questions of law or fact common to class members predominate over any questions affecting only individual members" -- and (6) superiority -- "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Finally, in this context, the party seeking class certification must show ascertainability -- that the class is "defined with reference to objective criteria," and there is "a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition." Judge Salas opines that (i) the proposed class consists of at least 754 members, and there might be many more class members because that number does not account for new class members since July 2, 2014; (ii) the Plaintiffs' theory of relief is that each courier was misclassified by AEX as an independent contractor, signed an identical TBA, worked pursuant to the same controls, were subject to the same types of withholdings to their compensation, and were not paid overtime compensation under the same policy; and (iii) the Plaintiffs have both the ability and incentive to represent the class, and the record does not disclose any conflicts between the Plaintiffs and the putative class members. Judge Salas further opines that (i) predominance is satisfied with respect to the Plaintiffs' WPL claim; (ii) predominance is not satisfied with respect to the Plaintiffs' claim under the WHL because they do not specify whether data from the couriers' handheld scanners still exists, nor do they specify what type of representative evidence they would rely on; (iii) the Plaintiffs do not respond to AEX's contention in their reply brief that a claim of unjust enrichment requires an individualized fact-intensive inquiry under New Jersey law; (iv) superiority is satisfied as to the Plaintiffs' WPL claim; and (v) ascertainability is satisfied with respect to the Plaintiffs' WPL claim. For these reasons, Judge Salas grants in part and denies in part the Plaintiffs' motion for class certification. An appropriate Order will be entered. A full-text copy of the Court's Aug. 17, 2022 Opinion is available at https://tinyurl.com/6ryd3wzm from Leagle.com. AMERICAN EXPRESS: Illegally Favors Black Employees, Suit Alleges ---------------------------------------------------------------- Abraham Jewett at topclassactions.com reports that a former American Express manager accused the company of illegally favoring Black workers and providing a financial incentive for its executives to help enforce the company's "racial quotas." Plaintiff Brian Netzel claims American Express became a "racially toxic" work environment where rules were enforced differently based on "identity group membership." "The company's policies incentivized coworkers and supervisors to use race as a cudgel through which personal grudges and ambitions could be executed," the American Express class action states. Netzel argues American Express' alleged favoring of its Black employees led to "hundreds" of white employees being let go from the company or forced to leave "because they could not tolerate the racially repressive environment." "For those that remained, American Express deducted the difference between the working conditions promised and those received from their hearts and their self-esteem and their mental health," the American Express class action states. American Express class action alleges retaliatory behavior over hiring decisions American Express wants its percentage of Black employees to "match that of the U.S. population," the lawsuit claims. Executives who were "unwilling to make employment decisions based purely on race rather than merit," meanwhile, would either be punished, scolded or let go from the company entirely, the American Express class action alleges. "Once American Express and (CEO Stephen Squeri) handed down their racial engineering marching orders, it gave executives carte blanche to ruthlessly implement a racial caste and quota system in the company," according to the lawsuit. Netzel claims American Express violates the Civil Rights Act of 1964. He demands a jury trial and requests declaratory and injunctive relief along with an award of general, compensatory and punitive damages for himself and all class members. Netzel wants to represent a class of all "past, present or potential white employees of American Express" who will be, have been or are being discriminated against in the terms and conditions of their employment on account of their race. A separate lawsuit was filed against American Express last year over claims the company wrongly listed that he was dead, preventing him from being able to receive credit. The case is currently stayed pending arbitration. The plaintiff is represented by David Pivtorak of The Pivtorak Law Firm and Aaron T. Martin of Martin Law and Mediation PLLC. The American Express class action lawsuit is Netzel v. American Express Company, et al., Case No. 2:22-cv-01423, in the U.S. District Court for the District of Arizona. [GN] ANDY FRAIN: Faces Burton FLSA Suit in E.D. New York --------------------------------------------------- WILLIE BURTON, DAVID JOSEPH, SCOTT VADEN, and HOLLEE WARRIOR, on behalf of themselves and all others similarly situated, Plaintiffs v. ANDY FRAIN SERVICES, INC., Defendant, Case No. 1:22-cv-04968 (E.D.N.Y., August 22, 2022) is a class action against the Defendant for violations of the Fair Labor Standards Act. Andy Frain Services, Inc. is a company that offers security services, headquartered in Illinois. [BN] The Plaintiff is represented by: William M. Brown, Esq. Brown Kwon & Lam, LLP 521 5th Avenue, Ste. 1744 New York, NY 10175 Telephone: (212) 295-5825 E-mail: wbrown@bkllawyers.com ANHEUSER-BUSCH: Class Settlement in Cocktails' Suit Discussed ------------------------------------------------------------- Mike Pomranz at foodandwine.com reports that with the current (or possibly already waning) craze for hard seltzers and canned cocktails, it's interesting to consider that Anheuser-Busch may have been ahead of the curve. A decade ago, in 2012, the beer giant launched Bud Light Lime-A-Rita, originally a brand extension of their 2008 surprise hit, Bud Light Lime. Anheuser-Busch's "Ritas" -- sparkling, 8 percent ABV, malt beverages available in a range of margarita-like flavors -- have since lost the "Bud Light" from their moniker, but the Ritas have remained popular enough to stick around. Yet, despite that longevity, the brand did face a legal bump along the road. And if you've drank any of Anheuser-Busch's Ritas products since 2018, you could be eligible for free money, even without a proof of purchase. Back in 2020, a class action lawsuit was filed against the brewer claiming that Anheuser-Busch was misleading consumers into believing that these cocktail-inspired products actually contained spirits. "Nowhere on the packaging did [the plaintiff] see a disclaimer or any other statement indicating that the margarita product does not contain tequila, or that the product is just a flavored beer," the original complaint stated, according to the St. Louis Business Journal. Two years later, a settlement has been reached. Last month, despite admitting no wrongdoing, Anheuser-Busch agreed to end litigation by financially compensating eligible consumers who had purchased Rita products and by altering the language used to sell these products, according to the site Top Class Actions. Then, the claims process opened. On the site RitasSettlement.com, anyone who purchased any Ritas product in the U.S. for personal consumption from January 1, 2018, to July 19, 2022 can fill out a claim form until December 16. A total of 112 different Rita-branded products are included in the settlement. Consumers with a proof of purchase can claim up to $21.25 per household, but even without a proof of purchase, a claim can be made for a refund up to $9.75. That said, as Top Class Action points out, to get full compensation, you'll need to have drunk a lot of Ritas. Payments are reportedly based on the type of products purchased, and, for instance, for 8-ounce cans, consumers can receive $0.30 per four-pack or $0.60 per 24-pack. It leaves a big question: If you're claiming a full refund because you'd purchased, say, 36 cases of Lime-A-Ritas for personal consumption, can you really say you weren't familiar enough with the product to know it doesn't contain tequila? But hey, I'm not here to judge, that's what the federal court is for. [GN] APHRIA INC: Faces Class Action Over Alleged Securities Violations ----------------------------------------------------------------- Have you suffered a loss on your investment in Aphria common shares which you purchased in 2018? The Ontario Superior Court of Justice has granted leave pursuant to the Ontario Securities Act and has certified a global securities class action which permits a defined group of investors (the "Class") to pursue claims against Aphria Inc. and certain of its Officers and Directors ("Aphria Defendants"). It is alleged that the Aphria Defendants made material misrepresentations to the market about two significant international transactions during 2018 and that public disclosure about these acquisitions on December 3 and 4, 2018 caused the price of Aphria's common shares to fall substantially, resulting in investor losses. The certified class action is Vecchio Longo Consulting Services Inc. v. Aphria Inc. et al. Ontario Superior Court of Justice Court File No. CV-19-0061408600 CP (the "Class Action"). It claims monetary damages on behalf of the Class. The allegations made in the Class Action have not been proven and are disputed by the Aphria Defendants. NOTE: Claims in this Action against Carl Merton were dismissed, on consent, without costs by Court Order on August 6, 2021 and claims against Clarus Securities Inc., Canaccord Genuity Corp., Cormark Securities Inc., Haywood Securities Inc. and Infor Financial Inc. were dismissed, on consent, without costs, by Court Order on August 18, 2022. Who is a Class Member? The Action has been certified on behalf of all persons or entities, wherever they may reside, who acquired Aphria common shares during the period of time after 07:00 ET January 29, 2018 until 08:25 ET December 3, 2018 ("Class Members"). This includes those individuals who acquired Aphria shares in the secondary market (that is, in usual course on the open market via a stock exchange like the TSX or the NYSE or an over the counter exchange), as well as those who acquired their shares by way of Aphria's Prospectus Offering in June 2018. If you are an eligible Class Member and the Class Action is successful you may be entitled to share in any monetary award or settlement. If you wish to participate in the class action, DO NOTHING. As a Class Member, you will not be required to pay any costs in the event that the Class Action is unsuccessful. If the Class Action is successful at trial or if a settlement is reached, you may be entitled to share in any award or settlement. A notice would be provided to the Class providing details concerning the terms of the settlement or award and how eligible Class Members might make a claim for compensation. Class Members who DO NOT want to participate in the Action must opt out. If you do not wish to participate in the Class Action, and be bound by or receive any benefits from it, you must opt out by notifying RicePoint Administration Inc. by November 24, 2022 at: Aphria Securities Class Action c/o RicePoint Administration Inc. P.O. 3355 London, ON N6A 4K3 [GN] APHRIA INC: Rochon Genova Discloses Notice of Certification ----------------------------------------------------------- The Ontario Superior Court of Justice has granted leave pursuant to the Ontario Securities Act and has certified a global securities class action which permits a defined group of investors (the "Class") to pursue claims against Aphria Inc. and certain of its Officers and Directors ("AphriaDefendants"). It is alleged that the Aphria Defendants made material misrepresentations to the market about two significant international transactions during 2018 and that public disclosure about these acquisitions on December 3 and 4, 2018 caused the price of Aphria's common shares to fall substantially, resulting in investor losses. For additional important information see contact information below for Rochon Genova LLP. The certified class action is Vecchio Longo Consulting Services Inc. v. Aphria Inc. et al. Ontario Superior Court of Justice Court File No. CV-19-0061408600 CP (the "ClassAction"). It claims monetary damages on behalf of the Class. The allegations made in the Class Action have not been proven and are disputed by the Aphria Defendants. NOTE: Claims in this Action against Carl Merton were dismissed, on consent, without costs by Court Order on August 6, 2021 and claims against Clarus Securities Inc., Canaccord Genuity Corp., Cormark Securities Inc., Haywood Securities Inc. and Infor Financial Inc. were dismissed, on consent, without costs, by Court Order on August 18, 2022. Who is a Class Member? The Action has been certified on behalf of all persons or entities, wherever they may reside, who acquired Aphria common shares during the period of time after 07:00 ET January 29, 2018 until 08:25 ET December 3, 2018 ("Class Members"). This includes those individuals who acquired Aphria shares in the secondary market (that is, in usual course on the open market via a stock exchange like the TSX or the NYSE or an over the counter exchange), as well as those who acquired their shares by way of Aphria’s Prospectus Offering in June 2018. If you are an eligible Class Member and the Class Action is successful you may be entitled to share in any monetary award or settlement. If you wish to participate in the class action, DO NOTHING. As a Class Member, you will not be required to pay any costs in the event that the Class Action is unsuccessful. If the Class Action is successful at trial or if a settlement is reached, you may be entitled to share in any award or settlement. A notice would be provided to the Class providing details concerning the terms of the settlement or award and how eligible Class Members might make a claim for compensation. Class Members who DO NOT want to participate in the Action must opt out. If you do not wish to participate in the Class Action, and be bound by or receive any benefits from it, you must opt out by notifying RicePoint Administration Inc. [GN] ASCOLILLO INC: Underpays Delivery Drivers, Webber Suit Claims ------------------------------------------------------------- EMELINA WEBBER, individually and on behalf of all others similarly situated, Plaintiff v. ASCOLILLO, INC. and MARCO LOUIS ASCOLILLO, Defendants, Case No. 7:22-cv-07165 (S.D.N.Y., August 22, 2022) is a class action against the Defendants for unpaid overtime wages in violation of the Fair Labor Standards Act and unpaid minimum wages under the New York Labor Code. The Plaintiff was employed by the Defendants as a delivery driver from approximately May of 2021 until May of 2022. Ascolillo, Inc. is a company that owns and operates Papa John's franchises in New York. [BN] The Plaintiff is represented by: William Patrick Wilson, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy., Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: patrick@sanfordlawfirm.com AUTO BRAKES: Walker Files Suit in Cal. Super. Ct. ------------------------------------------------- A class action lawsuit has been filed against Auto Brakes, Inc., et al. The case is styled as Corey Walker, Individually and on Behalf of Others Similarly Situated v. Auto Brakes, Inc., Brake Masters of Sacramento, Inc., Case No. STK-CV-UOE-2022-0007517 (Cal. Super. Ct., San Joaquin Cty., Aug. 25, 2022). The case type is stated as "Unlimited Civil Other Employment." Auto Brakes, Inc. operates as an auto repair center.[BN] The Plaintiff is represented by: William J. Gorham, III, Esq. MAYALL HURLEY APC 2453 Grand Canal Blvd., Ste. 2 Stockton, CA 95207 Phone: 209-477-3833 Fax: 209-473-4818 AW WOODWORKING: Torreblanca Files FLSA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against AW Woodworking LLC, et al. The case is styled as Marco Torreblanca, individually and on behalf of others similarly situated v. AW Woodworking LLC, Adam Smolimski, an individual, Case No. 1:22-cv-05055 (E.D.N.Y., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. AW Woodworks -- https://www.awwoodworks.com/ -- crafts custom furniture using quality solid woods, beautiful veneers, and skillful metal work..[BN] The Plaintiff is represented by: Nolan Keith Klein, Esq. LAW OFFICES OF NOLAN KLEIN, P.A. 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Phone: (954) 745-0588 Email: klein@nklegal.com BAYER U.S.: District of New Jersey Dismisses Huertas Class Suit --------------------------------------------------------------- In the case, JUAN HUERTAS and EVA MISTRETTA, individually and on behalf of all others similarly situated, Plaintiffs v. BAYER U.S., LLC, Defendant, Civil Action No. 21-20021 (SDW)(CLW)(D.N.J.), Judge Susan D. Wigenton of the U.S. District Court for the District of New Jersey grants the Defendant's Motion to Dismiss the Plaintiffs' Class Action Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Bayer is a Delaware corporation, headquartered in Whippany, New Jersey. It manufactures Lotrimin and Tinactin sprays, which are "anti-fungal drug products regulated by the United States Food & Drug Administration ("FDA"), pursuant to the federal Food, Drug, and Cosmetics Act ("FDCA")," and sells them throughout the United States. Lotrimin is the brand name for Clotrimazole, an antifungal spray or cream that treats various skin infections. Tinactin is the brand name for Tolnaftate, an antifungal spray or cream that treats athlete's foot or ringworm. On Oct. 1, 2021, Bayer announced a voluntary recall of the Products, specifically recalling unexpired "spray products with lot numbers beginning with TN, CV, or NAA, distributed between September 2018 to September 2021," because of "the presence of benzene in some samples of the products." It required consumers seeking a refund to "submit proof of purchase" and "submit a picture of the product." It also advised consumers not to use the Products and confirmed that "benzene is not an ingredient in any of Bayer Consumer Health products." The level of benzene detected in the affected samples is unknown. In August 2021, Huertas, a resident of Levittown, New York, "purchased a canister of the Defendant's Lotrimin Antifungal (AF) Athlete's Foot Deodorant Powder Spray" with an impacted lot number, from a CVS in New York. He reviewed the Product's labels and disclosures, and "used the spray to treat fungal infections on his skin." but did not know the Product contained benzene. He did not learn of the recall before using the product. On July 2021, Mistretta, a resident of East Elmhurst, New York, "purchased a canister of the Defendant's Tinactin Athlete's Foot Liquid Spray" with an impacted lot number, from a Walgreens in New York. She reviewed the Product's labels and disclosures, and "used the Tinactin to treat fungal infections on her skin," but did not know the Product contained benzene. She did not learn of the recall prior to using the product. The Plaintiffs assert that benzene is "carcinogenic to humans," and that "there is probably no safe level of exposure to benzene." They further contend that "the presence of benzene in the Products renders them adulterated and misbranded," "the presence of benzene in the Defendants Products appears to be the result of contamination," and "any significant detection of benzene in such products is unacceptable." As a result of using the products, they maintain, the both "suffered cellular and genetic injury that creates and/or increases the risk that they will each develop cancer." They also submit that they and class members "were injured by losing the full purchase price of the Products because the Products are worthless, as they are adulterated and contain harmful levels of benzene," and they and class members were injured by "being exposed to high levels of acutely-toxic benzene." Finally, the Plaintiffs seek to represent four potential classes, including (1) a nationwide class of consumers who purchased specific Lotrimin spray products at issue; (2) a nationwide class of consumers who purchased specific Tinactin spray products at issue; (3) a subclass of consumers who purchased the Lotrimin spray products in New York; and (4) a subclass of consumers who purchased the Tinactin spray products in New York. On Nov. 16, 2021, the Plaintiffs filed a putative class action suit in the Court, asserting the following claims: Breach of Express Warranty (Count I); Breach of Implied Warranty (Count II); Violation of New York General Business Law Section 349 (Count III); Violation of New York General Business Law Section 350 (Count IV); Fraud (Count V); and Unjust Enrichment (Count VI). The Defendant filed a Motion to Dismiss on Jan. 24, 2022, and the parties completed timely briefing. It submitted supplemental authority to the Court on April 29, 2022, and on July 21, 2022. The Plaintiffs did not respond to the Defendant's submissions. Before addressing whether the Plaintiffs' claims are well pleaded, Judge Wigenton must first consider whether the Plaintiffs have standing to pursue the claims. The Plaintiffs allege two separate injuries: Economic harm due to the loss of the purchase price of the Products, and physical injury from exposure to benzene via use of the Products. The Defendant's challenge to each injury rests squarely on "the 'first and foremost' of the three standing elements, injury in fact." After assessing the Plaintiffs' allegations of economic harm and physical injury, Judge Wigenton finds that the Plaintiffs neither have standing to pursue claims for economic injury related to the loss of the purchase price of the products, nor have standing to pursue claims for physical injury. The Plaintiffs allege that they each suffered economic harm by losing "the full purchase price of the Products because the Products are worthless, as they are adulterated and contain harmful levels of benzene." The Defendant counters that the Plaintiffs cannot establish standing because they could have recouped the amount they paid for the Products, but instead did not accept the Defendant's offer of a refund, and, further, they fail to allege that the products did not work as advertised. While the Plaintiffs' Complaint clears that minimal hurdle, Judge Wigenton finds that it does not sufficiently allege facts that support the conclusion that they suffered economic loss from the Products. The Plaintiffs' Complaint does not discuss the actual FDA guidelines or note the specific, acceptable amount of benzene in the given type of product. Further, the Complaint does not allege the specific level of benzene in the impacted Products. They further neither allege that they had to stop taking the Products and purchase replacement alternative products, nor allege even throwing the remainder of the Products away, or whether any amount of the Products even remained after use. Thus, Judge Wigenton opines that the Plaintiffs have not demonstrated cognizable economic harm, and their allegation of the "worthless" Products amounts to speculative loss. Viewing the allegations in a light most favorable to the Plaintiffs, the facts are not well pleaded and, therefore, they have not established standing due to a cognizable economic injury. Because the Plaintiffs have not established the first element of standing relating to injury-in-fact, analyses of the causal connection between injury and conduct and the redressability of injury are unnecessary. The Plaintiffs' allegations of physical injury boil down to specific claims in the Complaint that they "suffered cellular and genetic injury that creates and/or increase the risk that they will develop cancer." While the Plaintiffs allege that they have "suffered cellular and genetic injury," Judge Wigenton opines that they give no indication of how that injury came to be, what that injury entails, or how the purported injury does anything other than present a future "risk that they will develop cancer." They give a conclusory allegation that they have suffered cellular and genetic injuries that increase risk of cancer, but do not give any basis for the allegation, do not show how those injuries have occurred, and do not demonstrate that the risk of actual harm is anything other than mere speculation. As such, they have not demonstrated concrete injuries that actually exist, and rather rely on the risk of future harm. The Plaintiffs, therefore, have not established standing due to physical injury. Because they have not established the first element of standing relating to injury-in-fact, analyses of the causal connection between injury and conduct and the redressability of injury are unnecessary. Further, because the Plaintiffs have not demonstrated standing, Judge Wigenton cannot address the merits of their claims. For the reasons she set forth, Judge Wigenton grants the Defendant's Motion to Dismiss. The Plaintiffs will have 30 days to file an amended complaint. An appropriate order follows. A full-text copy of the Court's Aug. 19, 2022 Opinion is available at https://tinyurl.com/4s34bfuu from Leagle.com. BETTER WORLD FRAGRANCE: Slade Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Better World Fragrance House, LLC. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Better World Fragrance House, LLC, Case No. 1:22-cv-07265 (S.D.N.Y., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Better World Fragrance House -- https://www.betterworldfragrancehouse.co/ -- is a candle collection offering nostalgic and addictive fragrance with subtleties of comfort and goodness.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com BI-RITE RESTAURANT: Underpays Sales Representatives, Guiffre Says ----------------------------------------------------------------- The case, JAMES GUIFFRE, as an individual and on behalf of all others similarly situated, Plaintiff v. BI-RITE RESTAURANT SUPPLY CO., INC., a California corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 22CV402169 (Cal. Sup. Ct., August 19, 2022) arises from the Defendant's alleged illegal employment practices that violated the California Labor Code. The Plaintiff has begun working for the Defendant on or about April 2018 until on or about October 1, 2021 as a Sales Representative and serviced accounts for the Defendants' clients in multiple locations, including in the Country of Santa Clara. The Plaintiff alleges that the Defendants suffered and permitted him and other similarly situated Sales Representatives to work without payment of overtime wages for all hours worked in excess of 40 hours per workweek. Specifically, the Defendants paid them on a commissioned and/or piece-rate basis, such that they were paid for non-productive time, including time spent attending work meetings and/or rest periods. The Plaintiff also claims that they regularly worked shifts of 3.5 hours or more per day. Therefore, they had a right to take a paid 10-minute duty-free rest period each day worked in any such shifts. However, they were not provided with "paid" rest breaks since the Defendants paid them on a commissioned and/or piece-rate basis. As a result, despite working more than 40 hours per week, the Defendants failed to pay them overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek. The Plaintiff also alleges that the Defendant willfully failed to pay all wages due and owing to him and other similarly situated Sales Representatives upon separation from employment, says the Plaintiff. The Plaintiff brings this complaint as a class action against the Defendant seeking to recover all the damages and/or penalties, for himself and all other similarly situated Sales Representatives, as well as interest, attorneys' fees and costs, and other relief that the Court may deem just and proper. Bi-Rite Restaurant Supply Co., Inc. sells and delivers food and supplies to restaurants in the State of California. [BN] The Plaintiff is represented by: Larry W. Lee, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Tel: (213) 488-6555 Fax: (213) 488-6554 - and – Dennis S. HyuN, Esq. HYUN LEGAL, APC 515 s. Figueroa St., Suite 1250 Los Angeles, CA 90071 Tel: (213) 488-6555 Fax: (213) 488-6554 - and – Edward W. Choi, Esq. LAW OFFICES OF CHOI & ASSOCIATES, APLC 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90010 Tel: (213) 381-1515 Fax: (213) 465-4885 BLUE LOBSTER: Toro Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against The Blue Lobster LLC. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. The Blue Lobster LLC, Case No. 1:22-cv-07261 (S.D.N.Y., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Blue Lobster -- https://www.thebluelobster.com/ -- is a family owned restaurant that has been serving their signature seafood for over 20 years.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com BOB DEAN: Preliminary Settlement Reached in Nursing Home Suit ------------------------------------------------------------- Brooke Thorington at louisianaradionetwork.com reports that a preliminary settlement has been reached in the class-action lawsuit against Bob Dean over the evacuation of more than 800 nursing home patients to a warehouse last year during Hurricane Ida. Blair Constant, one of the attorneys representing patients, said a trial date of October 3rd has been set. "So, the settlement we're talking about involves all the insurance proceeds, for Bob Dean's companies, it's going to be between $12 and $15-million to be determined by the court," said Constant. Which equates to approximately $17- thousand for each patient. The class-action lawsuit is seeking restitution for the 843 nursing home residents who experienced deplorable conditions at the Tangipahoa warehouse after the category 4 storm made landfall a year ago Monday. Constant said reaching a settlement in such a short time frame is rare. "And our clients could not be happier, could not be more thrilled that they're getting their piece of justice now, instead of three to five years from now," said Constant. Family members of some of the nursing home patients appeared at a news conference Thursday and while many said no amount of money can make up for the suffering caused by Dean, Constant said they hope this keeps others from suffering in the future. "As excited and as thrilled and satisfied as they are with this settlement, they're as equally hopeful that this will not happen again," said Constant. Dean has since lost his nursing home licenses and is also facing other civil and criminal lawsuits. [GN] BOSE CORPORATION: Hollings Suit Removed to N.D. Illinois -------------------------------------------------------- The case styled as Jared Hollings, Edrena Bell, individually and on behalf of all others similarly situated v. Bose Corporation, Case No. 2022-CH-05524 was removed from the Circuit Court of Cook County, IL, to the U.S. District Court for the Northern District of Illinois on Aug. 11, 2022. The District Court Clerk assigned Case No. 1:22-cv-04250 to the proceeding. The nature of suit is stated as Other P.I. for Personal Injury. Bose Corporation -- https://www.bose.com/ -- is an American manufacturing company that predominantly sells audio equipment.[BN] The Plaintiffs are represented by: Brandon Michael Wise, Esq. PEIFFER WOLF CARR KANE CONWAY & WISE LLP 818 Lafayette Ave., Floor 2 St. Louis, MO 63104 Phone: (314) 833-4825 Email: bwise@peifferwolf.com - and - Adam John Florek, Esq. PEIFFER WOLF CARR KANE & CONWAY, APLC 5th Floor 73 West Monroe Street Chicago, il 60603 Phone: (973) 476-5650 Email: aflorek@peifferwolf.com - and - Andrew Shamis, Esq. SHAMIS & GENTILE, P.A. 14 Ne 1st Ave, Suite 1205 Miami, FL 33132 Phone: (305) 479-2299 Email: ashamis@shamisgentile.com - and - Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (866) 252-0878 Email: gklinger@milberg.com - and - Nick Suciu, III, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 6905 Telegraph Rd., Suite 115 Bloomfield Hills, MI 48302 Phone: (313) 303-3472 Email: nsuciu@milberg.com The Defendant is represented by: Jeffrey N. Rosenthal, Esq. BLANK ROME LLP One Logan Square 130 N. 18th Street Philadelphia, PA 19103 Phone: (215) 569-5553 Fax: (215) 832-5553 Email: jeffrey.rosenthal@blankrome.com - and - Amanda Marie Noonan, Esq. BLANK ROME LLP 444 W. Lake Street, Suite 1650 Chicago, IL 60606 Phone: (312) 776-2537 Email: Amanda.Noonan@BlankRome.com BOW PLUMBING: Filing of Class Status Bids Extended to Jan. 20, 2023 ------------------------------------------------------------------- In the class action lawsuit captioned as ROSELYN BRASWELL v. BOW PLUMBING GROUP, INC., Case No. 2:21-cv-00025-ECM-KFP (M.D. Ala.), the Hon. Judge Emily C. Marks entered an order regarding an unopposed motion filed by the Plaintiff to extend all dates and deadlines in this case, as follows: 1. The motion is granting to the extent that: -- the deadline for the Plaintiff's expert disclosures on class certification is extended from August 15, 2022 to October 14, 2022; -- the deadline for the Defendant's expert disclosures on class certification is extended from October 3, 2022 to December 5, 2022; and -- the deadline for class certification motions is extended from November 14, 2022 to January 20, 2023. 2. The motion is denied to the extent that it requests that other deadlines be held in abeyance. This denial is without prejudice to a later motion seeking an extension of deadlines to particular dates which are consistent with the trial term during which the case is set, or a future trial term of the undersigned. BOW manufactures plumbing products. The Company offers plastic pipe, fittings, drainage, and pressure plumbing products. A copy of the Court's order dated Aug. 8, 2022 is available from PacerMonitor.com at https://bit.ly/3TvYRjV at no extra charge.[CC] BP EXPLORATION: Riddell-Hare's Claims Dismissed With Prejudice -------------------------------------------------------------- In the case, TERESA LYNN RIDDELL-HARE v. BP EXPLORATION & PRODUCTION, INC., ET AL, SECTION "R" (2), Civil Action No. 17-4177 (E.D. La.), Judge Sarah S. Vance of the U.S. District Court for the Eastern District of Louisiana grants 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 their motion for summary judgment. The case arises from the Plaintiff's alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. The Plaintiff alleges that she performed cleanup work after the Deepwater Horizon oil spill beginning on April 20, 2010. She asserts that, as part of this work, she was exposed to crude oil and chemical dispersants. She also represents that this exposure has resulted in a rash. Ms. Riddell-Hare's case was originally part of the multidistrict litigation ("MDL") pending before Judge Carl J. Barbier. Her 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. She is a plaintiff who opted out of the settlement. After her 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 plaintiff alleges in her complaint, she offers the testimony of Dr. Cook, an occupational and environmental physician. Dr. Cook is the Plaintiff's sole expert offering an opinion on general causation. In his March 14, 2022 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." He 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, bronchitis, asthma, reactive airway disease, dermatitis, skin irritation, skin rash, skin itching, acute conjunctivitis, chronic conjunctivitis, and dry eye disease. The BP parties contend that Dr. Cook's expert report should be excluded, arguing that it is unreliable and unhelpful. They also move for summary judgment, asserting that if Dr. Cook's general causation opinion is excluded, the Plaintiff is unable to carry her burden on causation. The Plaintiff opposes both motions. 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 the Plaintiff alleges, she offers the testimony of an environmental toxicologist, Dr. Cook. Based on Dr. Cook's report, the Defendants argue that the Plaintiff 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 Riddell-Hare'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 the Plaintiff's alleged medical conditions. They Defendants further argue that even if Dr. Cook's report were reliable, it is unhelpful because it addresses few of the Plaintiff's medical complaints, and fails to specify which particular toxins can cause which particular conditions. They also note that several courts, including the Court, have excluded various versions of Dr. Cook's report for similar reasons. Judge Vance finds that 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. Because Dr. Cook has not identified the harmful level of exposure to the chemicals that the Plaintiff was allegedly exposed to that can cause the conditions she alleges, Dr. Cook's report is unreliable, lacks sufficient factual support, and cannot establish general causation. 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. His opinion is unhelpful because of his inability to link any specific chemical that the Plaintiff was allegedly exposed to, at the level to which she was exposed, to the conditions that she alleges in her complaint. He makes no attempt to identify which chemicals within crude oil Riddell-Hare was allegedly exposed to, or what amounts of these chemicals can cause harm to humans. Judge Vance concludes holds that 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, she grants the Defendants' motion to exclude Dr. Cook's testimony. For these reasons, she grants the BP parties' motion to exclude the testimony of Dr. Cook. 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. Accordingly, she grants the Defendants' motion for summary judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's Aug. 17, 2022 Order & Reasons is available at https://tinyurl.com/mvfxpwap from Leagle.com. BRYAN COLLIER: Court Tosses Lumsden Bid to Certify Class Action --------------------------------------------------------------- In the class action lawsuit captioned as RAYMOND E. LUMSDEN, No. 2109472 v. BRYAN COLLIER, et al., Case No. 6:22-cv-00822-ADA (W.D. Tex.), the Hon. Judge Alan D. Albright entered an order denying the Plaintiff's motion for appointment of counsel and to certify class action. The Court said, "The Plaintiff, proceeding pro se , has not established that he will adequately and fairly represent the interests of absent class members. Having determined Plaintiff has not demonstrated that each prong of Rule 23(a) is met, the Court need not reach the question of whether or not Rule 23(b) is met." A copy of the Court's order dated Aug. 9, 2022 is available from PacerMonitor.com at https://bit.ly/3PVQM4P at no extra charge.[CC] CAL CENTRAL: California District Court Narrows Claims in Mayen Suit ------------------------------------------------------------------- In the case, JULIO MAYEN, individually on his own behalf and on behalf of all others similarly situated, Plaintiff v. CAL CENTRAL HARVESTING, INC., and DOES 1-100 inclusive, Defendants, Case No. 1:21-CV-0145 AWI JLT (E.D. Cal.), Judge Anthony W. Ishii of the U.S. District Court for the Eastern District of California grants in part and denies in part the Defendant's Rule 12(b)(6) motion to dismiss. The lawsuit is a putative class action brought by Mayen against his former employer Cal Central Harvesting, Inc. ("CCH"). Following an order on a Rule 12(c) motion by CCH, the operative complaint is the First Amended Complaint ("FAC"). Mayen alleges seven violations of the California Labor Code, violation of Cal. Bus. & Prof. Code Section 17200 for unfair competition ("the UCL"), and violation of 29 U.S.C. Section 1801 et. seq. the Agricultural Worker Protection Act ("AWPA"). Mr. Mayen is an individual who resides in Kern County, California and is a seasonal agricultural worker within the meaning of the AWPA. He was employed by CCH, who is a farm labor contractor who provides agricultural employees to various agricultural businesses and farms throughout Kern County. Mayen and the Class enter into working arrangements with CCH each agricultural season. The working arrangements include the understanding that CCH would pay Mayen and the Class either an hourly rate or a piece rate, depending on the work being performed. The arrangements required CCH to pay Mayen and the Class their agreed upon wages for all hours worked or pieces performed, for required rest periods, to abide by applicate California Industrial Welfare Commission Wage Orders, and to provide itemized wage statements. However, Mayen and the Class routinely worked seven days a week and more than 10 hours in a workday, but were not compensated for any hours worked in excess of ten hours or paid premium wages for the sixth and seventh workdays. They routinely worked more than 10 hours in a workday. They would average 55 hours worked per week, depending on the week, and when paid by the hour, pay rate would be $11 per hour (when paid on a piece rate, the amount would vary). CCH's practice and policy was to not compensate Mayen and the Class for hours worked in excess of ten in a workday. On an average 55 hour work week, Mayen and the Class were entitled to be paid $247.50 in overtime. It also did not permit the Class to take full 10 minute rest periods or full 30 minute meal periods, but instead required the Class to remain at the workplace and to take as short a break as possible. Further, when paid by a piece rate, CCH did not compensate Mayen and the Class or account for rest periods. CCH also required that Mayen and the Class purchase their own tools which were indispensable for performing the work, yet CCH never issued reimbursements for the tools. It also required them to travel between fields in their own vehicles, sometimes as often as three times per day, with a 10 to 15 minute travel time. However, CCH did not record or pay for travel time between fields or reimburse Mayen and the Class for using their own vehicles. Finally, when either the harvest season ended or an employee quit or was discharged before the season ended, it did not timely pay all wages owed. From these allegations, Mayen on behalf of himself and the putative Class alleges the following causes of action: (1) failure to pay overtime (hours worked in excess of 10 per day, and days worked on the sixth and seventh workdays) in violation 8 Cal. Code Regs. Section 11140(3)(A) and Labor Code Section 1194; (2) failure to pay minimum wages in violation of Labor Code Section 1197 and Wage Order 14; (3) failure to provide an itemized wage statement in violation of Labor Code Section 226(a); (4) failure to timely pay wages upon termination or resignation in violation of Labor Code Sections 201(a) and 202(a); (5) failure to provide rest breaks in violation of Labor Code Section 226.7; (6) failure to pay for unprovided meal breaks in violation of Labor Code Section 512; (7) failure to reimburse for expenses reasonably incurred in violation of Labor Code Section 2802 and 29 U.S.C. Section 1832(c); (8) violating the AWPA by failing to pay wages due, post a notice setting for rights and protections, and violating the terms of working arrangements; and (9) unfair competition under the UCL. Currently before the Court is the Defendant's Rule 12(b)(6) motion to dismiss. It argues that the first, fourth, fifth, sixth, seventh, eighth, and ninth causes of action should be dismissed. As to the first cause of action, it argues that the FAC continues to include vague and conclusory allegations and that the new factual allegations do not support a plausible claim. As to the fourth cause of action for waiting time penalties due to failing to pay wages upon termination or resignation, the claim is too conclusory. As to the fifth cause of action for rest period violations, the FAC merely recites the relevant statutory language and that CCH would require Mayen and the class to take as short a break as possible, typically lasting only a few minutes to go to the bathroom or other brief activity. As to the sixth cause of action for failing to provide meal periods, CCH argues that the FAC merely recites the relevant statutory language and then alleges that it would require Mayen and the class to eat as quickly as possible, prohibited them from leaving the work area, and the period would last about 10 minutes. As to the seventh cause of action for failing to reimburse expenses reasonably incurred, the FAC merely recites the relevant statutory language and then alleges that Mayen and the class were required to provide their own protective equipment and hand tools, the cost of which varied and are subject to proof. As to the eighth cause of action for violations of AWPA, the Court previously dismissed claims based on AWPA's posting requirement (Section 1831(b)) because there was only a bare allegation. As to the ninth cause of action for violation of the UCL, as a derivative claim, any claim that is dismissed as inadequately pled cannot support a UCL claim. Finally, CCH argues that because the Court already granted leave to amend a prior time, dismissal of the above claims should be without leave to amend. Mr. Mayen argues that, with limited exception, the FAC alleges plausible claims. As to the first cause of action, Mayen argues that that the FAC alleges that he worked more than 10 hours per day and regularly worked seven days a week, yet he received no overtime. As to the fourth cause of action, he argues that the FAC sufficiently alleges a plausible claim for wait time violations. As to the fifth and sixth causes of action, the FAC alleges that CCH failed and refused to authorize or permit the class to take 10 minute rest periods for every four hours worked. As to the seventh cause of action, the FAC alleges that the class was required to provide their own tools and protective gear that were necessary to the performance of the work required of them and to travel in their own vehicles between fields. As to the eighth cause of action, Mayen acknowledges that he did not include additional factual allegations with respect to Section 1831(b) and requests leave to amend. Finally, as to the UCL, because the FAC properly alleges various causes of action, those causes of action form a basis for valid UCL claims. Judge Ishii finds that (i) Mayen's allegations as to the first cause, combined with the changes that he himself requests leave to make, should result in a plausible claim; (ii) dismissal of the fourth cause of action is inappropriate as allegations are not unduly conclusory and they support a plausible claim for wait time penalties; (iii) dismissal of the fifth cause of action is inappropriate because paragraph 67 of the FAC is sufficient for the Court to infer a standing policy against providing the Class with legally compliant rest periods because it only permitted short breaks that typically lasted just a few minutes to use the restroom or the like; and (iv) dismissal of the sixth cause of action is inappropriate as paragraph 71 of the FAC is sufficient for the Court to infer a standing policy against providing the Class with legally compliant meal periods because it only permitted short breaks that typically lasted 10 minutes and limited the employees to staying at their work area. Judge Ishii further finds that (i) dismissal with leave to amend of the reimbursement claim based on the Class's "equipment expenditures" is appropriate because the allegations are too vague and conclusory for the Court to conclude that there were concrete instances of CCH failing to reimburse the Class for the purchase of necessary equipment; (ii) because Mayen has improved his allegations regarding the AWPA claim, and because it is not clear that permitting further amendment would be futile, dismissal will be without prejudice; and (iii) in the absence of an opposition, he dismisses Mayen's demand for injunctive relief due to a lack of standing. Accordingly, Judge Ishii grants in part the Defendant's motion to dismiss. The first cause of action, seventh cause of action based on equipment expenditures, the eight cause of action based on violations of 29 U.S.C. Section 1831(b) and 29 U.S.C. Section 1832(c) (but only to the extent that the violation is based on Labor Code Section 226), and the claims in the ninth cause of for injunctive relief and that are based on other dismissed causes of action, are all dismissed. Judge Ishii otherwise denies the Defendant's motion to dismiss. Within 28 days of service of the Order, the Plaintiff may file an amended complaint that is consistent with the analysis of the Order. If he fails to timely file an amended complaint, then leave to amend will be automatically withdrawn without further notice and the Defendant will file an answer within 42 days of service of the Order. A full-text copy of the Court's Aug. 19, 2022 Order is available at https://tinyurl.com/bdjbw2ba from Leagle.com. CALIFORNIA: 9th Cir. Partly Affirms Dismissal of Martinez v. Newsom ------------------------------------------------------------------- In the case, Danielle Howard Martinez; D. P., a minor, by his Guardian ad Litem Erica Wedlow; K. P., a minor, by his Guardian ad Litem Brittany Williams; T. W., a minor by his Guardian ad Litem Dahl Johnson; P. C., a minor by her Guardian ad Litem Raven Campbell; LASHONDA HUBBARD; AMBER WOOD, Plaintiffs-Appellants v. GAVIN NEWSOM, Governor, et al., Defendants-Appellees, Case No. 20-56404 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms in part and vacates in part the district court's order dismissing the Plaintiffs' claims against all Defendants for failure to exhaust, denying them leave to amend, and dismissing the case. A group of students and parents allege that every school district in California failed to adequately accommodate special needs students after California public schools transitioned to remote instruction in March 2020 in response to the COVID-19 pandemic. To address the Appellants' claims, the Ninth Circuit examines whether the Plaintiffs were required to exhaust administrative remedies pursuant to the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. Section 1400 et seq., before filing their lawsuit. The Plaintiffs are four students enrolled in the Etiwanda and Chaffey Joint Union High School Districts as well as their parents. They allege that when California public schools transitioned to remote instruction in March 2020, every school district in the state failed to determine "what changes needed to be made to special needs students' individualized education programs ('IEP') to account for the differences in distance learning compared to in-person instruction." They allege that their IEPs were not updated to account for remote instruction, they were not offered sufficient accommodations after the transition, and they were denied a free and appropriate public education (FAPE) during the time they were receiving remote instruction. The Plaintiffs filed a putative class action lawsuit on behalf of "all special needs students and their parents in California." They sued hundreds of defendants, including, but not limited to: (1) the California Department of Education (CDE); (2) California Superintendent of Public Instruction Tony Thurmond; (3) every school district in the state of California; and (4) the California School for the Deaf, the California School for the Blind, and the Diagnostic Centers of California (the State Special Schools). Their claims against the school districts are straightforward: They allege that the districts failed to adequately accommodate special needs students after the transition to remote instruction, thereby denying them -- and every other special needs student in the state -- a FAPE. Their claims against the CDE and Superintendent Thurmond are more complicated. During the transition to remote instruction, the CDE issued guidance that encouraged the school districts to "work with each family to determine what a FAPE looks like during COVID-19," "ensure children with disabilities are included in all offerings of school education models by using the IEP process," and "use the annual IEP to plan for a traditional school year and while not required, it is suggested LEAs include distance learning plans or addendums to address distance learning needs during immediate or future school site closures." The Plaintiffs allege that because this guidance "encouraged, but did not require, the state's school districts" to take these measures, the CDE and Superintendent Thurmond either dissuaded or prohibited school districts from updating special needs students' IEPs and from offering adequate accommodations. At oral argument, they characterized this guidance as "a policy of inaction" and "a blanket decision not to act." The Plaintiffs allege that the Defendants violated the IDEA and the Fourteenth Amendment, and seek declaratory and injunctive relief. Specifically, they request (1) a declaration that the Defendants violated the IDEA, (2) an injunction requiring them "to immediately reassess special needs students assigned to engage in distance learning" or return them to in-person instruction, and (3) an injunction ordering them to provide special needs students with various educational services "until such time as appropriate accommodations are made or they are returned to in-person instruction." They also request "compensatory education" from the school districts to make up "for special needs students' loss of a basic minimum education." After some Defendants moved to dismiss, the district court dismissed the Plaintiffs' claims against all Defendants for failure to exhaust, denied them leave to amend, and dismissed the case. The Plaintiffs timely appealed. The Ninth Circuit reviews de novo whether the IDEA requires exhaustion in these circumstances. Initially, the Ninth Circuit opines that the Plaintiffs do not allege that the districts in which they are not enrolled or the State Special Schools, which they do not attend, have injured them personally. Therefore, the Plaintiffs lack standing to sue those defendants in federal court. Moreover, the CDE offered suggestions about how to accommodate special needs students during remote instruction, but ultimately left each district with discretion to decide how to do so. It did not set forth a "common rule" every district was required to follow. Therefore, the Plaintiffs' claims against the State Special Schools and the school districts in which they are not enrolled do not fall within the juridical link doctrine, and the Plaintiffs lack standing to pursue their claims against these defendants in federal court even if the juridical link doctrine were to exempt them from ordinary principles of Article III standing. The Ninth Circuit now addresses whether any of the Plaintiffs' claims are moot. The Plaintiffs filed the lawsuit in August 2020, when most California public schools were holding classes remotely due to the COVID-19 pandemic. Since then, the California public schools have returned to in-person instruction. Accordingly, the Ninth Circuit next addresses how the return to in-person instruction affects the Plaintiffs' claims. The Plaintiffs do not contest that their other requests for injunctive relief, such as their request for a return to in-person instruction, are moot. The Ninth Circuit agrees that the Plaintiffs' request for compensatory education means that some of their claims are not moot. Therefore, it next considers whether the Plaintiffs' claims against the CDE and Superintendent Thurmond are moot. The Ninth Circuit holds that the Plaintiffs' claims against the CDE and Superintendent Thurmond are moot, as are their claims against the other defendants seeking injunctions requiring a return to in-person instruction or reassessment and services until students return to in-person instruction. Accordingly, the Plaintiffs' claims against the school districts in which they are enrolled seeking compensatory education, a declaratory judgment, and attorneys' fees and costs survive. Turning to the Plaintiffs' only remaining claims: Those against the Etiwanda and Chaffey Joint Union High School Districts, the Ninth Circuit finds that (i) the Plaintiffs' attempts to reframe the systemic exception claim as a policy or practice of not complying with the IDEA does not allow them to evade the exhaustion requirement; (ii) because the Plaintiffs seek relief for the denial of a FAPE, they are required to exhaust administrative remedies, even though some of their claims are based on the Fourteenth Amendment; (iii) the mere fact the complaint is structured as a class action seeking injunctive relief, without more, does not excuse exhaustion; (iv) it expresses no opinion regarding whether this named plaintiff's attempt to exhaust would satisfy the futility exception to IDEA's exhaustion requirement if it were properly presented; (v) the Plaintiffs did not assert a claim based on an alleged breach of a settlement agreement, and it declines to issue an advisory opinion regarding whether such a claim must be exhausted. For these reasons, the Ninth Circuit concludes that the district court lacked jurisdiction to resolve the Plaintiffs' claims against the school districts in which they are not enrolled and the State Special Schools, which they do not attend. It therefore vacates the district court's judgment dismissing those claims on the merits and remands with instructions to dismiss them for lack of subject-matter jurisdiction. Further, in light of the California public schools' return to in-person instruction, the Plaintiffs' claims against the CDE and Superintendent Thurmond are moot. The Ninth Circuit therefore vacates the district court's judgment and remands with instructions to dismiss the Plaintiffs' claims against those Defendants. Finally, it affirms the district court's dismissal of the Plaintiffs' claims against the Etiwanda and Chaffey Joint Union High School Districts for failure to exhaust administrative remedies. The other Defendants-Appellees are STATE OF CALIFORNIA; CALIFORNIA STATE BOARD OF EDUCATION; CALIFORNIA DEPARTMENT OF PUBLIC HEALTH; CALIFORNIA HEALTH AND HUMAN SERVICES; SANDRA SHEWRY, State Public Health Officer and Department of Public Health Director; CALIFORNIA DEPARTMENT OF EDUCATION; TONY THURMOND, State Superintendent of Public Education; CALIFORNIA SCHOOL THE DEAF, Fremont and Riverside; CALIFORNIA SCHOOL FOR THE BLIND DIAGNOSTIC CENTER, Northern California, Central California Southern California; FREMONT UNIFIED SCHOOL DISTRICT; OAKLAND UNIFIED SCHOOL DISTRICT; MT. DIABLO UNIFIED SCHOOL DISTRICT; SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT; WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT; CUPERTINO UNION SCHOOL DISTRICT; HAYWARD UNIFIED SCHOOL DISTRICT; JUAN UNIFIED SCHOOL DISTRICT; SBE LATITUDE 37.8 HIGH SCHOOL; LONG BEACH UNIFIED SCHOOL DISTRICT; SOUTH PASADENA UNIFIED SCHOOL DISTRICT; CAPISTRANO UNIFIED SCHOOL DISTRICT; SANTA ANA UNIFIED SCHOOL DISTRICT; RIVERSIDE UNIFIED SCHOOL DISTRICT; CHAFFEY JOINT UNION HIGH SCHOOL DISTRICT; MILPITAS UNIFIED SCHOOL DISTRICT; GARDEN GROVE UNIFIED SCHOOL DISTRICT; IRVINE UNIFIED SCHOOL DISTRICT; CORONA-NORCO UNIFIED SCHOOL DISTRICT; MORENO VALLEY UNIFIED SCHOOL DISTRICT; ETIWANDA ELEMENTARY SCHOOL DISTRICT; SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT; SAN FRANCISCO UNIFIED SCHOOL DISTRICT; ANGELES UNIFIED SCHOOL DISTRICT; SAN JOSE UNIFIED SCHOOL DISTRICT; and SBC-HIGH TECH HIGH SCHOOL DISTRICT. A full-text copy of the Court's Aug. 17, 2022 Opinion is available at https://tinyurl.com/2v9fed9m from Leagle.com. Maxwell V. Pritt -- mpritt@bsfllp.com -- (argued) and Erica Nyborg-Burch -- enyborg-burch@bsfllp.com -- (argued), Boies Schiller Flexner LLP, in San Francisco, California; Diana Renteria, Law Offices of Sheila C. Bayne, in Newport Beach, California; for the Plaintiffs-Appellants. Len Garfinkel (argued), Deputy General Counsel; Amy Bisson Holloway, General Counsel; California Department of Education, in Sacramento, California; for Defendants-Appellees California Department of Education, Tony Thurmond, California School for the Deaf, and California School for the Blind Diagnostic Center. S. Daniel Harbottle (argued), Sydney J. Blaauw, and Tracy Petznick Johnson, Harbottle Law Group, in Irvine, California, for Defendants-Appellees Corona-Norco Unified School District, Garden Grove Unified School District, Irvine Unified School District, and Moreno Valley Unified School District. Marlon C. Wadlington -- mwadlington@aalrr.com -- (argued), Scott D. Danforth -- sdanforth@aalrr.com -- and Kristin M. Meyers -- kmyers@aalrr.com -- Atkinson Andelson Loya Ruud & Roma, in Cerritos, California, for Defendants-Appellees Chaffey Joint Union High School District, Capistrano Unified School District, Long Beach Unified School District, Riverside Unified School District, Santa Ana Unified School District, South Pasadena Unified School District, and Milpitas Unified School District. Kirin K. Gill, Deputy Attorney General, Rob Bonta, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees Gavin Newsom, State of California, California State Board of Education, California Department of Public Health, California Health and Human Services, and Sandra Shewry. Seth Gordon -- sgordon@leonealberts.com -- and Louis Leone -- lleone@leonealberts.com -- Leone Alberts & Duus APC, Concord, California, for Defendants-Appellants Fremont Unified School District, Oakland Unified School District, Mt. Diablo Unified School District, San Ramon Valley Unified School District, West Contra Costa Unified School District, and Cupertino Union School District. Lynn A. Garcia and Domenic D. Spinelli, Spinelli Donald & Nott, Sacramento, California, for Defendants-Appellees Hayward Unified School District and San Juan Unified School District. Katherine C. Den Bleyker -- Katherine.DenBleyker@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, California, for SBE Latitude 37.8 High School. Edward Kang -- ekang@omlolaw.com -- and Thomas Madruga, Olivarez Madruga Law Organization LLP, Los Angeles, California, for Defendants-Appellees Etiwanda Elementary School District and San Bernardino City Unified School District. Mark Saul Posard -- mposard@grsm.com -- Gordon Rees LLP, in San Francisco, California, for Defendant-Appellee San Francisco Unified School District. Sue Ann Evans -- sevans@dwkesq.com -- Managing Senior Counsel, Dannis Woliver Kelley, Long Beach, California, for Defendants-Appellees Los Angeles Unified School District and San Jose Unified School District Kevin S. Wattles -- kwattles@slfesq.com -- Soltman Levitt Flaherty & Wattles LLP, in Thousand Oaks, California, for Defendant-Appellee SBC - High Tech High School District. CALIFORNIA: Bid to Proceed Under Pseudonyms in D.B. Suit Granted ---------------------------------------------------------------- In the case, D.B. as conservator for JOHN DOE 1; C.C. as guardian for JANE DOE 1; JOHN DOE 2; and JANE DOE 2 on behalf of themselves and all others similarly situated, Plaintiffs v. CHIQUITA BROOKS-LASURE, in her official capacity as Administrator for the Centers for Medicare and Medicaid Services; CALIFORNIA DEPARTMENT OF PUBLIC HEALTH; TOMAS ARAGON in his official capacity as Director of the California Department of Public Health; XAVIER BECERRA in his official capacity as Secretary of the U.S. Department of Health and Human Services; and DOES 1 through 30, Defendants, Case No. C 22-04501 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California grants the Plaintiffs' motion to proceed under pseudonyms. In this putative class action, the Plaintiffs claim the Defendants were and are relocating them and other residents of a skilled nursing facility in violation of state and federal law. They request that they and their conservators be allowed to proceed under pseudonyms. The Defendants have failed to oppose the Plaintiffs' motion for administrative relief within the time allotted under Civil Local Rule 7-11(b). Thus, the motion is "deemed submitted for immediate determination without hearing." Each of the Plaintiffs has a severe mental disability (such as brain injury, dementia, and depression) or an uncommon medical condition (such as compulsive behavior, brittle diabetes, and hemorrhagic stroke). The sensitive and highly personal nature of such mental health information and medical diagnoses weighs in favor of anonymity. Other courts in the circuit have found the same. Furthermore, there would be no prejudice to the Defendants should this order grant the Plaintiffs' motion. The Plaintiffs' identities are unnecessary to determine "the effect that administrative action (specifically requiring closure and relocation) will have and has had on a large class of individuals with disabilities and medical conditions." Similarly, the public will have access to all relevant facts despite not knowing the Plaintiffs' identities. In fact, the public has an interest in ensuring that persons with mental disabilities are not chilled from bringing lawsuits for concerns of privacy. For these reasons, the Plaintiffs' need for anonymity, therefore, outweighs the public's interest in knowing their identities and any prejudice to the Defendants. A full-text copy of the Court's Aug. 17, 2022 Order is available at https://tinyurl.com/yupnbdmn from Leagle.com. CANCER & HEMATOLOGY CENTERS: Shepherd Files Suit in W.D. Michigan ----------------------------------------------------------------- A class action lawsuit has been filed against Cancer & Hematology Centers of Western Michigan, P.C. The case is styled as Bridget Shepherd, on behalf of herself and all others similarly situated v. Cancer & Hematology Centers of Western Michigan, P.C., Case No. 1:22-cv-00734-PLM-SJB (W.D. Mich., Aug. 11, 2022). The nature of suit is stated as Other P.I. for Tort Negligence. Cancer & Hematology Centers of Western Michigan -- https://www.chcwm.com/ -- is dedicated to help, healing and hope for cancer patients and their families.[BN] The Plaintiffs are represented by: Seth Adam Meyer, Esq. KELLER POSTMAN LLC 150 N Riverside Plz., Ste. 4270 Chicago, IL 60606 Phone: (312) 741-5220 Email: sam@kellerlenkner.com The Defendant is represented by: Carly Anne Zagaroli, Esq. Thomas M. Amon, Esq. WARNER NORCROSS & JUDD LLP (GRAND RAPIDS) 1500 Warner Bldg. 150 Ottawa Ave. NW Grand Rapids, MI 49503 Phone: (616) 752-2000 Email: czagaroli@wnj.com tamon@wnj.com CAPSULE CORPORATION: J.L. Files Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Capsule Corporation. The case is styled as J.L., individually and on behalf of all others similarly situated v. Capsule Corporation, Case No. 1:22-cv-07276-PKC (S.D.N.Y., Aug. 25, 2022). The nature of suit is stated as Other P.I. for Breach of Contract. Capsule Corporation -- https://www.capsule.com/ -- operates as a chain of pharmacy stores. The Company offers injections, medicines, and chemical products.[BN] The Plaintiff is represented by: William Bernard Federman, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Oklahoma City, OK 73102 Phone: (405) 235-1560 Fax: (405) 239-2112 Email: wbf@federmanlaw.com CASH APP: Suit Claims Data Breach Exposed Data of 8.2 Mil. Users ---------------------------------------------------------------- Abraham Jewett at topclassactions.com reports that Cash App and Block failed to safeguard the information of their customers during a December 2021 data breach, a new class action lawsuit alleges. Plaintiffs Michelle Salinas and Raymel Washington claim Cash App and Block's alleged failure to secure their accounts led to "the unauthorized public release of the personally identifiable information of 8.2 million current and former Cash App Investing customers." The data breach compromised the security of the financial accounts, including Cash App Investing portfolios, of affected customers, they allege. "The security of Defendants' customers' Private Information is accordingly of the utmost importance," states the Block and Cash App class action. Salinas and Washington claim that even one instance of their private information being misused or improperly accessed by cybercriminals can "lead to substantial financial losses." "These costs will not only impact Defendants' bottom line but, more importantly, the millions of Cash App Investing users whose Private Information is now in the hands of cybercriminals," the Block and Cash App class action states. Cash App, Block class action alleges former employee downloaded info without authorization The data breach came to light after Block disclosed that one of its former employees had downloaded the private information of Cash App investors without being authorized to do so, according to the Cash App and Block class action. While alleging that the exact reason for the data breach "remain unclear," the plaintiffs argue "there is no doubt that Defendants failed to adequately protect Plaintiffs' and Class members' Private Information." Salinas and Washington claim Cash App and Block are guilty of breach of contract and negligence and in violation of California's Unfair Competition Law and the Illinois Consumer Fraud Act, among other things. They demand a jury trial and request declaratory and injunctive relief along with an award of actual, compensatory and statutory damages for themselves and all class members. Salinas and Washington want to represent a nationwide class of consumers who had their information compromised in the data breach, along with subclasses from California, Illinois and Texas. A similar class action lawsuit was filed against R.R. Donnelly earlier this month over claims the printing company was negligent in protecting the data of its customers during a 2021 data breach. The plaintiffs are represented by Dennis Stewart, Daniel E. Gustafson, David A. Goodwin and Mary M. Nikolai of Gustafson Gluek PLLC; Nicholas A. Migliaccio and Jason S. Rathod of Migliaccio & Rathod LLP; Gary S. Graifman and Melissa R. Emert of Kantrowitz Goldhamer & Graifman PC; and Scott. D Hirsch of Scott Hirsch Law Group. The Block and Cash App class action lawsuit is Salinas, et al. v. Block, Inc., et al., Case No. 4:22-cv-04823, in the U.S. District Court for the Northern District of California. [GN] CAWLEY & BERGMANN: Wolkenfeld Says Collection Letter Deceptive -------------------------------------------------------------- MEIR WOLKENFELD, individually and on behalf of all others similarly situated, Plaintiff v. CAWLEY & BERGMANN, LLC; JHPDE FINANCE I, LLC, Defendants, Case No. 524191/2022 (N.Y. Sup. Ct., August 19, 2022) brings this class action complaint against the Defendant for their alleged violations of the Fair Debt Collection Practices Act. The Plaintiff has allegedly incurred one or more obligations to the non-party Citibank N.A./Citi Prestige Card (Citibank) some time prior to August 20, 2021. According to the complaint, Defendant JHPDE became the owner of the right to collect the alleged debt, which then contracted with the Defendant C&B to collect the alleged debt. Consequently, on or about August 20, 2021, the Defendants sent the Plaintiff an initial collection letter concerning the alleged debt. The Defendants' letter allegedly states a nonsensical and contradictory amounts, thereby improperly claiming an incorrect balance owed on an alleged debt. The Plaintiff suspected that the letter may be fraudulent because of the conflicting amounts due. The Plaintiff has therefore been misled as to whether paying the listed balance will close the account, or whether another change might impact the debt, so that more than the current balance would be needed to close the account. The letter is therefore false, deceptive, misleading, and unfair, says the suit. As a result of the Defendant's unlawful conduct, the Plaintiff has expended time and money in determining the proper course of action. The Plaintiff has also suffered from nervous feelings and restless nights because of the Defendants' improper acts. Thus, on behalf of himself and all other similarly situated individuals, the Plaintiff seeks statutory damages and actual damages, as well as litigation costs with reasonable attorneys' fees and expenses, pre- and post-judgment interest, and other relief as the Court may deem just and proper. The Corporate Defendants are debt collectors. [BN] The Plaintiff is represented by: Robert Yusko, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Tel: (201) 282-6500 E-mail: ryusk@steinsakslegal.com CENTRAL PAYMENT: Class Settlement in Custom Hair Suit Gets Approval ------------------------------------------------------------------- In the case, CUSTOM HAIR DESIGNS BY SANDY, LLC, on behalf of themselves and all others similarly situated; and SKIP'S PRECISION WELDING, LLC, on behalf of themselves and all others similarly situated, Plaintiffs v. CENTRAL PAYMENT CO., LLC, Defendant, Case No. 8:17CV310 (D. Neb.), Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska grants the Unopposed Motion for Settlement, and grants the Unopposed Motion for Attorney Fees, Expenses, and Service Award. Defendant Central Payment Co., LLC ("CPAY") provides payment processing services. The Plaintiffs are former CPAY customers that allege CPAY engaged in billing practices that violated 18 U.S.C. Section 1962(c) ("RICO"), fraudulently concealed material facts, breached the covenant of good faith and fair dealing, and breached the Parties' contracts. They sought to recover the alleged overcharges on behalf of themselves and a national class of other merchants. CPAY denied the Plaintiffs' allegations. The original complaint was filed on Aug. 21, 2017 and asserted breach of contract claims. After CPAY answered and the parties took preliminary discovery, the Plaintiffs amended the complaint to add claims for RICO and fraudulent concealment. CPAY moved to dismiss these new claims and such motion was denied. Substantial discovery followed, including the production and review of tens-of-thousands of pages of documents, the exchange of three expert reports, and the taking of six depositions. The Plaintiffs thereafter moved for certification of the Class and CPAY moved for summary judgment and to strike one of their experts. On Feb. 11, 2020, the Court certified the Class, denied summary judgment to CPAY, and denied the motion to strike. CPAY obtained leave from the Eighth Circuit to appeal the class certification decision and the case was stayed pending resolution of that appeal. The Eighth Circuit thereafter affirmed the Court's class certification decision. CPAY's subsequent requests for en banc review from the Eighth Circuit and certiorari review from the Supreme Court were also denied. The Parties thereafter resumed merits discovery, with more than 300,000 pages of additional documents being produced, 15 additional depositions being taken, and seven additional expert reports being exchanged. After the Plaintiffs provided notice to the Class in accordance with the plan approved by the Court, the Parties engaged in voluminous motion practice. CPAY moved to stay the claims of certain Class members it claimed were contractually bound to arbitrate any disputes and separately moved for leave to assert arbitration as an affirmative defense. After both motions were denied, CPAY appealed. Although CPAY was denied a stay pending resolution of this appeal in the Court, its request for a stay from the Eighth Circuit (as well as its arbitration appeal) remained unresolved at the time the Settlement was reached. CPAY also filed three additional motions: a motion to decertify the Class, a motion for partial summary judgment on several elements of the Class claims, and a motion to preclude testimony from one of Plaintiffs' experts. The Plaintiffs, meanwhile, filed two motions: a motion for summary judgment on all elements of the express breach of contract claim except damages, as well as a motion to preclude testimony from one of CPAY's experts and limit the testimony of another. All such motions were denied. The Parties engaged in pre-trial activities, exchanging witness lists, exhibit lists, deposition designations, motions in limine, and responses and objections thereto. While in the midst of their trial preparations, the parties participated in mediation on Jan. 7, 2022, with experienced class-action mediator Hunter Hughes. Despite arm's length and contentious negotiations, no settlement was reached. However, the parties continued to exchange settlement proposals following the mediation and ultimately reached a memorandum of understanding on the terms of the settlement. The Settlement was subsequently reduced to a settlement agreement and release, for which the parties sought preliminary approval. On March 9, 2022, the Court issued preliminary approval of the proposed settlement, affirmed its earlier certification of the Class, and instructed that notice of the settlement be distributed to the class members. On March 14, 2022, the settlement administrator provided notice of the proposed settlement to the appropriate federal and state authorities, as required by and in compliance with the Class Action Fairness Act, 28 U.S.C. Section 1715(b). Notice was thereafter distributed to the 185,884 Class members in accordance with the preliminary approval Order and the Settlement. The motion for final approval of class action settlement and motion for attorneys' fees, expenses, and service awards were filed by the Plaintiffs and the Class Counsel on May 6, 2022. No objections to the Settlement or to either of the motions were filed before the June 7, 2022, deadline set by the Court. Pursuant to the settlement, CPAY will pay up to $84 million to establish a fund which will provide cash benefits to the Class members and also cover attorneys' fees and expenses, service awards, and notice and administration costs. All of the 185,884 Class members are eligible to receive a cash payment under the Settlement. The 27,164 Class members that are current customers will automatically be issued cash payments without the need to submit a claim. The 158,720 Class members that are former customers are eligible to receive cash payments by filing a simple claim form. The precise amount of the settlement fund (up to $84 million) will depend on the number of valid claims submitted by former customers but, no matter how many claims are submitted, CPAY will under no circumstances pay less than $58.8 million. The amount of each Class member's payment will be calculated pursuant to the allocation method attached as Exhibit 1 to the Settlement. In conjunction with the Settlement, the Class will release CPAY from all claims that were or could have been raised in this litigation. Class members specifically retain all rights to challenge invoices sent by CPAY after March 9, 2022. Pursuant to, and as more fully described in Section X of the Settlement, as of the date Defendant makes its last contribution to the settlement fund, the releasing parties will be deemed to have and, by operation of the final order and judgment will have, fully and irrevocably released and forever discharged the released parties from the claims identified in paragraph 76 of the Settlement. The release does not affect any right of the Releasing Parties to contest for any reason any invoice sent by CPAY after March 9, 2022. In the event funds remain in the settlement fund 90 days after reissued checks are mailed as contemplated by paragraph 73 of the Settlement, such funds will be distributed to Class members that previously cashed their checks if there are sufficient remaining funds to warrant such a distribution. If there are not sufficient remaining funds to warrant such a distribution, they will be distributed via cy pres to such recipient(s) as are agreed on by the Parties and submitted to the Court for approval. As to the adequacy of notice, based on the declarations of Peter Sperry of Epiq Systems, Inc. (the appointed Settlement Administrator), Judge Bataillon finds that that the Class members have been individually notified of the Settlement pursuant to the plan approved and directed by the Court's preliminary approval Order, with more than 92% of these notices being successfully delivered. He further finds that the notice program constituted the best practicable notice of the Settlement to the Class under the circumstances and fully satisfies the requirements of due process, including Fed. R. Civ. P. 23(e)(1), Fed. R. Civ. P. 23(c)(2)(B), and 28 U.S.C. Section 1715. Accordingly, the Court has jurisdiction over all class members for purposes of the Settlement. Turning to the merits of the Settlement, Judge Bataillon specifically finds that the appointed class representatives have provided outstanding representation of the Class, and treatment of the litigation as a class action for settlement purposes, with the Class as defined, is appropriate, proper, and satisfies the criteria set forth in Federal Rule of Civil Procedure 23(e). He thus finally approves in all respects the Settlement and finds that the Settlement's terms for allocating and distributing the settlement fund are in all respects fair, reasonable, and adequate, and are in the best interests of the Class. He reaffirms its prior certification of the Class, Filing No. 142, consisting of: All of CPAY's customers that, from Jan. 1, 2010, to Oct. 31, 2020 (a) were assessed the TSSNF Fee (a/k/a TSYS Network Fee); (b) were assessed the PCI Noncompliance Fee; (c) had their contractual credit card discount rates increased above their contractual rate by CPAY; and/or (d) had credit card transactions shifted by CPAY from lower-cost rate tiers to higher-cost rate tiers. Plaintiffs Custom Hair Designs by Sandy, LLC and Skip's Precision Welding, LLC have adequately represented the Class and are appointed as the Class Representatives. Wagstaff & Cartmell, LLP and Webb, Klase & Lemond, LLC have adequately represented the Class and are appointed as the Class Counsel. Judge Bataillon grants to the Class Counsel a fee in the amount of $28 million and the requested reimbursement of $1,209,102.88 in litigation expenses they have incurred during the prosecution of the case. He finds to be fully supported by the facts, record, and applicable law. These awards are fully supported by the Settlement, the facts, the record, and the applicable law. These amounts will be paid from the settlement fund. The Settlement provides for service awards of $15,000 for each of the two Class Representatives for their service on behalf of the Class. The awarded fees and expenses will be paid to the Class Counsel and the service awards will be paid to the Class Representatives in accordance with the terms of the Settlement. Judge Bataillon grants the Unopposed Motion for Settlement and the Unopposed Motion for Attorney Fees, Expenses, and Service Award; and approves the Class Counsel's requests for attorneys' fees of $28 million, expenses of $1,209,102.88, and service awards of $15,000 each for the Class Representatives. The Parties and the Settlement Administrator are directed to carry out the Settlement according to its terms. Judge Bataillon dismisses the action with prejudice as against the named Plaintiffs, all Class members, and the Defendant, and the Parties are directed to take the necessary steps to effectuate the terms of the Settlement. The Parties will bear their own costs except as provided by the Settlement. Without affecting the finality of the judgment, the Court retains continuing and exclusive jurisdiction over all matters relating to the administration, consummation, enforcement, and interpretation of the Settlement and of the final order and judgment, to protect and effectuate this final order and judgment, and for any other necessary purpose. In the event that the Settlement does not become effective according to its terms, the Order and final judgment will be rendered null and void as provided by the Settlement, will be vacated, and all orders entered and releases delivered in connection with the Settlement will be null and void to the extent provided by and in accordance with the Settlement. A separate judgment will be entered. A full-text copy of the Court's Aug. 17, 2022 Memorandum & Order is available at https://tinyurl.com/yvpfeunb from Leagle.com. COINBASE GLOBAL: Faces Class Action Over Alleged Security Lapses ---------------------------------------------------------------- Rashmi Ramesh at govinfosecurity.com reports that Coinbase faces a putative class action lawsuit alleging the cryptocurrency trading platform fails to protect customer accounts from being "fleeced by hackers." Plaintiff Manish Aggarwal says the largest cryptocurrency platform by trading volume in the United States failed to prevent hackers from draining $200,000 from his account despite having turned on multifactor authentication. His complaint filed in the Northern District of California also details a days-long saga to reach a human representative after running into difficulties logging onto his account. Coinbase "does a poor job of protecting its user accounts from unlawful intrusion and thievery" and "an even worse job" of helping customers with post-breach security, the complaint alleges. Ordinary account holders are left "to navigate a faceless and impenetrable automated 'customer service' process that leads nowhere." The lawsuit seeks class action status on behalf of all Coinbase customers who had funds stolen from their account since April 1, 2021. Plaintiff attorneys demand damages, including treble damages for alleged violations of the Electronic Funds Transfer Act. The publicly-traded crypto trading platform acknowledged an early 2021 cyberattack that allowed attackers to steal an undisclosed amount from more than 6,000 users targeted by a large-scale email phishing attack. In its most recent quarterly securities filing, the company says it has 103 million verified users and facilitated $526 billion worth of trading volume during the first half of 2022. Aggarwal says he doesn't believe himself to be the victim of a phishing attack that would allow a third party to gain access to the multifactor authentication codes generated via Google Authenticator he activated at Coinbase's behest. "The only explanation for how Plaintiff's account was emptied is that a third party - either a hacker or Coinbase employee - was able to see Plaintiff's Google Authenticator Code on Coinbase's system because Coinbase did not take sufficient care to prevent access to that information." Whatever security updates the company made following the 2021 attack weren't sufficient to prevent hackers from continuing to drain customer wallets, the lawsuit says. As a financial institution holding billions of dollars of consumer funds, Coinbase is obligated to restore stolen consumer funds by the Electronic Funds Transfer Act, the lawsuit says. Coinbase acknowledged it must deploy "bank-level security standards" in a Securities and Exchange Commission filing, the lawsuit notes. "Coinbase cannot shed those duties through buried disclaimer language on its website and should be required to make Plaintiff and all similarly situated consumers whole for their losses," it says. The company also faces a separate proposed class action filed in the Northern District of Georgia from a plaintiff making similar allegations. In that lawsuit, plaintiff George Kattula says he lost $6,000 worth of cryptocurrency due to the platform's security lapses. In September, a system error led Coinbase sending out false automated security alerts to about 125,000 customers late last week indicating their 2FA settings had been changed, while in February, a "market-nuking" API bug halted new trading orders on the platform. [GN] COMMUNITY HEALTH: Court Denies Bid to Dismiss Amended Padilla Suit ------------------------------------------------------------------ In the case, CALEB PADILLA, individually and on behalf of all others similarly situated, Plaintiff v. COMMUNITY HEALTH SYSTEMS, INC., et al., Defendants, Case No. 3:19-cv-00461 (M.D. Tenn.), Judge Eli Richardson of the U.S. District Court for the Middle District of Tennessee, Nashville Division, denies the Defendants' Motion to Dismiss Amended Complaint. The putative class action is grounded on alleged violations of the Securities Exchange Act of 1934 (15 U.S.C. Section 78a, et seq.). CHS is one of the largest publicly traded hospital companies in the United States. As of Dec. 31, 2016, its affiliates owned or leased 155 hospitals in 21 states, with roughly 26,222 hospital beds. It generates revenue from general and specialized hospital and outpatient healthcare services, such as general acute care, emergency room care, surgery, critical care, internal medicine, obstetrics, diagnostic, psychiatric, and rehabilitation. The patients it serves have private insurance, Medicare, Medicaid, or are uninsured (which CHS refers to as a "self-pay" patient). Between 2007 and 2014, CHS grew rapidly via acquisition of other companies, which it financed by debt. In order to avoid default, it had to adhere to strict financial ratio covenants. In 2014, it acquired Health Management Associates, Inc. ("HMA") for roughly $7.3 billion, including assuming $3.8 in indebtedness. This exacerbated CHS' already precarious financial position. In 2015, it lost approximately one-third of its value when its earnings were substantially below expectations, in part due to an increase in self-pay patients. In 2016, the spin-off of 38 hospitals severely underperformed expectations. The real problems started in 2017, according to the Complaint. In February 2017, CHS reported a net loss attributable to shareholders of $1.7 billion for 2016, and its fourth quarter earnings before interest, taxes, depreciation, and amortization ("EBITDA") of $564 million, about 6.6% higher than analyst's average estimate. The next day, Cash's resignation as CFO was announced, and Aaron was appointed the Executive VP and CFO of CHS. Aaron had been CHS' independent auditor at Deloitte & Touche LLP. Smith, CHS' CEO, remained in his position and was the highest earner among hospital executives. That year, CHS sold 30 hospitals in order to pay down its debt, but it faced criticism for selling some of the best hospitals in its portfolio. During this time, CHS faced internal problems. A confidential witness who worked at CHS between March 2016 and December 2017 reports that CHS attempted to automate the process of billing payors, which required hiring people to fix the resulting mess. This confidential witness' job at CHS was to find errors in the automated system, and there were often bills with underpaid claims of tens of thousands of dollars. This confidential witness also reports that self-pay patients would often speak with the billing department and agree on a fee lower than the fee at which the services were. At all relevant times to the action, CHS was constrained by covenants in a $1 billion credit facility (referred to by CHS at times as its "senior secured credit facility") it maintained and used for financing the acquisition of HMA and refinancing existing indebtedness. It had to satisfy the covenants in order to avoid default: Under its agreement with its creditor, it had to keep its "secured net leverage ratio" below a maximum level and its "interest coverage ratio" above a minimum level. Essentially, in order to avoid default, CHS had to manage its Consolidated EBITDA7. Despite the importance of the metric represented by Consolidated EBITDA, CHS refused to report its Consolidated EBITDA to investors or explain its process for calculating its Consolidated EBITDA. The Securities and Exchange Commission ("SEC") requested that CHS "revises" its EBITDA disclosure to present it "as it is calculated in the covenant agreement with CHS's senior secured credit facility." In response, CHS stated that it would not disclose the Consolidated EBITDA and instead would disclose only the "Adjusted EBITDA" to investors. The Defendants negotiated before the start of the Class Period for the ability to exclude from the debt covenant measurements any charge CHS could attribute to "changes in accounting principles." CHS also renegotiated its secured net leverage ratio levels and its required interest coverage ratio. The SEC requires that Generally Accepted Accounting Principles ("GAAP") be used in the preparation of financial statements, and if they are not, then the financial statements are presumed to be misleading and inaccurate. The GAAP requires that an entity with significant receivables (like CHS) must reflect its assets at their proper carrying value and must regularly assess the collectability of its receivables at each reporting date. An entity must deduct credit losses directly from the allowance when the entity becomes aware that a balance is no longer collectible. Until Jan. 1, 2018, CHS recognized its revenue under ASC 605. This allows revenue to be recognized if "(a) persuasive evidence of an arrangement existed, (b) delivery had occurred, (c) the vendor's fee was fixed or determinable, and (d) collectability was probable." Its gross service revenue (i.e., what the revenue would be at the full established rates) was substantially greater than the revenue that Defendant CHS actually expected to collect. Therefore, it reported a figure for "net operating revenue" (gross service revenue less deductions from such revenue, i.e., the sum of its contractual adjustments and discounts). As a result of this accounting method, though CHS' gross service revenue increased by 12.8%, its net operating revenue decreased in the periods leading up to the Class Period. The net operating revenue also functions as a component of "adjusted EBITDA," which is not related to GAAP but is disclosed in CHS' annual and quarterly financial reports. Considering how adjusted EBITDA is calculated, bad debt impacted CHS' adjusted EBITDA and net operating income. Pursuant to ASC 945-605, CHS reported top-line revenue using the amount it billed for a given service, even if it did not expect to collect the full amount. This meant, essentially, that if an uninsured patient was billed $100, and CHS expected the patient would pay $10, it could still record $100 as top-line revenue, together with a $90 contra-revenue line item for bad debt. For periods beginning after Dec. 15, 2017 (i.e., beginning with the 2018 reporting year), public companies like CHS were required to adopt ASC 606 (which supersedes the principles set forth in ASC 605). ASC 606 narrows what healthcare providers can report as bad debt. Unlike ASC 605, ASC 606 allows entities to recognize revenue only to the extent that the entity expects to receive the recognized amount, and an entity cannot recognize revenue until it can determine how much it expects to collect. To use the previous example referenced in discussing ASC 605, under ASC 606, if CHS expected to receive $10 of a $100 invoice, it would record $10 (as opposed to $100) in revenue and nothing (as opposed to $90) under bad debt, and bad debt would be reported only if the patient paid less than the expected $10. So "for healthcare providers with 'self-pay' patients, the switch from ASC 605 to ASC 606 generally resulted in a significant reduction in what was previously reported as revenue, with a corresponding reduction in bad debt." However, "even though the 'gross revenue' and 'bad debt' figures were different between ASC 605 and 606, the "net operating revenues" (i.e., gross revenue less contractual adjustments, discounts, and bad debts) should have been the same." The Plaintiffs allege both that CHS' management was responsible for the reliability of financial statements prepared for external purposes and that Defendant CHS should have issued restatements to promptly correct them. In addition to providing the above-referenced allegations serving to provide relatively general (alleged) background information surrounding the claims, the Plaintiffs point to several instances when the Defendants allegedly issued materially false and misleading statements during the Class Period. The Plaintiffs have multiple theories for why the statements were materially false and/or misleading, and these theories variously are invoked repeatedly throughout the Amended Complaint. The Complaint asserts two claims. Count One alleges violation(s) by all Defendants of section 10(b) of the Exchange Act (codified at 15 U.S.C. Section 78j(a)) and Rule 10b-5 promulgated thereunder (codified at 17 C.F.R. Section 240.10b-5). Count Two sets forth a claim of so-called "control person" liability with respect to the Individual Defendants -- i.e., the theory that the Individual Defendants (even if not otherwise liable for the violations alleged in Count One) are, under section 20(a) of the Exchange Act (codified at 15 U.S.C. Section 78t(a)), liable for violations committed by CHS as alleged in Count One because they are so-called controlling persons of CHS. The Plaintiffs' requested relief includes certification of the proposed plaintiffs' class, compensatory damages, and reasonable costs and expenses. Pending before the Court is Defendants' Motion to Dismiss the Amended Complaint. They assert that the Amended Complaint is flawed in several ways: 1) it fails to allege facts sufficient to establish that Defendants made misrepresentations; 2) it fails to allege facts sufficient to establish the element of scienter; 3) it fails as a matter of law because the company's estimates of future uncollectible revenue are inherently forward-looking and protected by an applicable safe harbor; and 4) because (according to the Defendants) it fails to state a claim of securities fraud against the Company, the claims against the Individual Defendants also fail as a matter of law. First, the Defendants argue that the Plaintiffs fail to plead with particularity facts sufficient to establish a material misrepresentation or omission. The Plaintiffs identify the following paragraphs from the Amended Complaint as the ones setting forth the (affirmative) statements that underlie their claims of material misrepresentations and omissions: paragraphs 100-101, 102-03, 104, 105-06, 107-08, 109-10, 112-13, 115-16, 117, 118-19, 120, 123, 127, 128-29, 130-32, 133, 134, 135, 136, 139-40, 144, 145-48, 149, 150. The Defendants raise three (supposed) bases for challenging the sufficiency of the Plaintiffs' assertion that their allegations of material misrepresentations and omissions are plausibly grounded on these statements: 1) the Plaintiffs' supposed failure to sufficiently plead a lack of a reasonable basis for Defendant CHS's accounting estimates of uncollectible revenue, 2) CHS' supposed full disclosure of the risks related to uncollectible revenue, and 3) the statements supposedly amounting to mere (non-actionable) subjective statements of opinion, puffery, and characterizations. Judge Richardson rejects the Defendants' insistence that a "reasonable basis" standard applies when determining whether the Plaintiffs have stated a claim for a material representation or omission based on forward-looking accounting estimates. Reasonableness is a question of fact to be decided by the jury, not by the Court on a motion to dismiss. Judge Richardson thus does not consider the Defendants' proposed "reasonable basis" test when assessing whether the Plaintiffs have adequately stated a claim for a material representation or omission. He also opines that the factual determinations are inappropriate on a motion to dismiss. Whether the Defendants provided "fulsome, meaningful" cautionary language is clearly an issue in dispute between the parties, and is not fit for determination at this juncture. Because the issue of whether the Defendants adequately disclosed risks related to uncollectable revenue is an issue of fact, the Court is not situated to dismiss the Plaintiffs' well-pleaded 10(b) claim based on an argument that the Defendants did indeed disclose the risks at issue. Judge Richardson is also unconvinced that the statements fall into the category of non-actionable opinion, puffery, or mere characterizations. Therefore, he finds that contrary to the Defendants' argument, the Plaintiffs have sufficiently alleged statements that plausibly amount to misstatements and omissions and therefore are potentially actionable. Second, as to alleging facts sufficient to establish element of scienter, the Defendants make several primary arguments to support their position that there is a lack of pled scienter: 1) speculative motive and presumed access to information are not sufficient to raise scienter inference; 2) the size of a change of estimate does not establish scienter; 3) an SEC investigation resulting in no adverse findings does not raise an inference of scienter; 4) executives receiving salaries does not raise an inference of scienter; 5) Cash's retirement does not show scienter; 6) individual SOX certifications do not show scienter; and 7) confidential witness statements do not raise scienter inference. The Plaintiffs respond that the Amended Complaint creates a strong inference of scienter because the following things demonstrate scienter: 1) the Defendants' debt covenant manipulation; 2) company executives' active involvement with and awareness of CHS' core business; 3) the magnitude of the fraud; 4) post-class period admissions; 5) the Individual Defendants' review and approval of the company's accounting controls; and 6) the Defendants' weak competing inference. Judge Richardson holds that the Plaintiffs have alleged factual matter plausibly suggesting that the Defendants knew, or were reckless, in "disregarding the materially false or misleading nature of the information they caused to be disseminated to the investing public" and that the Individual Defendants "also knew or were deliberately reckless in disregarding that the material misrepresentations and omissions contained in the Company's public statements would adversely affect the integrity of the market for the Company's securities and would cause the price of such securities to be artificially inflated" so as to constitute fraud. The Plaintiffs' allegations of motive to engage in fraud, specific allegations as to Individual Defendants Aaron and Smith's direct involvement in financial calculations and assessments, Defendant Cash's role in the company (and its subsequent core-operations inference), the magnitude of the alleged fraud, and the relevant SOX certifications provide ample support for a scienter finding. Taken together, the Plaintiffs have sufficiently alleged facts to show a strong inference of scienter as to CHS understating its provision for bad debts and overstating its operating revenue and Adjusted EBITDA. Judge Richardson finds that, when the allegations are viewed holistically, the Plaintiffs have sufficiently alleged facts giving rise to a strong inference of scienter as required to validly state the securities fraud claims they asserted. Third, the Defendants contend that the statements mentioned in paragraphs 100, 102, 105, 107, 109, 112, 115, 117, 118, 130, 133, 136, 145, 146, 149 and 150 of the Amended Complaint are forward-looking. Of these paragraphs, paragraphs 100, 105, 112, 115, 130, 145, and 146 all refer to statements that are contained within financial statements prepared in accordance with GAAP and are therefore excluded from the safe-harbor provision. Paragraphs 107, 117, 133, and 149 refer to the SOX certifications wherein the Defendants "affirmed that the CHS' financial statements fairly presented all material aspects of its financial condition and results of operations, and that the CHS' disclosure controls and procedures were effective, and provided reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. The remaining paragraphs (102, 109, 118, 136 and 150), which refer to statements made during quarterly earnings calls and a conference, primarily involve CHS' then-current and previous EBITDA cushion. Judge Richardson finds that the safe-harbor provision does not shield the Defendants from liability for any statements underlying the Plaintiffs' claims. Finally, in Count Two, the Plaintiffs assert a theory of so-called control person liability under Section 20(a). The Plaintiffs contend that each of the Individual Defendants has control person liability for the actionable violations of CHS alleged in Count One and thus are jointly and severally liable with CHS for such actionable violations. Disputing that the Individual Defendants are subject to control person liability, the Defendants contend that "without a primary violation by CHSI or the Individual Defendants of the securities laws, there can be no secondary violation by the Individual Defendants as controlling persons under Section 20(a)." Judge Richardson rejects this argument, as the Plaintiffs have adequately alleged a primary violation of Section 10(b). The Defendants make no other argument as to Count Two. Their motion to dismiss the Plaintiffs' Section 20(a) claim is thus denied. For the reasons he discussed, Judge Richardson denies the Defendants' Motion. An appropriate order will be entered. A full-text copy of the Court's Aug. 17, 2022 Memorandum Opinion is available at https://tinyurl.com/53ajhjty from Leagle.com. CORNERSTONE COMPOSITES: Harrold Sues Over Failure to Pay OT Wages ----------------------------------------------------------------- MAURICE HARROLD, on behalf of himself and all others similarly situated, Plaintiff v. CORNERSTONE COMPOSITES INC., Defendant, Case No. 2:22-cv-00953 (E.D. Wis., August 19, 2022) is a collective and class action complaint brought against the Defendant for purposes of obtaining relief under the Fair Labor Standards Act and the Wisconsin's Wage Payment and Collection Laws for unpaid overtime compensation, and other relief that the Court may deem appropriate. The Plaintiff was hired by the Defendant in approximately May 2021 as an hourly-paid, non-exempt employee in the position of Operator working at the Defendant's direction and at its Milwaukee, Wisconsin location. According to the complaint, the Defendant has operated an unlawful compensation system that deprived and failed to compensate the Plaintiff and all other similarly situated current and former hourly-paid, non-exempt employees for all hours worked and work performed each workweek. Specifically, the Defendant has been shaving time from the Plaintiff's and other similarly situated employees' timesheets for pre-shift and post-shift hours worked and/or work performed. Despite regularly working more than 40 hours per week, they were not properly paid overtime compensation at the rate of one and one-half times their regular rates of pay for all hours worked in excess of 40 per workweek, says the suit. Cornerstone Composites, Inc. is a contract molding company that designs and manufactures a wide range of industrial parts using composite molding. [BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Tel: (262) 780-1953 Fax: (262) 565-6469 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com COSTCO WHOLESALE: Skrandel Seeks to Certify Two Classes ------------------------------------------------------- In the class action lawsuit captioned as JOHN SKRANDEL, individually and on behalf of all others similarly Situated, v. COSTCO WHOLESALE CORPORATION, Case No. 9:21-cv-80826-AMC (S.D. Fla.), the Plaintiff asks the Court to enter an order certifying the following classes: Florida Class "All Costco members, persons or entities that purchased an Interstate-branded battery with the words "Free Replacement" on the label at a Costco location in the State of Florida who: (a) returned the Interstate Battery to Costco within the warranty period, and (b) incurred an out-of-pocket cost to obtain a replacement Interstate-branded battery;" and National Class "All Costco members, persons or entities in the United States (including its Territories and the District of Columbia) that purchased an Interstate-branded battery with the words "Free Replacement" on the label at a Costco location who: (a) returned the Interstate Battery to Costco within the warranty period, and (b) incurred an out-of-pocket cost to obtain a replacement Interstate-branded battery." The Plaintiff further requests that the Court appoint him as Class Representative and his counsel as Class Counsel, and direct the parties to submit a notice plan pursuant to Fed. R. Civ. P. 23(c). Costco operates a chain of 559 retail stores. A copy of the Plaintiff's motion to certify class dated Aug. 9, 2022 is available from PacerMonitor.com at https://bit.ly/3AWpibc at no extra charge.[CC] The Plaintiff is represented by: Jason H. Alperstein, Esq. Jeff Ostrow, Esq. Kristen Lake Cardoso, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT 1 W. Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 E-mail: alperstein@kolawyers.com ostrow@kolawyers.com cardoso@kolawyers.com - and - Steven G. Calamusa, Esq. Geoffrey Stahl, Esq. GORDON & PARTNERS, P.A. 4114 Northlake Boulevard Palm Beach Gardens, FL 33410 Telephone: (561) 799-5070 Facsimile: (561) 799-4050 E-mail: scalamusa@fortheinjured.com gstahl@fortheinjured.com COUNTY OF CUYAHOGA: Appeals Musial Suit Ruling to Ohio Supreme Ct. ------------------------------------------------------------------ COUNTY OF CUYAHOGA filed on August 19, 2022, a notice of appeal — which was assigned case number 22-1034 — asking the Ohio Supreme Court to review the judgment of the Court of Appeals of Ohio for the Eighth District, Cuyahoga, in the case captioned as Musial Offices, Ltd. vs. County of Cuyahoga, Case No. 110974. The Plaintiff, on behalf of itself and all others similarly situated taxpayers, brought this class action suit against the Defendant to recover alleged overpayments of property taxes. On November 1, 2021, the trial court ruled on the illegal taxation claim in favor of the Plaintiff and against the Defendant in the amount of $3,927,385.91 with interest at the statutory rate beginning on the date of judgment plus court costs. The Defendant appealed the trial court's judgment and asserted that it failed to include statutory language, wrongfully granted post-judgment interest and failed to include terms addressing the disbursement of the funds to the class members and the attorney fees. The Court of Appeals of Ohio for the Eighth District, Cuyahoga, ruled that Cuyahoga County's first assignment of error contests the law of the case. The court sustained Cuyahoga County's second assignment of error, overruled its third and fourth assignments of error and remanded the case to the trial court to enter final judgment in favor of the Plaintiff consistent with its opinion. [BN] Plaintiff-Appellee MUSIAL OFFICES, LTD., on behalf of itself and all others similarly situated, is represented by: Patrick J. Perotti, Esq. DWORKEN & BERNSTEIN CO., LPA 1468 W. 9th Street, Suite 135 Cleveland, OH 44113 Telephone: (216) 230-3051 E-mail: pperotti@dworkenlaw.com Defendant-Appellant COUNTY OF CUYAHOGA, is represented by: Stephen William Funk, Esq. ROETZEL & ANDRESS 222 South Main Street, Suite 400 Akron, OH 44308 Telephone: (330) 849-6602 Facsimile: (330) 376-4577 E-mail: sfunk@ralaw.com COUPANG INC: Bids for Lead Plaintiff Appointment Due October 25 --------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP announces that it has filed a class action lawsuit seeking to represent purchasers of Coupang, Inc. (NYSE: CPNG) Class A common stock pursuant and/or traceable to the registration statement issued in connection with Coupang's March 11, 2021 initial public offering ("IPO"). Captioned Choi v. Coupang, Inc., No. 22-cv-07309 (S.D.N.Y.), the Coupang class action lawsuit charges Coupang, certain of its top executives and directors, as well as the IPO's underwriters with violations of the Securities Act of 1933. If you suffered substantial losses and wish to serve as lead plaintiff of the Coupang class action lawsuit, please provide your information here: https://www.rgrdlaw.com/cases-coupang-inc-class-action-lawsuit-cpng.html. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the Coupang class action lawsuit must be filed with the court no later than October 25, 2022. CASE ALLEGATIONS: Headquartered in South Korea, Coupang is one of the largest e-commerce companies in Asia. Coupang also provides a "Rocket WOW" customer loyalty program to offer additional benefits to its most engaged and frequent customers. Pursuant to the IPO's registration statement, Coupang sold to the investing public 100 million shares of Coupang Class A common stock at $35 per share, for total gross proceeds of $3.5 billion, making it the largest IPO by a foreign company on Wall Street since China's Alibaba Group Holding Limited's IPO in 2014. However, as the Coupang class action lawsuit alleges, the IPO's registration statement failed to disclose that: (a) Coupang was engaged in improper anti-competitive practices with its suppliers and other third parties in violation of applicable regulations, including: (i) pressuring suppliers to raise prices of products on competing e-commerce platforms to ensure Coupang's prices would be more competitive; (ii) coercing suppliers into purchasing advertisements that would benefit Coupang financially; (iii) forcing suppliers to shoulder all expenses from sales promotions; and (iv) requesting wholesale rebates from suppliers without specifying any terms relating to rebate programs, all of which served to artificially maintain Coupang's lower prices and artificially inflate Coupang's historical revenues and market share; (b) Coupang had improperly adjusted search algorithms and manipulated product reviews on its marketplace platform to prioritize its own private-label branded products over those of other sellers and merchants, to the detriment of consumers, merchants, and suppliers; (c) unbeknownst to its Rocket WOW members, Coupang was selling products to non-member customers at lower prices than those offered to its Rocket WOW members; (d) Coupang subjected its workforce to extreme, unsafe, and unhealthy working conditions; (e) all of the above illicit practices exposed Coupang to a heightened, but undisclosed, risk of reputational and regulatory scrutiny that would harm Coupang's critical relationships with consumers, merchants, suppliers, and the workforce; and (f) Coupang's lower prices, historical revenues, competitive advantages, and growing market share were the result of systemic, improper, unethical, and/or illegal practices, and, thus, unsustainable. By July 14, 2022, Coupang Class A common stock closed below $15 per share - more than 50% below the $35 per share price investors paid for the stock in the IPO less than a year-and-a-half earlier. The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. You can view a copy of the complaint by clicking here. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Class A common stock pursuant and/or traceable to the registration statement issued in connection with the IPO to seek appointment as lead plaintiff in the Coupang class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the Coupang class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Coupang class action lawsuit. An investor's ability to share in any potential future recovery of the Coupang class action lawsuit is not dependent upon serving as lead plaintiff. ABOUT ROBBINS GELLER Robbins Geller is one of the world's leading complex class action firms representing plaintiffs in securities fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class Action Services Top 50 Report for recovering nearly $2 billion for investors last year alone - more than triple the amount recovered by any other plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller is one of the largest plaintiffs' firms in the world and the Firm's attorneys have obtained many of the largest securities class action recoveries in history, including the largest securities class action recovery ever - $7.2 billion - in In re Enron Corp. Sec. Litig. Please visit the following page for more information: https://www.rgrdlaw.com/services-litigation-securities-fraud.html [GN] COUPANG INC: Faces Class Action Suit Over Securities Violations --------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP announces that it has filed a class action lawsuit seeking to represent purchasers of Coupang, Inc. CPNG Class A common stock pursuant and/or traceable to the registration statement issued in connection with Coupang's March 11, 2021 initial public offering ("IPO"). Captioned Choi v. Coupang, Inc., No. 22-cv-07309 (S.D.N.Y.), the Coupang class action lawsuit charges Coupang, certain of its top executives and directors, as well as the IPO's underwriters with violations of the Securities Act of 1933. If you suffered substantial losses and wish to serve as lead plaintiff of the Coupang class action lawsuit, please provide your information here: https://www.rgrdlaw.com/cases-coupang-inc-class-action-lawsuit-cpng.html. You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the Coupang class action lawsuit must be filed with the court no later than October 25, 2022. CASE ALLEGATIONS: Headquartered in South Korea, Coupang is one of the largest e-commerce companies in Asia. Coupang also provides a "Rocket WOW" customer loyalty program to offer additional benefits to its most engaged and frequent customers. Pursuant to the IPO's registration statement, Coupang sold to the investing public 100 million shares of Coupang Class A common stock at $35 per share, for total gross proceeds of $3.5 billion, making it the largest IPO by a foreign company on Wall Street since China's Alibaba Group Holding Limited's IPO in 2014. However, as the Coupang class action lawsuit alleges, the IPO's registration statement failed to disclose that: (a) Coupang was engaged in improper anti-competitive practices with its suppliers and other third parties in violation of applicable regulations, including: (i) pressuring suppliers to raise prices of products on competing e-commerce platforms to ensure Coupang's prices would be more competitive; (ii) coercing suppliers into purchasing advertisements that would benefit Coupang financially; (iii) forcing suppliers to shoulder all expenses from sales promotions; and (iv) requesting wholesale rebates from suppliers without specifying any terms relating to rebate programs, all of which served to artificially maintain Coupang's lower prices and artificially inflate Coupang's historical revenues and market share; (b) Coupang had improperly adjusted search algorithms and manipulated product reviews on its marketplace platform to prioritize its own private-label branded products over those of other sellers and merchants, to the detriment of consumers, merchants, and suppliers; (c) unbeknownst to its Rocket WOW members, Coupang was selling products to non-member customers at lower prices than those offered to its Rocket WOW members; (d) Coupang subjected its workforce to extreme, unsafe, and unhealthy working conditions; (e) all of the above illicit practices exposed Coupang to a heightened, but undisclosed, risk of reputational and regulatory scrutiny that would harm Coupang's critical relationships with consumers, merchants, suppliers, and the workforce; and (f) Coupang's lower prices, historical revenues, competitive advantages, and growing market share were the result of systemic, improper, unethical, and/or illegal practices, and, thus, unsustainable. By July 14, 2022, Coupang Class A common stock closed below $15 per share – more than 50% below the $35 per share price investors paid for the stock in the IPO less than a year-and-a-half earlier. The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. You can view a copy of the complaint by clicking here. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Class A common stock pursuant and/or traceable to the registration statement issued in connection with the IPO to seek appointment as lead plaintiff in the Coupang class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the Coupang class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Coupang class action lawsuit. An investor's ability to share in any potential future recovery of the Coupang class action lawsuit is not dependent upon serving as lead plaintiff. [GN] CRAFTY GAMES: Toro Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Crafty Games, LLC. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Crafty Games, LLC, Case No. 1:22-cv-07253 (S.D.N.Y., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Crafty Games, LLC -- https://www.crafty-games.com/ -- is in the hobby, toy, and game shops business.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com D. R. HORTON: S.D. Alabama Denies Bid to Remand Morton Suit ----------------------------------------------------------- In the case, MICHAEL MORTON, et al., Plaintiffs v. D. R. HORTON, et al., Defendants, Civil Action No. 22-00091-JB-N (S.D. Ala.), Judge Jeffrey U. Beaverstock of the U.S. District Court for the Southern District of Alabama, Southern Division, denies the Plaintiffs' Motion to Remand. The action was brought by three separate groups of Plaintiffs in the Circuit Court of Baldwin County, Alabama: 1) Michael Morton and 87 additional Plaintiffs filed a civil action against D.R. Horton, Inc., D.R. Horton, Inc.-Birmingham, and Bethel Engineering, Inc. on Nov. 9, 2021; 2) Sara Fahrmann, individually, and the Estate of Patrick Fahrmann, filed a civil action against D.R. Horton, Inc., D.R. Horton, Inc.-Birmingham, and Bethel Engineering, Inc., and the City of Orange Beach, Alabama on Jan. 14, 2022; and, 3) Penny McAnally and 70 additional Plaintiffs filed a civil action against D.R. Horton, Inc., D.R. Horton, Inc.-Birmingham, and Bethel Engineering, Inc. on Jan. 21, 2022. (Doc. 1-06). The complaints assert as many as 12 state-law claims sounding in theories of negligence, wantonness, nuisance, negligent hiring, wrongful death, and fraud, or, in the alternative, violations of the Alabama Deceptive Trade Practices, Ala. Code Section 8-19-1, et seq. The Plaintiffs allege homebuilders Horton and D.R. Horton, Inc.-Birmingham conspired with Bethel Engineering, Inc. to misrepresent to Plaintiffs the houses they bought in Baldwin County, Alabama, were constructed to meet the Gold Fortified standard, as described in the "Institute for Business and Home Safety (IBHS) Fortified Home Technical Home Requirements." They allege the Defendants provided them with a certificate that the houses they purchased would meet the Gold Fortified standard; however, the houses do not meet the Gold Fortified standard. The Plaintiffs also allege the construction techniques employed violate numerous municipal and county building codes. They contend that these misrepresentations and violations have resulted in the diminution of their property value, and this economic injury is compounded by the fact that Horton holds the mortgage on the house which is greater than the current value of the property. The Plaintiffs seek compensatory damages for diminution in value of their real properties, mental anguish and emotional distress, as well as punitive damages and injunctive relief. The three separate lawsuits were consolidated into the Morton action by the Baldwin County Circuit Court on Feb. 8, 2022. On Feb. 28, 2022, Bethel filed a Notice of Removal. In its Notice, Bethel invoked the Court's jurisdiction pursuant to the Class Action Fairness Act, codified at 28 U.S.C. Section 1332(d). Upon consolidation, the Morton action included over 100 Plaintiffs, which triggered Bethel's right to remove under CAFA. In its Notice of Removal, Bethel posited the consolidated action was properly removable because it now satisfied the mass action requirements under CAFA pursuant to 28 U.S.C. Section 1332(d)(11)4, the minimal diversity requirement, and the matter in controversy exceeds $5 million in the aggregate, exclusive of interest and costs. The Plaintiffs filed a Motion to Remand on March 30, 2022, contending the matter is due to be remanded on three grounds: 1) removal by Bethel was untimely; 2) remand is required under the "local controversy" exception to CAFA (28 U.S.C. Section 1332(d)(4)(A)); and 3) remand is required under the "home state" exception to CAFA (28 U.S.C. Section 1332(d)(4)(B)). The Court held a hearing on June 1, 2022. At the hearing, the Plaintiffs conceded Bethel's removal was timely and did not dispute that this action is properly before the Court under CAFA. Accordingly, the only issue before the Court is whether the local controversy or the home state exception to CAFA requires the Court to decline to exercise its jurisdiction. Bethel contends the Plaintiffs have not met their burden "of proving the evidence necessary to support their legal theories on each exception and have failed to present evidence to this Court to support their contentions on remand." Indeed, according to Bethel, "to the extent that the submissions by the Plaintiffs provide any reliable or credible evidence, the submissions prove that the exceptions to federal jurisdiction would not apply to the case." Judge Beaverstock agrees. The Plaintiffs argue the Court should decline to exercise its jurisdiction under the local controversy exception to CAFA. They carry their burden on two elements of the local controversy exception. First, the alleged conduct, which concerns the construction of residential property located in Baldwin County, Alabama, necessarily occurred in Alabama, the state where the action was filed. Second, the Plaintiffs assert, and Bethel does not dispute, that no other class actions have been filed in the preceding three-year period. However, Bethel does dispute whether the Plaintiffs have carried their burden to demonstrate 1) more than two-thirds of Plaintiffs are citizens of Alabama as required by 28 U.S.C. Section 1332(d)(4)(A)(i); and, 2) a state of Alabama defendant (either Bethel or Horton-Birmingham) is the "significant defendant" as required by 28 U.S.C. Section 1332(d)(4)(A)(ii). Judge Beaverstock finds that it is more likely than not two-thirds of the Plaintiffs reside, with the intent to remain in the house they bought in Baldwin County, Alabama, which was constructed by the Defendants. However, without more concrete evidence on the subject (homestead exemption records, for example), this likelihood is only "sensible guesswork." He declines to conclude more than two-thirds of the Plaintiffs reside in Baldwin County, Alabama, based on the record before the Court. Moreover, the Plaintiffs have failed to demonstrate whether a local defendant, Horton-Birmingham or Bethel, is the "significant defendant," as required by the second prong of the local controversy exception. Judge Beaverstock further finds that the Plaintiffs provided no facts in their motion to remand to assist the Court with the necessary "substantive analysis" to find local defendant, Horton-Birmingham, a "significant defendant." Moreover, the allegations of the Complaint, plead almost equally against all three defendants, hinders this analysis as well. On this record, Judge Beaverstock finds the Plaintiffs have not met their burden of showing remand is appropriate under the "local controversy" exception to CAFA, as codified at 28 U.S.C. Section 1332(d)(4)(A). For these same reasons, remand under the home state exception is not proper. The home state exception applies if "two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed." As discussed, the Plaintiffs have not met their burden to demonstrate more than two-thirds of the class of Plaintiffs are citizens of Alabama. Even if they could meet this burden, the Plaintiffs must demonstrate Bethel and/or Horton-Birmingham are primary defendants. The complaint alleges the same claims against all Defendants, making no distinction between local and foreign defendants. Accordingly, all the Defendants qualify as "primary defendants" under Section 1332(d)(4)(B). Because the "primary defendants" are not all citizens of the state of Alabama, the Plaintiffs cannot establish that the Section 1332(d)(4)(B) local controversy exception applies. For all of the foregoing reasons, Judge Beaverstock denies the Plaintiffs' Motion to Remand. He severs and remands back to the state court the following counts, which do not arise from the common set of facts forming the mass action: Counts XI and XII of the McNally Action and Counts IX to XII of the Fahrmann Action. A full-text copy of the Court's Aug. 17, 2022 Order is available at https://tinyurl.com/28pnrrp8 from Leagle.com. DANDURAND DRUG CO: Jones Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Dandurand Drug Co., Inc. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. Dandurand Drug Co., Inc., Case No. 1:22-cv-07263 (S.D.N.Y., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Dandurand Drugstore -- https://danduranddrugs.com/ -- is a local, family owned compounding pharmacy, retail pharmacy and boutique.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com DIAKON LOGISTICS: 7th Cir. Reverses Class Cert. in Johnson Suit --------------------------------------------------------------- In the case, TIMOTHY JOHNSON and DARRYL MOORE, on behalf of a class, Plaintiffs-Appellants v. DIAKON LOGISTICS, INC., and WILLIAM C. JARNAGIN, JR., Defendants-Appellees, Case No. 21-2886 (7th Cir.), the U.S. Court of Appeals for the Seventh Circuit reverses the district court's order certifying a class. Diakon coordinates delivery and installation of merchandise for retailers across the nation. It is incorporated in Delaware and has its principal place of business in Virginia. Diakon provided services to Innovel Solutions, Inc., a former subsidiary of Sears, Roebuck and Co. Innovel hired Diakon to get furniture and appliances from warehouses to customers' homes. Diakon, in turn, hired truck drivers to perform these deliveries. The Plaintiffs are two of those drivers, Johnson and Moore. Johnson and Moore were citizens of Illinois who drove for Diakon out of Innovel's warehouse in Romeoville, Illinois, which is about 30 miles southwest of Chicago. Innovel operated a second warehouse in Granite City, Illinois, just across the Mississippi River from St. Louis. Drivers working out of both warehouses delivered merchandise to customers of Sears in Illinois, Indiana, and Missouri. The Plaintiffs and Diakon signed contracts called "Service Agreements". Two versions of the Service Agreement -- one signed before 2015 and one that governed the relations from 2015 onward -- are potentially relevant. They classify the drivers as independent contractors yet include terms that set out detailed expectations for the drivers -- among other things what uniforms to wear, what business cards to carry, what decals to put on their trucks, and how to perform deliveries and installations. The Service Agreements also contain choice-of-law provisions that select Virginia law to govern the parties' relations. The Service Agreements authorize Diakon to deduct fees and penalties from the drivers' pay. They allow deductions for truck rental fees, the cost of insurance, workers' compensation coverage, and customers' refused deliveries. In 2016 Johnson and Moore sued Diakon in federal court alleging violations of Illinois labor law. The Plaintiffs allege that Diakon misclassified them as independent contractors when they were employees under Illinois law. Their allegation rests on the definition of "employee" in the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 to 115/15. Under 820 ILCS 115/2, Illinois courts apply a three-part test to determine employee status. The parties agree that this approach, known as the "ABC Test", is more likely to classify workers as employees than is the parallel test under Virginia law, which plaintiffs concede would treat them as contractors. The Illinois Act allows deductions from pay only if the employees consent in writing at the time of the deduction. The Plaintiffs allege that Diakon's deductions from their pay did not satisfy this contemporaneous-authorization requirement and so were improper. They seek reimbursement on behalf of a class of drivers in Illinois who signed similar Service Agreements with Diakon. Federal subject-matter jurisdiction rests on the Class Action Fairness Act, 28 U.S.C. Section 1332(d)(2), which creates jurisdiction when three requirements are met: The amount in controversy exceeds $5 million, at least one class member and any defendant are citizens of different states, and there are at least 100 class members. The district judge certified a class under Fed. R. Civ. P. 23(b)(3) comprising "all delivery drivers who (1) signed a Service Agreement with Diakon, (2) were classified as independent contractors, and (3) who performed deliveries for Diakon and Sears in Illinois between June 28, 2006 and the present." This class satisfies the Act's requirements, but the story is more complicated. That's because the Plaintiffs amended their complaint to add Sears and Innovel as Defendants. The Class Action Fairness Act typically requires only minimal diversity, so the presence of defendants with Illinois citizenship did not affect subject-matter jurisdiction. But these new Defendants posed a potential problem: Their inclusion might trigger the abstention doctrines embodied in 28 U.S.C. Section 1332(d)(4). Both Sears and Innovel are citizens of Illinois, and the class includes only truck drivers making deliveries in Illinois, which raises the question whether the single-state carveout in Section 1332(d)(4) applies. The parties' briefs did not address the possibility, but a court may raise abstention under the Class Action Fairness Act on its own. The Seventh Circuit invited the parties to submit supplemental memoranda to address the issue. After reviewing the parties' submissions, it concludes that abstention is not warranted. Whether abstention under the Class Action Fairness Act should be evaluated based on the original complaint or instead on circumstances that may change as the case proceeds is an open issue in this circuit. But, under either approach, the result in the case is the same. Sears and Innovel did not enter the case until the Plaintiffs' Second Amended Complaint, filed about a year after the suit commenced. The Plaintiffs voluntarily dismissed their claims against Sears and Innovel in October 2021. Sears and Innovel were not parties when the case began and are not parties now, so abstention is not required. That brings the Seventh Circuit to the Plaintiffs' claims under the Illinois Wage Payment and Collections Act. The Plaintiffs maintain that Diakon has waived the benefit of the choice-of-law provisions. Diakon argued that the state-law claims were preempted and later defended against class certification. It was not until summary judgment that Diakon raised the choice-of-law clauses directly, and the Plaintiffs say that Diakon's prior arguments amount to an admission that Illinois law controls. The Seventh Circuit holds that if the critical test for determining whether the Plaintiffs count as employees for purposes of the Act comes from the statute rather than a contract, then the Service Agreement is irrelevant, no matter what it says. This means that Illinois would not honor either the declaration of independent-contractor status or the choice-of-Virginia-law clause. Diakon does not contend that Illinois would violate the Constitution's Full Faith and Credit Clause by preferring its domestic law over another state's for work done within its borders. And a valid claim under the Act does not require the presence of a formal contract at all. Diakon contends that the post-2015 version of the Service Agreement should be treated differently. But given the analysis, the Seventh Circuit holds it is hard to see how any contractual language moves the needle. The test for employee status under the Act does not depend on (and often disregards) contractual designations. While the contracts create certain obligations, such as the drivers' duty to take care when making deliveries (and so to avoid deductions if possible), Diakon's duty to make only proper deductions from the drivers' wages flows from the Act, not the contracts. It follows that nothing about choosing Virginia law affects the Plaintiffs' claims under the Act. The Seventh Circuit concludes that the contractual clauses on which Diakon relies do not apply to claims brought under the Act based on work done in Illinois. The judgment of the district court is reversed, and the case is remanded for further proceedings. A full-text copy of the Court's Aug. 17, 2022 Order is available at https://tinyurl.com/pjpz5n3y from Leagle.com. DINGDONG LTD: Bids for Lead Plaintiff Deadline Due October 25 ------------------------------------------------------------- The Class: Shareholder rights law firm Robbins LLP informs investors that a shareholder filed a class action on behalf of all persons who purchased or otherwise acquired Dingdong Ltd. (NYSE: DDL) American Depository Shares ("ADS") pursuant or traceable to the Company's June 2021 initial public offering ("IPO"), for violations of the Securities Act of 1933. Dingdong purports to be a leading and the fastest growing on-demand e-commerce company in China. What is this Case About: Dingdong Ltd. (DDL) Misrepresented the Quality of its Food Products According to the complaint, in June 2021, defendants issued approximately 4.07 million ADS to the investing public at $23.50 per ADS, all pursuant to the Registration Statement. According to the Registration Statement, Dingdong's mission is to "make fresh groceries as available as running water to every household." To achieve this end, Dingdong has purportedly "embraced a user-centric philosophy" that is committed to "directly providing users and households . . . fresh produce, meat and seafood and other daily necessities through a convenient and excellent shopping experience supported by an extensive self-operated frontline fulfillment grid." Critically, Dingdong differentiates itself from its competitors by claiming to "procure . . . products primarily from direct upstream sources such as farms and cooperatives," "apply stringent quality control across [its] entire supply chain to ensure product quality to [its] users," and rely on its "frontline fulfillment grid and robust, digitalized fulfillment capabilities . . . [to] deliver . . . orders within 30 minutes." Unbeknownst to prospective investors, however, the Registration Statement misrepresented Dingdong's commitment to ensuring the safety and quality of the food it distributes to the market. In fact, Dingdong was actively flouting its food safety responsibilities, by selling, for example, dead fish to customers while marketing it as live fish and recycling vegetables that were past their sell-by date. These issues were occurring with enough frequency that Chinese regulators began scrutinizing Dingdong's supply chain inputs, including its own facilities, which was likely to (and did) negatively impact Dingdong's business, operations, and reputation. Soon the media began reporting on the issues. On March 17, 2022, a Beijing News published a report stating that Chinese regulators launched a probe into the Company for food safety violations uncovered by the local news. According to the report, "Dingdong replaced labels on expired vegetables and sold frozen fish products as fresh." On this news, the price of Dingdong's ADS declined over 10.8%, to close at $3.79 per ADS on March 17, 2022. By the commencement of the class action, Dingdong's shares traded as low as $2.51 per ADS, representing a decline of over 89% from the $23.50 IPO offering price. Next Steps: If you acquired shares of Dingdong Ltd. pursuant to the Company's IPO, you have until October 25, 2022, to ask the court to appoint you lead plaintiff for the class. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. You do not have to participate in the case to be eligible for a recovery. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. [GN] DIRECTV LLC: Appeals Class Certification Ruling in Vance TCPA Suit ------------------------------------------------------------------ DIRECTV, LLC is taking an appeal from a court ruling granting class certification in the lawsuit entitled DAVID VANCE and ROXIE VANCE, and CARLA SHULTZ, individually and on behalf of a class of all persons and entities similarly situated, Plaintiffs v. DIRECTV, LLC, Defendant, Case No. 5:17-CV-179, in the United States District Court for the Northern District of West Virginia. The Plaintiffs allege that the Defendant retained AC1 Communications to sell Defendant's services. The Plaintiffs assert that AC1 purchased a list of leads and phone numbers from a third party and used that list to make telemarketing calls, but failed to scrub the list for numbers on the national do-not-call list and called those numbers in violation of the Telephone Consumer Protection Act. The Plaintiffs do not claim Defendant itself placed the calls in question. Rather, Plaintiffs argue DirecTV is vicariously liable for AC1's actions. On April 11, 2022, the Plaintiff filed a motion to certify the following class: All persons within the United States (a) whose telephone numbers were listed on the Do Not Call Registry, and (b) who received more than one telemarketing call within any twelve-month period at any time from AC1, (c) to promote the sale of DirecTV. On August 1, 2022, the Court entered an order granting Plaintiff's motion for class certification. The appellate case is captioned as DIRECTV, LLC v. David Vance, Case No. 22-250, in the United States Court of Appeals for the Fourth Circuit, filed on Aug. 16, 2022.[BN] Defendant-Petitioner DIRECTV, LLC is represented by: Daniel Rolf Adler, Esq. Patrick J. Fuster, Esq. Bradley Joseph Hamburger, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7634 - and - Lauren R. Goldman, Esq. GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166-0000 Telephone: (212) 351-4000 Plaintiffs-Respondents DAVID VANCE, ROXY VANCE, CARLA SHULTZ, individually and on behalf of a class of all persons and entities similarly situated, are represented by: John William Barrett, Esq. Sharon F. Iskra, Esq. Jonathan R. Marshall, Esq. BAILEY & GLASSER, LLP 209 Capitol Street Charleston, WV 25301 Telephone: (304) 345-6555 - and - Edward A. Broderick, Esq. Anthony I. Paronich, Esq. BRODERICK & PARANICH, P.C. 99 High Street Boston, MA 02110 Telephone: (617) 738-7080 - and - Benjamin James Hogan, Esq. BAILEY & GLASSER, LLP 6 Canyon Road Morgantown, WV 26508 Telephone: (304) 594-0087 - and - Matthew P. McCue, Esq. LAW OFFICE OF MATTHEW P. MCCUE 1 South Avenue Natick, MA 01760 Telephone: (508) 655-1415 ELANCO ANIMAL: Hunter's 1st Amended Suit Dismissed W/o Prejudice ---------------------------------------------------------------- In the case, SANDRA HUNTER Individually and on behalf of all others similarly situated, MARLA STRAPPE, Plaintiffs v. ELANCO ANIMAL HEALTH INCORPORATED, JEFFREY N. SIMMONS, TODD S. YOUNG, JAMES M. MEER, R. DAVID HOOVER, KAPILA K. ANAND, JOHN P. BILBREY, ART A. GARCIA, MICHAEL J. HARRINGTON, DEBORAH T. KOCHEVAR, LAWRENCE E. KURZIUS, KIRK MCDONALD, DENISE SCOTS-KNIGHT, Defendants, Case No. 1:20-cv-01460-SEB-MG (S.D. Ind.), Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, grants the Defendants' Motion to Dismiss and dismisses the Plaintiffs' First Amended Complaint without prejudice. Investors in Elanco -- a publicly traded company based in Greenfield, Indiana -- have filed the purported class action for federal securities violations on behalf of all persons who purchased or otherwise acquired Elanco stock between Sept. 20, 2018, and May 6, 2020. The Plaintiffs allege that Elanco and its officers engaged in a scheme to deceive and defraud investors of the true value of Elanco's common stock in violation of federal securities law. Specifically, the Plaintiffs allege that the Defendants artificially boosted Elanco's earnings and growth by "stuffing" product distribution channels "far in excess of end-user demand." This, they argue, combined with the Defendants' false and misleading representations about its growth and financial situation, led to the artificial inflation of its stock prices during the class period. Due to the Defendants' allegedly unlawful actions, the Plaintiffs claim that they were injured by purchasing or acquiring Elanco stock during the class period. The Plaintiffs include both those persons and entities who purchased Elanco securities between Sept. 20, 2018, and May 6, 2020, as well as those who acquired Elanco common stock pursuant to Elanco's merger with Aratana Therapeutics on July 18, 2019. Lead Plaintiff Hunter, filed the class action complaint alleging that Elanco, its CEO Simmons, and its CFO Young, made fraudulent misrepresentations by omitting material information relating to "systemic and undisclosed channel stuffing practices" that caused distributors to purchase inventory "far in excess of demand" from dozens of public statements. The Plaintiffs argue the omission of this information made Elanco's growth and revenue figures throughout the class period materially misleading. They also allege that Elanco's Chief Account Officer Meer and the nine members of Elanco's Board of Directors, by omitting this information regarding channel stuffing from the offering materials for Elanco's merger with Arantana Therapeutics, rendered the growth and revenue calculations within these documents materially misleading as well. Formerly a business unit of Eli Lilly and Company, Elanco was spun-off into a standalone, public company after its initial public offering on September 20, 2018. Elanco develops, manufactures, and markets animal health products for both companion animals, such as dogs and cats, and food animals, i.e., cattle and poultry. Prior to its initial public offering, Elanco was the fourth largest animal health company in the world, with $2.9 billion in revenue in 2017. Elanco had reported net income losses for the three years preceding its initial public offering, with $310.7 million, $47.9 million, and $210.8 million net income loss in 2017, 2016, and 2015, respectively. Judge Barker considers the Defendants' Motion to Dismiss this cause of action for failure to state a claim, and failure to meet the heightened pleading standards required by these specific securities violations. She explains, the securities statutes authorize private securities fraud actions, "not to provide investors with broad insurance against market losses, but to protect them against those economic losses that misrepresentations actually cause." While "greater clairvoyance" in 2020 might have led to Elanco's realization of a looming global pandemic that ultimately shut down great swathes of the world's economy, "failure to make such perceptions does not constitute fraud," there is no "fraud by hindsight." The Court is not the first to consider such claims as are alleged in the present case. Though Elanco initially "bathed itself in a favorable light," later it found itself having to "disclose that things are less rosy." The Plaintiffs contend in their complaint that "the difference must be attributable to fraud." "Must be" is the critical phrase, "for the complaint offers no explanatory information other than the differences between the two statements of the firm's condition." "Because only a fraction of financial deteriorations reflects fraud, the Plaintiffs may not proffer the different financial statements and rest." "Investors must point to some facts suggesting that the difference is attributable to fraud." That ingredient, according to Judge Barker, is missing in the Plaintiffs' Amended Complaint. They are able to muster only conclusory accusations, each reflecting merely the benefit of hindsight. Judge Barker finds that the Plaintiffs have (i) failed to plead an actionable misstatement or omission; (ii) not adequately alleged any channel stuffing (much less fraudulent channel stuffing), and that the Defendants had a duty to disclose it as a 'known trend' under SEC regulations; (iii) failed to plead a fraudulent channel stuffing scheme embedded in any corresponding misstatement or omission that escapes the PSLRA protections; (iv) not "pled facts rendering an inference of scienter at least as likely as any plausible opposing inference"; (v) failed to adequately plead loss causation; (vi) not adequately alleged primary violation of the Exchange Act; and (vii) not sufficiently alleged a channel stuffing scheme or any material misstatements or omissions. In addition, because the Plaintiffs have failed to plead a primary violation, their Section 15 claim must be dismissed as well. Judge Barker concludes that the Defendants moved for a dismissal of the lawsuit with prejudice, and she views that level of finality as inappropriate at this time. The Seventh Circuit has "repeatedly said that 'a plaintiff whose original complaint has been dismissed under Rule 12(b)(6) should be given at least one opportunity to try to amend her complaint before the entire action is dismissed.' This admonition carries special weight in securities fraud cases because in this technical and demanding corner of the law, the drafting of a cognizable complaint can be a matter of trial and error. Accordingly, Judge Barker grants the Defendants' Motion to Dismiss and dismisses the Plaintiffs' First Amended Complaint without prejudice. The Plaintiffs are allowed 45 days to seek leave to amend their complaint to conform to these rulings. Failure either to seek leave or to conform to the rulings set forth in a proposed Second Amended Complaint will result in the entry of final judgment with prejudice as to all claims. A full-text copy of the Court's Aug. 17, 2022 Order is available at https://tinyurl.com/yc8j7cfc from Leagle.com. ENDO INT'L: Laasko's 2nd Amended Complaint Dismissed With Prejudice ------------------------------------------------------------------- In the case, CURTIS LAASKO, Lead Plaintiff and BENOIT ALBIGES, on behalf of themselves and all others similarly situated, Named Plaintiff v. ENDO INTERNATIONAL, PLC, et al., Defendants, Case No. 20cv07536(EP)(MAH)(D.N.J.), Judge Evelyn Padin of the U.S. District Court for the District of New Jersey grants the Defendants' Motion to Dismiss the Second Amended Class Action Complaint. The motion is brought pursuant to Fed. R. Civ. P. 9(b), 12(b)(6), and Section 21D of the Private Securities Litigation Reform Act of 1995. The Plaintiffs represent a class of purchasers of Endo common stock between Aug. 8, 2017 and Aug. 10, 2021. Endo is a publicly-traded pharmaceutical company that manufactures, markets, and sells generic and branded pharmaceuticals, including opioids, in the U.S. and internationally. Defendants are Endo; Paul V. Campanelli, former Endo President, CEO, and Chairman of Endo's Board of Directors; Blaise Coleman, former Endo Executive VP ("EVP") and CFO, and current Endo President and CEO; Mark T. Bradley, former Endo Senior VP ("SVP"), and current Endo CFO and Board member; and, Matthew J. Maletta, current Endo EVP, Chief Legal Officer ("CLO"), and Secretary. The Plaintiffs' First Amended Complaint ("FAC") alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b) and 78t(a), and Securities and Exchange Commission Rule 10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5. It alleged that the Defendants made materially false or misleading statements to investors because the Defendants allegedly knew or recklessly disregarded information undermining their statements, Defendant Campanelli received an allegedly suspicious bonus and resigned under questionable circumstances, and the opioid-related litigation threatened Endo's survival. After holding oral argument on Aug. 30, 2021, the Court granted the Defendants' motion to dismiss the FAC. It found the alleged materially false or misleading statements inactionable and that it could not infer scienter from the mere discussion of opioid-related litigation at company meetings. The Plaintiffs' SAC alleges the same Exchange Act violations as those raised in its FAC. It alleges that the Defendants made materially false or misleading statements to investors when they allegedly engaged in a coordinated campaign to obstruct opioid-related litigation and misrepresented the Company's financial condition during the Class Period. The SAC makes nearly identical allegations as those that the Court found deficient in its FAC. The Defendants move to dismiss, contending that the Plaintiffs have failed to adequately allege the elements of their securities claims. First, the Defendants contend that the SAC fails to state a Section 10(b) claim under Rule 9(b) and the PSLRA because it does not allege with particularity that: (1) any of the challenged statements were materially misleading; (2) the Defendants acted with fraudulent intent; and (3) the alleged fraud caused the Plaintiffs' losses. As to whether the Plaintiffs have alleged that the Defendants made a materially false or misleading statement, Judge Padin opines that (i) the Plaintiffs fail to plead with particularity why Endo's straightforward statements about how it was prepared to vigorously defend itself in the opioid-related litigation were false or misleading; (ii) the Plaintiffs fail to provide any legitimate explanation as to why Endo's risk disclosures concerning pending and potential future opioid-related litigation and liability were materially false or misleading; (iii) Endo's forward-looking statements regarding liquidity risk and cash reserves were all accompanied by extensive and detailed cautionary language; and (iv) the Plaintiffs have not sufficiently pled with particularity why the Defendants' statements in the 2018 press release and to the Philadelphia Enquirer are materially false or misleading. As to whether the Plaintiffs have alleged particularized facts giving rise to a strong inference that the Defendants acted with scienter, Judge Padin opines that (i) the barebones allegation of scienter is insufficient because "an allegation that a defendant signed a SOX certification attesting to the accuracy of an SEC filing that turned out to be materially false does not add to the scienter puzzle in the absence of any allegation that the defendant knew he was signing a false SEC filing or recklessly disregarded inaccuracies contained in an SEC filing; (ii) Campanelli received a performance-based bonus in 2018, which, without more, does not support a finding of scienter; and (iii) several of the Plaintiffs' allegations are speculative and the Third Circuit has neither accepted nor rejected this doctrine in securities fraud actions. As to whether the Plaintiffs have alleged loss causation, because she has concluded that the Plaintiffs have failed to sufficiently plead the first two elements of a securities fraud claim, Judge Padin holds that it is unnecessary to analyze the Plaintiffs' allegations of loss causation. Next, the Defendants contend that because the Plaintiffs fail to state claim under Section 10(b) and do not plead facts showing each Individual Defendant was a culpable participant that their Section 20(a) claims must fail. Judge Padin finds that a Section 20(a) claim cannot survive without an underlying violation of the Exchange Act. Because the Plaintiffs have not adequately alleged an underlying securities violation, their Section 20(a) claim fails. Finally, the Plaintiffs make a one-sentence request for leave to amend their complaint in the event that any of their pleadings are found deficient. Judge Padin holds that the Plaintiffs were already given an opportunity to cure the deficiencies in their complaint and were even provided with feedback before the previous motion to dismiss was granted and leave to amend was granted. Despite this, they did not sufficiently strengthen their pleadings in the SAC. Hence, the Plaintiffs' Motion for Leave to Amend is denied. For the reasons she stated, Judge Padin dismisses the Plaintiffs' SAC with prejudice. She denies the Plaintiffs' Motion for Leave to Amend. An appropriate Order accompanies her Opinion. A full-text copy of the Court's Aug. 17, 2022 Opinion is available at https://tinyurl.com/4f2anh6e from Leagle.com. ENGELHARDT & CO: Dismissal of Colceriu's Amended Complaint Affirmed ------------------------------------------------------------------- In the case, LIGIA COLCERIU, and those similarly situated, Plaintiff-Appellant v. JAMIE BARBARY, a.k.a. Jamie Engelhardt, ENGELHARDT & CO. LLC, Defendants-Appellees, Case No. 21-14370 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit affirms the dismissal of Colceriu's amended complaint. Ms. Colceriu appeals the dismissal of her amended complaint against Jamie Barbary and her business, Engelhardt. Colceriu alleged that Barbary unlawfully profited from assisting Instagram "micro-influencers" to amass followers using a "giveaway," which Colceriu registered for free of cost and did not win. The district court ruled that Colceriu lacked standing to bring a putative class action against Barbary for operating an illegal lottery, Fla. Stat. Sections 849.09, 849.094, unjust enrichment, negligent misrepresentation, or violating the Florida Deceptive and Unfair Trade Practices Act, id. Sections 501.201 et seq. Ms. Colceriu's original complaint alleged that she "saw that a few of the influencers she follows on Instagram organized a 'give-away' with total cash prizes of US $9,000." The giveaway originated from "Barbary convincing and paying a few influencers to pretend that they organized a lottery" based on a business model that had increased her number of Instagram followers. "To participate in said game of chance, Colceriu was required to and did follow all the people she had to follow, all 62 of them." She "was never contacted back with the results of the lottery and she never received any prize." Colceriu classified the contest as an "illegal lottery" that, based on the approximate "value of each additional follower added to an Instagram account," amounted to "fraud of over $2 million." Ms. Barbary filed a motion to dismiss, which the district court granted. The district court ruled that Colceriu failed to "allege any specific injuries" related to any of her claims. The district court explained that the "complaint did not allege that Colceriu's time was wasted or the degree to which it was wasted by Barbary's actions or that she suffered an injury related to an 'invasion' of her social media feed by the profiles she followed." Moreover, the district court explained, it is not clear that a mere waste of time, voluntarily expended, could suffice to establish injury-in-fact in the light of Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 926 (11th Cir. 2020) (en banc), and Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). The district court dismissed Colceriu's complaint without prejudice and gave her leave to amend with the warning that her failure to "cure the defects noted" "may result in dismissal of this action without notice." Ms. Colceriu amended her complaint to add details about Barbary's relationship with the social media influencers, their enticement, and her related injuries. She alleged that the influencers, who Barbary "convinced and paid or otherwise rewarded," "advertised the games of chance" "looking for a fast payout and to artificially increase their profiles" "without disclosing that they were paid to organize and promote said lotteries." "Without receiving any basic information like the odds of winning, how and when the drawing is done, or who provides the prize," Colceriu entered the contest by following the Instagram profiles of 62 social media influencers listed on Barbary's Instagram page. It took much longer than 30 seconds for Colceriu to follow all the accounts." And "by following the 62 unrelated accounts, she provided them access to her data" and "those accounts started to send unsolicited updates and advertising in her Instagram feed." Ms. Colceriu "was never contacted back with the results of the giveaway, never received any prize," and "spent time continuing to parse through her feed and the accounts trying to find out who won." She later "expended time to unfollow some of the accounts." According to Colceriu's amended complaint, Barbary's conduct caused contestants of the giveaway "injuries, including but not limited to loss of time and emotional anguish generated by the intrusion upon their seclusion." On Barbary's motion, the district court dismissed Colceriu's amended complaint for lack of standing. It ruled that the allegations in Colceriu's amended complaint, like those in her original complaint, about her "voluntary waste of time was insufficient to establish constitutional standing." It stated that her "focus on the possible earnings of the alleged perpetrators of the alleged lottery scam" mattered not because "none of their earnings caused injury to her." And the district court discerned no concrete harm to Colceriu because she "paid nothing to enter the lottery," "she was promised nothing in exchange for entering the lottery, and she expended at most 62 minutes of energy in the process." Ms. Colceriu moved to file a second amended complaint to add seven influencers as defendants. The district court denied Colceriu's motion "because she had repeatedly failed to allege Article III standing." The Eleventh Circuit reviews de novo the threshold jurisdictional question of whether Colceriu had standing to sue. It reviews the denial of a motion to amend a complaint for abuse of discretion. The Eleventh Circuit need not decide whether Colceriu suffered an injury-in-fact because, it says, in any event, her "wasted time," inability to "appreciate the danger" of the giveaway, and "invasion of her privacy" are not traceable to Barbary. Colceriu voluntarily dedicated her time to research and follow social media influencers' profiles and to register for and later search for the winner of the giveaway. Ms. Colceriu consented for the influencers to access her data by following them. Those influencers, in turn, were responsible for distributing the data to the advertisers that allegedly bombarded Colceriu's Instagram account. And those influencers, not Barbary, were allegedly required to disclose their pecuniary interests in the giveaway and its rules and regulations. "Because Barbary didn't do (or fail to do) anything that contributed to Colceriu' harm, she cannot meet Article III's traceability requirement." The district court did not err when it dismissed her complaint. The district court also did not abuse its discretion by refusing to grant Colceriu another opportunity to amend her complaint. It identified the deficiencies in Colceriu's complaint and gave her leave to amend despite no request from her to do so. Despite the warning that a failure to cure those deficiencies would be fatal to her action, Colceriu failed to allege facts to plausibly connect Barbary to the injuries she allegedly suffered. For these reasons, the Eleventh Circuit affirms. A full-text copy of the Court's Aug. 19, 2022 Order is available at https://tinyurl.com/448xbzza from Leagle.com. ENTEGEE INC: Lambie Sues Over Failure to Pay Project Engineers' OT ------------------------------------------------------------------ PATRICK LAMBIE, individually and on behalf of all others similarly situated, Plaintiff v. ENTEGEE, INC. and SUNCOKE ENERGY, INC., Defendants, Case No. 1:22-cv-00030-JPJ-PMS (W.D. Va., August 19, 2022) brings this complaint as a collective action alleging the Defendants of willful violations of the Fair Labor Standards Act (FLSA) and the Virginia Overtime Wage Act (VOWA). The Plaintiff has worked for the Defendants as a Project Engineer from approximately July 30, 2021 through January 10, 2022. Accordingly, the Plaintiff worked on SunCoke projects and was supervised by and reported to SunCoke personnel, but paid by Entegee on an hourly basis. The Plaintiff alleges that when he and other similarly situated Project Engineers work more than 40 hours in a workweek, the Defendants denied them of their lawfully earned overtime compensation at the rate of one and one-half times their regular rates of pay for all hours worked in excess of 40 per workweek. Instead, the Defendants paid them only their regular hourly rates for the overtime hours they have worked. Specifically, the Plaintiff worked 61 hours in the workweek ending December 5, 2021. But even though the Defendants knew that he regularly worked more than 40 hours per week, he was paid only his regular straight hourly rate with no overtime premium for the hours worked in excess of 40, says the Plaintiff. On behalf of himself and all other similarly situated Project Engineers, the Plaintiff seeks to recover all unpaid wages, unpaid minimum wages and overtime compensation, liquidated damages in an amount equal to all unpaid wages, minimum wages, and overtime owed to them, pre- and post-judgment interest, reasonable attorneys' fees and costs including expert fees, and other relief permissible by law. Entegee, Inc. is an engineering placement company or staffing agency. SunCoke Energy, Inc. is a producer of the coal product coke. [BN] The Plaintiff is represented by: Timothy Coffield, Esq. COFFIELD PLC 106-F Melbourne Park Circle Charlottesville, VA 22901 Tel: (434) 218-3133 Fax: (434) 321-1636 E-mail: tc@coffieldlaw.com EXETER FINANCE: Bodnar Sues Over Repossessed Motor Vehicles ----------------------------------------------------------- LISA BODNAR; and TRACY STANLEY, individually and on behalf of all others similarly situated, Plaintiffs v. EXETER FINANCE LLC f/k/a EXETER FINANCE CORP., Case No. 220802405 (Pa. Comm. Please, Philadelphia Cty., Aug. 19, 2022) seeks to address the Defendant's unlawful and deceptive standardized policies, procedures, and practices, including systematic failure to comply with the requirements of the Uniform Commercial Code and the Pennsylvania Motor Vehicle Sales Finance Act regarding Notices of Repossession and Post-Sale Notices. According to the complaint, the Notices of Repossession sent by Exeter to the Plaintiffs systematically contained inaccurate itemizations for "Repossession expenses" and for "Storage expenses incurred through date of this Notice", which resulted in an inaccurate disclosure of the redemption amount. Also, the Notices of Repossession sent by the Defendant failed to advise the Plaintiffs of their ability to reinstate, or redeem by reinstatement, of the contract pursuant to the Defendant's practice or policy to extend the privilege of reinstatement, says the suit. EXETER FINANCE LLC f/k/a EXETER FINANCE CORP. is an auto finance company. The Company offers loan packages to car owners, dealers, and investors. [BN] The Plaintiffs are represented by: Richard Shenkan, Esq. SHENKAN INJURY LAWYERS, LLC P.O. Box 7255 New Castle, PA 16107 Telephone: (412) 716-5800 Facsimile: (888) 769-1774 FIRSTENERGY CORP: Jones & Dowling's Bid to Compel Deposition Okayed ------------------------------------------------------------------- In the case, IN RE FIRSTENERGY CORP. SECURITIES LITIGATION, This document relates to: ALL ACTIONS, Civil Action 2:20-cv-3785 (S.D. Ohio), Magistrate Judge Kimberly A. Jolson of the U.S. District Court for the Southern District of Ohio, Eastern Division, grants the Motion to Compel Second Rule 30(b)(6) Deposition of FirstEnergy, submitted by Defendants Charles E. Jones and Michael Dowling. The case is a consolidated class action brought on behalf of all purchasers of securities in FirstEnergy between Feb. 21, 2017 and July 21, 2020. The Plaintiffs seek relief under the Securities Act of 1933 and the Securities Exchange Act of 1934 against FirstEnergy, certain of its current and former employees, and "the investment banks which underwrote two FirstEnergy debt offerings during the Class Period." Two of the Defendant former employees, Jones and Dowling, bring the present motion against FirstEnergy. On April 12, 2022, Jones and Dowling served a notice of a 30(b)(6) deposition on FirstEnergy, which listed 15 topics for examination. Though FirstEnergy sent responses and objections to the notice, it ultimately agreed to produce a witness on 12 topics, some of which had been narrowed through the conferral process. On May 20, 2022, Tracy Ashton, an assistant controller, appeared as FirstEnergy's corporate representative. Jones and Dowling found her testimony lacking. During and after her testimony, they asserted that Ashton was unprepared to answer questions posed on most of the noticed topics, and, ultimately, they took the position that FirstEnergy must appear for a second 30(b)(6) deposition. After the parties went back and forth, FirstEnergy stood firm that Ashton was adequately prepared for the deposition; she gave sufficient testimony; and a second deposition was unwarranted. Later, however, FirstEnergy slightly amended its position to allow for its redeposition on only one topic -- Jones' and Dowling's terminations. Jones and Dowling rejected the proposal, brought the dispute before the Court, and filed the instant motion to compel additional 30(b)(6) testimony. The motion is fully briefed. Jones and Dowling ask the Court to reopen FirstEnergy's 30(b)(6) deposition, allowing up to seven hours of additional testimony. They maintain FirstEnergy did not participate in the first deposition in good faith, and instead prepared its designee "to do little more than recite passages from the company's Deferred Prosecution Agreement ('DPA')." Particularly, they represent that the "designee responded over 100 times that she did not know or was not prepared to answer questions on agreed-upon topics." This lack of preparation, they say, is "tantamount to a failure to appear" for the deposition, and reopening the deposition is the most appropriate remedy. FirstEnergy responds that Ashton was adequately prepared -- emphasizing that "she met with counsel over half a dozen times," and reviewed "the entire 49-page DPA and its 30-page statement of facts, all 70-plus documents referred to in the DPA, and an 84-page, single-spaced testifying aid on dozens of wide-ranging topics." It says that preparation was enough, and further suggests that Jones and Dowling are holding the witness to a standard of "absolute perfection," which is not required of a 30(b)(6) witness. Finally, it says additional testimony is not necessary given that Jones and Dowling have submitted written discovery requests to FirstEnergy on some of the at-issue topics. Judge Jolson concludes that Ashton's preparation and testimony fell short of the requirements of Rule 30(b)(6), and Jones and Dowling are therefore entitled to an additional deposition of FirstEnergy. Beginning with FirstEnergy's description of its witness preparation -- and the Court's independent review of the witness' testifying aid and testimony -- she says it is clear that Ashton's preparation was overly narrow. As FirstEnergy states, Ashton's preparation was centered on the DPA and its supporting documents. While it maintains that her testifying aid prepared her to testify about numerous topics, because the aid was predominated by quotations and references to the DPA, it truly only prepared her to testify about what the DPA already represented about each topic. In another attempt to salvage the testimony, FirstEnergy asserts that -- while Ashton responded that she did not know the answer to a question over 100 times -- such a response is reasonable where questions are argumentative, call for legal conclusions, or are otherwise improper. Yet, from her review of the deposition testimony, Judge Jolson finds that the vast majority of the questions posed to Ashton were proper, and her reason for asserting that she did not know was simply that she had not reviewed relevant facts prior to the deposition. Ashton herself admitted she was uninformed, not that the questioning was improper. And, unlike several of the other cases upon which FirstEnergy relies, this is not a case where the movants failed to use record support to establish concrete examples of lack of preparation. Nor is this a matter in which the 30(b)(6) witness testified capably on all topics, but merely failed to answer "every question" posed. Nor did this witness testify fully and completely with the aid of her preparation file. Ashton's repeated inability to testify is significant, and is not merely a case of Jones and Dowling unfairly holding FirstEnergy's designee to an unrealistic standard of "absolute perfection." To accept that Ashton was fully prepared would lead to a series of untenable conclusions. Judge Jolson understands FirstEnergy's representation that many of the individuals with knowledge of these agreements are former employees who are themselves Defendants in this action and thus unavailable for informal questioning by FirstEnergy's counsel and its designee. But FirstEnergy makes no representation that it even attempted to interview current employees, some of whom may possess similar knowledge. Nor did it undertake other reasonable means of informing Ashton. The straightforward remedy is to order a reopening of the 30(b)(6) deposition to which Jones and Dowling were entitled. FirstEnergy argues that other available means of discovery, including recently served interrogatories, render the 30(b)(6) deposition unnecessary. But depositions and interrogatories serve distinct functions in the discovery process, and FirstEnergy has not shown good cause for prohibiting its appearance at a deposition. In addition, "producing an unprepared Rule 30(b)(6) witness is tantamount to a failure to appear, which may warrant sanction under Fed. R. Civ. P. 37(d)." Judge Jolson accordingly grants Jones and Dowling's Motion to Compel, and orders FirstEnergy to make available one or more corporate representatives for a second Rule 30(b)(6) deposition, for which Jones and Dowling may have the seven hours for questioning contemplated by the Rule. She further finds that FirstEnergy's failure to produce a prepared witness or witnesses was not substantially justified. Rather, it appears that FirstEnergy made little effort to prepare its witness to testify as to anything outside of what was already disclosed in the DPA, even after a conferral process where the parties negotiated deposition topics. Accordingly, she orders FirstEnergy to pay Jones' and Dowling's reasonable costs and expenses associated with attending the second deposition, including court reporter costs, as well as their reasonable attorney's fees associated with preparing the instant motion. Judge Jolson further notes that this latest dispute is not an aberration. It instead appears to be part of a developing pattern of disputes which threaten to unduly slow the progress of discovery. Indeed, Court intervention was required several times to establish the basic parameters under which the 30(b)(6) deposition would occur in the first instance. Additionally, the parties recently represented to the Court that they reached an impasse regarding the designation of documents and testimony under the protective order. Judge Jolson therefore finds it necessary to adopt a new procedure for dealing with discovery disputes. The parties are ordered to appear before the Court for an in-person status conference on Sept. 8, 2022, at 11:00 a.m. in Courtroom 203. A joint status report on the progress of discovery, which outlines any active disputes, will be due on Sept. 7, 2022. Thereafter, there will be a presumptive in-person status conference every three weeks, with a joint status report due three business days prior. Unless there is unanimous agreement in the preceding status report that no disputes warrant the Court's immediate attention, the presumptive hearings will proceed, with costs assessed against non-prevailing parties. Additionally, the Court may consider other appropriate sanctions, including the personal attendance of parties. Because the parties are now required to submit status reports every three weeks, they are no longer required to submit the status reports required every 45 days by the Scheduling Order. A full-text copy of the Court's Aug. 19, 2022 Opinion &n Order is available at https://tinyurl.com/vmpkpz4s from Leagle.com. FRAMED & FANCY: Toro Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Framed & Fancy, Inc. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. Framed & Fancy, Inc., Case No. 1:22-cv-07255 (S.D.N.Y., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Framed and Fancy Inc is a business located in Owings Mills, Maryland that specializes in Bath & Body Products.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com GENERAL MOTORS: Can Compel Turner to Arbitrate Claims in Bossart ---------------------------------------------------------------- In the case, JOSEPH BOSSART, et al., individually and on behalf of all others similarly situated, Plaintiffs v. GENERAL MOTORS LLC, Defendant, Civil Action No. 20-CV-11057 (E.D. Mich.), Judge Bernard A. Friedman of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants the Defendant's motion to compel arbitration of Plaintiff Derrol Turner's claims and stays Turner's claims pending arbitration. The lawsuit is a consumer class action filed on behalf of a prospective class consisting of persons across the country who "purchased or leased any 2015 to 2019 Chevrolet Corvette Z06 or 2017 to 2019 Chevrolet Corvette Grand Sport designed, manufactured, marketed, distributed, sold, warranted, and/or serviced by GM. The Plaintiffs allege that, due to a wheel defect, Class Vehicle rims "are not strong enough and crack and deform under normal driving conditions." They further allege that this defect can "cause the rim to lose strength and become vulnerable to failure under loading conditions such as braking." The Plaintiffs contend that although it knew of this defect, GM "actively concealed its existence" and "is systematically denying warranty coverage," forcing them to "pay thousands of dollars out-of-pocket to repair, and if they purchase the replacements from GM, to replace the wheels with equally defective wheels." The amended class action complaint names 18 plaintiffs, proposes a nationwide class and 13 statewide subclasses, and raises forty claims under both federal and state law. The claims fall within one of four categories: (1) unjust enrichment, (2) breach of express warranty, (3) breach of implied warranty, and (4) violation of consumer protection law. On Oct. 26, 2020, the Defendant filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). In a May 19, 2021, opinion and order, the Court denied the Defendant's motion as to all but the Plaintiffs' unjust enrichment claim (Count III). In the instant motion, the Defendant seeks to compel the arbitration of Turner's claims. Turner purchased his Class Vehicle in South Carolina in 2016. He asserts that he "seeks to hold GM liable for breach of GM's new vehicle limited warranty, implied warranties of merchantability, and fraudulent business practices." The Defendant states that on May 16, 2022, pursuant to a discovery request, plaintiff produced a copy of the purchase agreement for his Class Vehicle. It notes that this "document shows that the Plaintiff signed a contract on Oct. 17, 2016 for the purchase of a new Chevrolet Corvette Grand Sport, which was sold to him by Crews Chevrolet, an authorized GM dealer." The Defendant contends that this contract contains an arbitration provision that covers the Plaintiffs claims in the case -- i.e., claims regarding the "purchase, lease, or condition of the vehicle." Although it concedes that it is not a signatory to the purchase agreement or arbitration provision, GM argues that it is entitled to enforce the agreement under the principle of equitable estoppel because "if the Plaintiff had not entered into the agreement to purchase his vehicle, he would have no claims against GM." Moreover, the Defendant contends, the Plaintiff's purchase agreement "expressly delegates questions of the enforceability and scope of the arbitration provision to the arbitrator," thereby precluding the Court from resolving any threshold question regarding arbitrability. Finally, the Defendant requests that the Court stays the Plaintiff's claims pending arbitration, as required under the Federal Arbitration Act. In response, the Plaintiff contends that, "as stated in the plain language of the arbitration agreement, that agreement was between only Turner and Crews Chevrolet for any claims that might arise between them. GM is neither a party to that agreement, nor an intended third-party beneficiary." Judge Friedman opines that the delegation clause in the case states in relevant part: "Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Agreement, and the arbitrability of the claim or dispute) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action." This clause he says clearly and unmistakably delegates questions of arbitrability to the arbitrator. The arbitrator must therefore "decide whether Turner's claims against GM are subject to arbitration even though it is not a party to the purchase agreement." Accordingly, Judge Friedman grants the Defendant's motion to compel arbitration of Turner's claims. Turner's claims are stayed pending arbitration pursuant to 9 U.S.C. Section 3. The arbitrator will issue an opinion regarding Turner's claims within six months of the date of the Order. The parties will notify the Court promptly thereafter. A full-text copy of the Court's Aug. 19, 2022 Opinion & Order is available at https://tinyurl.com/mw6jkvja from Leagle.com. GERBER PRODUCTS: Faces Class Action Over Misbranded Toddler Foods ----------------------------------------------------------------- Corrado Rizzi at classaction.org reports that a proposed class action alleges Gerber has misbranded more than 50 baby and toddler food items by including on product labels nutrient content claims that are "strictly prohibited" by the Food and Drug Administration (FDA). The 59-page suit contends that the nutrient content claims at issue mislead buyers into believing that certain foods, including many of Gerber's baby food pouches, provide physical health benefits for children younger than two, when in fact the products are "harmful both nutritionally and developmentally" for children under two years old. A list of the Gerber baby and toddler foods the lawsuit alleges are misbranded can be found here. According to FDA regulations, no nutrient content claims, whether expressed or implied, may be made on the label of a food intended specifically for use by infants and children younger than two years old, the filing states. Moreover, the FDA strictly governs the use of claims that include the words "more," "added," "plus" or synonyms to describe the level of a nutrient in a food, the complaint relays. Examples of the nutrient content claims that the lawsuit challenges are unlawful include express statements such as "2g of Protein" and implied claims such as a Gerber pouch containing food that is "[n]utritious, plant-based, and specially designed to provide 2 grams of protein." The labels of other products claim that the foods provide, for instance, "1 1/2 servings of fruit" or "2 servings of superfoods," which suggest that fiber and vitamins are present in a certain amount, the lawsuit says. Other Gerber product labels state the foods are "with Vitamin C" and vitamin E, which count as claims that the products contain "more" of the vitamins and are therefore subject to FDA labeling rules, the complaint adds. The case defines an express nutrient content claim as "any direct statement about the level (or range) of a nutrient in a food," and an implied claim as any that "[d]escribes the food or an ingredient therein in a manner that suggests that a nutrient is absent or present in a certain amount" or "[s]uggests that the food, because of nutrient content, may be useful in maintaining healthy dietary practices and is made in association with an explicit claim or statement about a nutrient." Further, the federal Food, Drug and Cosmetic Act dictates that a label claim is "misleading" if it is technically true yet "likely to deceive consumers," the case says. Similarly, California law stipulates that a food that's "misbranded" cannot legally be made, advertised, distributed, sold or possessed, the suit states. According to the complaint, a claim such as "4g Protein" could be misleading to Gerber baby and toddler food buyers in that children from zero months to four years old and older have different recommended intakes and many consumers have a limited understanding of the recommended amounts. The case says that the FDA prohibits nutrient content claims on products intended for children under two years old because "the agency lacks evidence that a more restrictive dietary pattern for other nutrients such as sodium or an increased intake for nutrients such as fiber are appropriate and recommended for children and toddlers." Lastly, the suit contends that consuming food from a pouch may lead a baby to eat more than when they're fed with a spoon, which can be problematic in that a baby could be less likely to recognize "satiety cues," and fill up on purees which, per the American Academy of Pediatrics, are "not good nutritional substitutes for breastmilk or formula in early life." "For these reasons, Defendant marketing the Products as providing physical health benefits for babies and toddlers [and] being a healthful and safe source of nutrients for babies and toddlers is misleading to reasonable consumers and the Products are actually harmful for children under two both nutritionally and developmentally." The complaint looks to cover all consumers in California who purchased any of the products listed here between August 18, 2018 and the present.[GN] GERBER PRODUCTS: Howard Sues Over Mislabeled Baby Food Products --------------------------------------------------------------- RACY HOWARD, individually and on behalf of all others similarly situated, Plaintiff v. GERBER PRODUCTS COMPANY, Defendant, Case No. 3:22-cv-04779 (N.D. Cal., Aug. 19, 2022) seeks to redress the Defendant's deceptive and unlawful practices in labeling and marketing the Gerber brand baby and toddler food products. The Plaintiff alleges in the complaint that the Defendant misbrands its baby and toddler food products by making nutrient content claims on the product packages that are strictly prohibited by the Food and Drug Administration (“FDA”). Moreover, the nutrient content claims on Defendant's products mislead purchasers into believing that the products provide physical health benefits for children under two years of age in order to induce parents into purchasing Defendant's products. In fact, the Products are harmful both nutritionally and developmentally for children under two, says the Plaintiff. The Defendant's misbranding caused the Plaintiff and members of the class to pay a price premium for the products. Gerber Products Company manufactures and sells baby food, as well as offers life and health insurance products. The Company produces baby foods that include fruits, vegetables, dry cereals, juices, and infant formula. [BN] The Plaintiff is represented by: Seth A. Safier, Esq. Marie A. Mccrary, Esq. Hayley Reynolds, Esq. GUTRIDE SAFIER LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 336-6545 Facsimile: (415) 449-6469 Email: seth@gutridesafier.com marie@gutridesafier.com hayley@gutridesafier.com GILEAD SCIENCES: Court Narrows Claims in Amended Trust Class Suit ----------------------------------------------------------------- In the case, JACKSONVILLE POLICE OFFICERS AND FIRE FIGHTERS HEALTH INSURANCE TRUST, Plaintiff v. GILEAD SCIENCES, INC., et al., Defendants, Case No. 20-cv-06522-JSW (N.D. Cal.), Judge Jeffrey S. White of the U.S. District Court for the Northern District of California grants in part and denies in part the motion to dismiss the First Amended Class Action Complaint filed by Gilead and by Cipla, Ltd., and Cipla USA, Inc. The Trust alleges the Defendants violated the Sherman Act, 15 U.S.C. section 1, California's Cartwright Act, Business and Professions Code sections 16700, et seq., and California's Unfair Competition Law, Business and Professions Code sections 17200, et seq. It also asserts a claim for equitable monetary relief ("Count IV") and asserts 27 "sister state" anti-trust claims ("Count V" or the "Sister State Claims") "to the extent the Cartwright Act is found not to apply to the claims of Class members located outside of the state of California." The litigation presents the tension that may arise "between the lawful restraint on trade of the patent monopoly and the illegal restraint prohibited broadly by the Sherman Act." In brief, the Trust's theory is that the Defendants settled patent litigation through a "reverse payment settlement," i.e. a settlement where "a party with no claim for damages walks away with money simply so it will stay away from the patentee's market," citing FTC v. Activis, Inc., 570 U.S. 136, 152 (2013). In Activis, the Supreme Court rejected the proposition that reverse payment settlements were immune from antitrust scrutiny and held "large and unjustified" reverse payments "can bring with them the risk of significant anticompetitive effects" subject to a rule of reason analysis. The Court summarized the considerations that led to its holding as follows: One who makes such a payment may be unable to explain and to justify it; such a firm or individual may well possess market power derived from the patent; a court, by examining the size of the payment, may well be able to assess its likely anticompetitive effects along with its potential justifications without litigating the validity of the patent; and parties may well find ways to settle patent disputes without the use of reverse payments. If, however, a patent holder "does not have the power to charge supracompetitive prices, 'it is unlikely to pay large sums to induce others to stay out of its market.'" Gilead manufactures a number of drugs to treat the human immunodeficiency virus ("HIV"), which include tenofovir disproxil fumarate ("TDF"), emtricitabine3 and/or efavirenz as ingredients. These drugs are "typically prescribed in combination with each other or with other drugs." Gilead markets these drugs under the following brand-names: Viread, a tablet containing 300 mg of TDF; Emtriva, a tablet containing 200 mg of emtricitabine; Truvada, a tablet containing 200 mg of emtricitabine and 300 mg of TDF; and Atripla, a tablet containing 600 mg of efavirenz, 200 mg of emtricitabine and 300 mg of TDF. In 2012, the FDA approved Truvada for pre-exposure prophylaxis ("PrEP") as a means to reduce the risk of HIV infection in high risk adults. In 2016 the FDA approved a modified dosage of Truvada to be used in pediatric patients. At the time the Trust filed the FACC, Truvada was the only drug approved for PrEP in the United States. Gilead held rights in a patent claiming the compound ß-FTC (U.S. Patent No. 5,814,639 ("'639 Patent")) and in a patent claiming the use of ß-FTC to treat HIV (U.S. Patent No. 5,210,085). These patents expired in 2010 and 2015, respectively. It also holds patent rights claiming the combination of TDF and emtricitabine in a single dosage, which it markets as Truvada, and has patent rights claiming the combination of TDF, emtricitabine, and efavirenz in a single dosage that forms Atripla. In 2007, Cipla Ltd. submitted an ANDA seeking approval to market a generic version of Viread, which did not contain a paragraph IV certification. Instead, Cipla Ltd. certified that it would wait to market a generic version until the patents expired. The FDA tentatively approved that ANDA in 2009. In 2009, Cipla, Ltd., through Cipla USA, submitted ANDAs to market generic versions of Emtriva, Truvada, and Atripla, which also did not include paragraph IV certifications and certified that Cipla Ltd. would wait until relevant patents expired. The FDA approved those ANDAs in March 2011, February 2014, and February 2012. (Id. ¶ 45.) On July 18, 2012, Cipla notified Gilead that it amended: (1) its ANDA relating to Emtriva to include paragraph IV certifications regarding the '245 and '395 Patents, i.e. the emtricitabine patents at issue in the Teva emtricitabine litigation. On July 30, 2012, Cipla notified Gilead it amended its ANDA for Viread to include paragraph IV certifications for four patents claiming TDF. Gilead filed a lawsuit asserting infringement of the emtricitabine patents (the "Cipla emtricitabine litigation") and filed a separate lawsuit asserting infringement of the TDF patents (the "Cipla TDF litigation,") which were assigned to the same judge as the Teva emtricitabine litigation (collectively, the "Cipla Litigation"). The parties settled the Cipla Litigation in July 2014. With the exception of a license agreement, the parties did not disclose the terms the settlement. The matter comes before the Court upon consideration of the motion to dismiss filed by Gilead and by Cipla, Ltd. and Cipla USA, Inc. (collectively "Cipla"). First, each party filed requests for judicial notice, which include some argument that goes beyond what is necessary to show a particular document can be judicially noticed. The Court has not considered that argument. The Defendants request judicial notice of documents from various FDA databases. The Trust objects and argues these documents, and the facts on which the Defendants rely, could have and should have been submitted with their motion. Judge White agrees, but because the Trust does not dispute the authenticity of the documents, which are publicly available, he grants the Defendants' request but denies the Trust's motion to file the proposed sur-reply. He takes judicial notice of the existence of the documents and of the fact that statements were made about the dates on which Cipla began to market these drugs. After briefing on the motions closed, the Trust filed a request for judicial notice. It asks the Court to take judicial notice of a document from the FDA's National Drug Code Directory Database that shows Cipla's "start marketing date" for the generic version of Atripla was March 30, 2021. The Defendants do not object. Accordingly, Judge White grants that request and takes judicial notice of the existence of the document and the fact that statements are contained therein about the start date. Next, the Defendants argue the Plaintiffs merely speculate that the Cipla litigation was settled by a reverse payment. Judge White concludes the Trust sufficiently alleges the existence of a reverse payment. He finds that although the Trust uses language that would be considered speculative in other contexts, that is not fatal to its claim. Because the terms of the settlement are not part of the record, the Trust and the Court necessarily must rely on allegations about the Defendants' conduct to determine whether the existence of a reverse payment is plausible. Although the Trust relied on an allegation that Cipla received approval to market emtricitabine in 2018 but had not done so, the record now includes information showing Cipla stated it began to sell emtricitabine on Aug. 30, 2020. Those allegations show that Gilead may have had an incentive to settle, but they also rest on assumptions and speculations about whether the FDA would have approved co-packaged drugs, rather than allegations that the FDA had approved co-packaged versions. Because he must construe the facts and all reasonable inferences in the Trust's favor, Judge White concludes these allegations are sufficient to show that even if emtricitabine is taken out of the equation, it is plausible the Cipla settlement involves a reverse payment settlement. In addition, approximately two months after Gilead and Cipla settled the Cipla Litigation, Gilead publicly announced that it was licensing seven generic manufacturers, including Cipla, to sell generic versions of two of Gilead's hepatitis C drugs in 91 developing countries. Reports indicated that one of the drugs "could potentially be worth US$300-US$500m, and offer a $100-$185m formulation and active pharmaceutical ingredient (API) opportunity" and that Cipla was likely to earn the API rights to the drug. Iin light of that timing and the Trust's allegations that many other companies had the capability to manufacture the APIs, Judge White concludes it is reasonable to infer that Cipla obtained those rights as part of the settlement with Gilead. Judge White now turns to whether the allegations are sufficient to plausibly allege the payment was large and unjustified. He finds that the parties reached a settlement shortly before the Cipla cases were set to go to trial, when weaknesses in Gilead's patents allegedly were exposed by the Teva litigation and when future litigation costs had diminished. The Trust also alleges that when the parties settled the Cipla emtricitabine suit, Gilead's most recent 10-K showed it had $27.4 million sales in Emtriva. Although the FDA had approved other ANDAs for generic Emtriva, Cipla was the first-to-file. According to the Trust, if Cipla had prevailed at trial, the exclusivity period "would have been worth millions" to Cipla. The Trust also alleges that the value of the API manufacturing rights for the hepatitis C drugs was approximately $185 million and provides estimates of the value to Cipla of a co-packaged drug even in a competitive market. Therefore, the Trust alleges facts that plausibly suggests the payment was large and unjustified, Judge White concludes. Accordingly, he denies the Defendants' motion to dismiss the Sherman Act claim. The Defendants move to dismiss all of the claims asserted under California law (the Cartwright Act claim, the UCL claim, and Count IV), as well as most of the Sister State claims contained in Count V on the basis on the basis that the Trust lacks standing to assert these claims because it fails to allege a purchase in California or allege that it suffered an injury in California. The Trust concedes it fails to allege sufficient conduct occurring in California to support the claims against Cipla under the Cartwright Act and the UCL. Accordingly, Judge White grants Cipla's motion to dismiss those claims. The Trust urges the Court to revisit that decision and to follow Staley v. Gilead Scis., Inc., 446 F.Supp.3d 578, 590 (N.D. Cal. 2020), by addressing the issue at the class certification stage. Judge White finds no basis to revisit its prior analysis of this issue. The Trust is a resident of Florida. It fails to include any allegations about where it purchased Truvada for its members, but based on the allegations that its principal place of business is located in Jacksonville, Florida, it is reasonable to infer the purchases were made in Florida. Judge White concludes the Trust lacks standing to pursue the Sister State claims in Count V, with the exception of the claim under Florida law. This ruling is without prejudice to the Trust filing an amended complaint that includes additional class representatives. For the foregoing reasons, Judge White grants in part and denies in part the Defendants motion. The Trust will either file an amended complaint or statement that it does not intend to amend by no later than Sept. 9, 2022. The Court tolls the Defendants' time to respond until the Trust has amended or filed a notice that it will stand on the FACC. The Defendants will then have 21 days to answer or otherwise respond. Finally, Judge White the parties to appear for a case management conference on Nov. 4, 2022 at 11:00 a.m. The parties will file a joint case management conference statement by Oct. 28, 2022. A full-text copy of the Court's Aug. 19, 2022 Order is available at https://tinyurl.com/mbayuedp from Leagle.com. GOOD DEAL: Partly Wins Partial Summary Judgment Bid in Dennis Suit ------------------------------------------------------------------ In the case, ELAINE DENNIS and COURTNEY WHITE, Plaintiffs v. GOOD DEAL CHARLIE, INC., d/b/a OVERSTOCK FURNITURE & MATTRESS, SOUTHEASTERN LIQUIDATORS LLC, STRATEGIC PARTNER HOLDING, LLC, and CHEAP SLEEP, L.L.C., Defendants, Case No. 20-CV-295-GKF-JFJ (N.D. Okla.), Judge Gregory K. Frizzell of the U.S. District Court for the Northern District of Oklahoma grants in part and denies in part Good Deal Charlie's Motion for Partial Summary Judgment. Good Deal Charlie moves for summary judgment on Counts Four and Five of the Plaintiffs' Amended Class Action Complaint. Count Four is a claim for violations of the Oklahoma Consumer Protection Act (OCPA), 15 O.S. Section 751, et seq., and Count Five is a claim of negligence per se. In Count Four, the Plaintiffs allege that Good Deal Charlie's violations of the OCPA include, but are not limited to, the following: a. Representing, knowingly or with reason to know, that the subject of a consumer transaction is original or new if the person knows that it is reconditioned, reclaimed, used, or secondhand, in violation of 15 O.S. Section 753(6); b. Willfully failing to state a material fact and/or willfully concealing, suppressing, and/or omitting a material fact in order to encourage consumer transactions, in violation of 15 O.S. Section 753(7); c. Advertising goods or services with the intent not to sell them as advertised in violation of 15 O.S. Section 753(8); d. Making false or misleading statements concerning the reasons for, existence of, or amounts of price reductions in violation of 15 O.S. Section 753(11); and e. Conducting a going-out-of-business sale for more than 90 days in violation of 15 O.S. Section 753(8), (13), (14). Good Deal Charlie argues that the actions and transactions about which the Plaintiffs complain are regulated under laws administered by the Oklahoma Department of Health and therefore fall within an express exemption to the OCPA. The OCPA provides that "nothing in this act will apply to actions or transactions regulated under laws administered by the Corporation Commission or any other regulatory body or officer acting under statutory authority of this state." Judge Frizzell explains that courts interpreting Section 754 have found the exemption applicable when the alleged conduct constituting a violation of the OCPA is regulated by a state or federal agency. However, the exemption does not apply when a defendant's conduct is governed in some respects by a state or federal agency but the specific conduct at issue is not regulated under laws administered by the regulatory body acting under statutory authority. The regulatory regime Good Deal Charlie invokes requires the Oklahoma State Board of Health to promulgate rules for, inter alia, "the label requirements" on bedding, "the sanitation of renovated or secondhand bedding," and "prescribing means, methods and practices to implement the provisions of the Oklahoma Bedding Regulation Act," 63 O.S. Section 1-1001.5. Pursuant to that statutory directive, the Oklahoma State Board of Health has promulgated rules regarding the labeling and tagging of bedding; the germicidal treatment of second-hand bedding; the sanitation of premises on which bedding is manufactured, repaired, or renovated; permit fees for manufacturing, repairing, selling, and the germicidal treatment of bedding; adhesive revenue stamps to be affixed to bedding labels; and the identification of second-hand bedding and bedding materials. To the extent the Plaintiffs' OCPA claim for "willfully failing to state a material fact and/or willfully concealing, suppressing, and/or omitting a material fact in order to encourage consumer transactions" in violation of 15 O.S. Section 753(7) relates to the labeling and/or sanitation of the mattresses purchased by the Plaintiffs, the claim is exempted. However, to the extent their OCPA claim alleges actions that are not regulated by the Oklahoma State Board of Health under the statutory authority of the Oklahoma Bedding Regulation Act, the exemption is inapplicable. Such conduct includes, but is not limited to, alleged representations by Good Deal Charlie's sales staff that the mattresses were "scratch and dent" rather than "used," and that the mattresses were "of a particular standard, quality, or grade" when they were not. For the reasons, the motion is, therefore, granted in part and denied in part as to Count Four. The same analysis applies to the motion for summary judgment on Count Five, the negligence per se claim, Judge Frizzell finds. For the violation of a statute to constitute negligence per se, the injury must be of a type intended to be prevented by the statute. Because labeling and/or sanitation of the mattresses purchased by the Plaintiffs is regulated by the State Department of Health, the exemption set forth in Sections 754 of the OCPA is applicable, and any injury resulting from that conduct is not of a type intended to be prevented by the OCPA. Accordingly, the motion is granted in part and denied in part as to Count Five. Finally, Good Deal Charlie contends that no facts exist to support the Plaintiffs' OCPA claim that Good Deal Charlie conducted a "closing out sale." However, Plaintiff Courtney White testified at her deposition that she purchased a mattress from Good Deal Charlie because she and her mother "were driving down the road, and I saw a sign that said 'Liquidation Sale,' and I thought that I could find something at a discounted price because it was a liquidation sale." The OCPA defines a "closing out sale" to include "any sale held or advertised as a liquidation or other like or similar title." Because facts exist to support the claim that Good Deal Charlie conducted a "closing out sale," the motion for partial summary judgment is denied in this respect. A full-text copy of the Court's Aug. 19, 2022 Opinion & Order is available at https://tinyurl.com/3x94bevn from Leagle.com. GRACIA HARVESTING: Conditional Status of FLSA Collective Sought --------------------------------------------------------------- In the class action lawsuit captioned as LUCIA GONZALEZ-RODRIGUEZ and NAZARIA LARA-MARTINEZ, on behalf of themselves and all other similarly situated persons v. JOSE M. GRACIA, JOSE M. GRACIA HARVESTING, INC. AND GRACIA AND SONS, LLC, Case No. 5:21-cv-406-BO (E.D.N.C.), the Plaintiffs ask the Court to enter an order: 1. Conditionally certifying as a Fair Labor Standards Act (FLSA) collective action pursuant to 29 U.S.C. section 216(b) for persons who, in any pay period falling within the three chronological years immediately preceding the date on which this action was filed and continuing thereafter through the date on which final judgment is entered in this action, and who timely file a written consent to be a party pursuant to 29 U.S.C. section 216(b), and who are: "Persons who were or will work for one or more of the the Defendants as cooks, held H-2A visas, were not reimbursed for all of their H-2A related expenses (recruitment fees, travel, visa, hotel, meals, and/or border crossing costs) during their first workweek (Reimbursement Collective Action) at any time between October 5, 2018, and the date of final judgment in this action;" and "Persons who were or will work for one or more of the the Defendants as cooks and were or will be paid less than the required minimum wage for the hours worked in one or more workweeks or were not or will not be paid at the required overtime wage rate for the hours they performed or will perform work in excess of 40 hours any workweek in which they were not employed in agriculture (Wage Payment Collective Action) at any time between October 5, 2018, and the date of final judgment in this action." 2. Approving the distribution of the attached Notice and Consent to Join forms by Moving Plaintiffs within two weeks from the date on which Defendants provide contact information for the persons whom the Court conditionally certifies as members of the collective action under 29 U.S.C. section 216(b), by U.S. mail, and authorizing distribution by mail, electronically, and through social media; 3. Directing the Defendants to provide within two weeks after entry of the Court's Order an Excel document or other computer readable file containing the full names, date(s) of employment, employer ID, passport number, U.S. and Mexico addresses, cell and WhatsApp numbers (U.S. and Mexico), and date of birth of all putative collective action members; and 4. Directing the Defendants to post the notice at all kitchens and employer-provided housing for H-2A cooks under the ownership or control of any of the Defendants, and ordering Defendants to provide the notice to current cook employees with their paychecks within two weeks after entry of the Court's Order. Jose M. Gracia Harvesting Inc. provides workers for the harvesting of agricultural commodities in North Carolina, Georgia and Florida. A copy of the Plaintiffs' motion dated Aug. 9, 2022 is available from PacerMonitor.com at https://bit.ly/3e5aKNa at no extra charge.[CC] The Plaintiffs are represented by: Carol L. Brooke, Esq. Clermont F. Ripley, Esq. NORTH CAROLINA JUSTICE CENTER P.O. Box 28068 Raleigh, NC 27611 Telephone: (919) 856-2144 Facsimile: (919) 856-2175 E-mail: clermont@ncjustice.org carol@ncjustice.org - and - Caitlin A. Ryland, Esq. Aaron V. Jacobson, Esq. LEGAL AID OF NORTH CAROLINA P.O. Box 26626 Raleigh, NC 27611 Telephone: (919)856-2180 Facsimile: (919)856-2187 E-mail: CaitlinR@legalaidnc.org AaronJ@legalaidnc.org HEALTHPLANONE LLC: McHugh Files TCPA Suit in D. Connecticut ----------------------------------------------------------- A class action lawsuit has been filed against HealthPlanOne, LLC, et al. The case is styled as Paul McHugh, individually and on behalf of a class of all persons and entities similarly situated v. HealthPlanOne, LLC, Crisp Marketing, LLC, Case No. 3:22-cv-01080-SALM (D. Conn., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. HealthPlanOne, LLC., now known as HPOne -- https://www.hpone.com/ -- is a sales and marketing organization that operates across multiple segments of the Medicare and health insurance marketplaces.[BN] The Plaintiff is represented by: Anthony Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln St., Suite 2400 Hingham, MA 02043 Phone: (615) 485-0018 Email: anthony@paronichlaw.com HEALTHY PAWS: Benanav Partly Compelled to Reply to Interrogatories ------------------------------------------------------------------ In the case, STEVEN BENANAV, et al., Plaintiffs v. HEALTHY PAWS PET INSURANCE LLC, Defendant, Case No. C20-00421-LK (W.D. Wash.), Judge Lauren King of the U.S. District Court for the Western District of Washington, Seattle, grants in part and denies in part Healthy Paws' motion to compel responses from the Plaintiffs to its Interrogatory Numbers 2, 3, 5, and 6 and its Request for Admission Number 2. Plaintiffs Steven Benanav, Bryan Gage, Monica Kowalski, Lindsay Purvey, Stephanie Caughlin, and Katherine Thomas bring individual and putative class action claims against Defendant Healthy Paws for misleading them to believe that their pet insurance premiums would only increase as the costs of veterinary medicine increased. Healthy Paws markets and administers pet insurance policies to consumers on behalf of insurance companies, including non-parties Markel American Insurance Company, ACE American Insurance Co., Indemnity Insurance Co. of North America, and Westchester Fire Insurance Co. ACE, Indemnity, and Westchester are subsidiaries of parent company CHUBB Ltd. Between 2011 and 2017, the Plaintiffs purchased pet insurance policies through Healthy Paws. They allege that, at the time they purchased their policies, Healthy Paws did not inform them that it would increase the policy premiums based on a pets' age, and instead represented that premiums would "only increase based on the rising cost of veterinary care." They contend that Healthy Paws made this misrepresentation on its website -- in the FAQ section and its sample policy documents -- and in the Plaintiffs' insurance policies. They claim that had they known the monthly premiums would "drastically increase" as their pets aged, they never would have signed up for the policies. They claim that Healthy Paws' conduct violated Washington's Consumer Protection Act, Wash. Rev. Code Sections 19.86.010-920, California's Unfair Competition Law, Cal. Bus. & Prof. Code Sections 17200-17210, the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. Sections 505, and New Jersey's Consumer Fraud Act, N.J. Stat. Ann. Sections 56:8-1-2.13. The current iteration of the Plaintiffs' complaint grew out of two orders dismissing their claims without prejudice. In the first of these orders, the Court held that the Plaintiffs failed to adequately plead fraud under Federal Rule of Civil Procedure 9(b) and that their claims were barred by the "filed rate doctrine" in Washington, California, and New Jersey law. The filed rate doctrine bars lawsuits challenging the reasonableness of insurance rates filed with and approved by a governing regulatory agency. In its order granting Healthy Paws' motion to dismiss the Plaintiffs Kowalski's, Gage's, Purvey's, and Caughlin's subsequently-amended claims, the Court found that their claims once again failed to adequately plead fraud under rule 9(b). But the Court rejected Healthy Paws' argument that the amended claims were barred by the filed rate doctrine, finding that "the gravamen of the second amended complaint is clear: The rates the Plaintiffs paid allegedly exceeded those filed with and approved by their respective state insurance agencies because of the misrepresented pet age factor." The Plaintiffs subsequently amended their complaint a third time. As the discovery phase nears its end in the case, disputes have arisen between the parties. On July 19, 2022, the parties filed a joint submission under Local Civil Rule 37(a)(2) on Healthy Paws' motion to compel responses to its Interrogatory Numbers 2, 3, 5, and 6 and its Request for Admission Number 2. Healthy Paws moves to compel responses from the Plaintiffs to its Interrogatory Numbers 2, 3, 5, and 6 and its Request for Admission Number 2. In the joint submission, Healthy Paws argues that the Plaintiffs improperly refuse to provide discovery responses that clarify the factual bases of allegations that "go to the very core of their case," including their allegations that they paid premiums that exceeded the filed rates and that Healthy Paws misrepresented how premiums would be calculated. Healthy Paws adds that the Plaintiffs are required to have a "good faith basis" under Federal Rule of Civil Procedure 11 for the factual assertions in their complaint, and that Healthy Paws is entitled to discovery into that basis. The Plaintiffs respond that the discovery Healthy Paws seeks is premature: At the date of their filing, over two months of fact discovery remained, third-party discovery of the relevant insurers was incomplete, no depositions had been taken, and expert reports were not due for at least three months. In addition, they had not yet completed their review of Healthy Paws' document production, which they claim was only substantially completed over the Fourth of July holiday weekend. The Plaintiffs do not deny their obligation to ultimately respond to the disputed discovery requests. However, as to Interrogatory Numbers 2 and 3 and Request for Admission Number 2, they expect to supplement their responses after obtaining "a complete factual record and expert reports and testimony." Interrogatory Number 2 asks the Plaintiffs to identify "each and every monthly premium" that they contend they were charged in excess of the filed rate applicable to their insurance policies, and to identify "any documents" that support their contention that they were charged premiums in excess of the filed rate. It also asks for (1) the date or date range the premium was charged; (2) the amount of the premium; (3) the rate filing that was applicable; (4) the amount the Plaintiffs contend they should have been charged; (5) the excess amount the Plaintiffs contend they were charged; and (6) when the Plaintiffs became aware that the premium was in excess of the filed rate. The Plaintiffs do not dispute their obligation to answer the Interrogatory fully; instead, they argue that Interrogatory Number 2 is a contention interrogatory that they will not be able to answer fully until the completion of fact discovery and expert discovery, and they affirm that their current responses reflect the state of their knowledge as of the date of their filing. Healthy Paws argues that Plaintiffs' responses fail to support a good faith basis for their allegation that they were charged in excess of filed rates, because they do not identify a single monthly premium that they paid in excess of the applicable filed rate. Based on the information provided at oral argument, Judge King holds that it appears that the Plaintiffs should be able to respond to Interrogatory Number 2 without expert input at least where the base rate for a given Plaintiff does not require resort to non-public information. If certain answers to Interrogatory Number 2 "can only be provided by resort to the Plaintiffs' experts, the Plaintiffs should so state in their answers" to the Interrogatory. Because the Defendants "will have ample opportunity to obtain this factual information when they take their discovery of the Plaintiffs' experts," they will suffer no prejudice if only experts possess certain answers to Interrogatory Number 2. Finally, because the Plaintiffs do not contest the factual inaccuracies Healthy Paws identified, they must correct those inaccuracies when they supplement their responses. Interrogatory Number 3 asks the Plaintiffs to identify "each and every factor" they contend was inappropriately included in calculating their premiums and to identify "any documents" supporting those contentions. For each identified factor, Healthy Paws asks the Plaintiffs to identify: The time period during which they contend the factor was included in their premiums, the amount by which they contend it increased their premiums, their reason for asserting that it was inappropriately included, and when they became aware of its inclusion. Healthy Paws argues that the Plaintiffs' responses identify "pet age" as an unapproved factor but fail to specify whether that refers to pet age at enrollment, pet age at anniversary, or both. The Plaintiffs confirmed in their response that they meant pet age at anniversary, although they had yet to supplement their responses to that effect at the time of the joint submission. Having agreed to supplement their responses to identify pet age at anniversary as the relevant pet age factor, the Plaintiffs will supplement to that effect within seven days of the Order. With respect to the other information requested in Interrogatory Number 3 -- another contention interrogatory -- the Plaintiffs may defer a complete response until after substantial discovery is complete. The Plaintiffs must provide a complete response as soon as practicable, and no later than before the close of fact discovery on Sept. 13, 2022. The same qualifications identified with respect to Interrogatory Number 3 apply to the Plaintiffs' response: They must respond fully to the best of their knowledge except where answers can only be provided by their expert(s), in which case they must so state. If they lack the information to make a full response, they must so state under oath and set forth in detail the efforts they made to obtain the requested information. In their supplemental responses the Plaintiffs must also correct the factual inaccuracies Healthy Paws identified. Healthy Paws no longer seeks the Court's intervention as to Interrogatory Number 5, so this request as moot. The parties no longer dispute the adequacy of the Plaintiffs' response to Interrogatory Number 6, except that Healthy Paws claims that Plaintiffs Gage, Purvey, and Kowalski's supplemental responses fail to identify the date ranges when they considered or enrolled in alternative pet health insurance programs. In their submission regarding Interrogatory Number 6, the Plaintiffs state that they will update their responses with information on the date or date ranges they enrolled or considered enrolling in that program, to the best of their recollection. Accordingly, Plaintiffs Gage, Purvey, and Kowalski must supplement their responses with the date information requested by Healthy Paws. They must do so within seven days of the Order. Healthy Paws' Request for Admission Number 2 asks the Plaintiffs to admit that prior to their purchase of their insurance policies, Healthy Paws did not expressly state to them that their premiums would never increase due to a pet age at anniversary factor. In their amended responses, the Plaintiffs admit that their "policy documents" do not make that statement. However, the Request asks about express statements by Healthy Paws, not about the Plaintiffs' policy documents. If -- as the Plaintiffs contend -- they "cannot admit this RFA," they must specifically deny it or state in detail why they cannot truthfully admit or deny it. The Plaintiffs must provide an amended response to Request for Admission Number 2 that complies with Federal Rule of Civil Procedure 36 within seven days of the Order. Judge King grants in part Healthy Paws' motion to compel and orders the Plaintiffs to provide supplemental or amended responses to Interrogatory Numbers 2, 3, and 6 and Request for Admission Number 2 on the terms set forth. She further orders the parties to file a joint status report, updating the Court on their meet and confer regarding the calculations involved in Interrogatory Numbers 2 and 3. A full-text copy of the Court's Aug. 19, 2022 Order is available at https://tinyurl.com/3f8e6zsy from Leagle.com. HEIDI E. WASHINGTON: Scott Files Suit in W.D. Michigan ------------------------------------------------------ A class action lawsuit has been filed against Heidi E. Washington, et al. The case is styled as Paul Scott, Corey Dennis, Herman Franklin, Jason L. Sanders, Douglas MacArthur Guile, II, on behalf of themselves and all others similarly situated v. Heidi E. Washington, Director of Michigan Department of Corrections; C. King, Warden; B. Smith, Deputy Warden; J. Winger, Assistant Deputy Warden; T. Page, Grievance Coordinator/Inspector; Unknown Jhonson, Inspector; Unknown Mitchell, Sergeant; S. Haner, A.D.A. Coordinator; Amanda Beamont, Healthcare Unite Manager; Unknown Fergason, Corrections Officer; Unknown Hack, Corrections Officer; Unknown P. Jhonson, Nurse; Unknown Goulet, Corrections Officer; Case No. 1:22-cv-00730-SJB (W.D. Mich., Aug. 11, 2022). The nature of suit is stated as Prisoner: Prison Condition for Prisoner Civil Rights. Heidi E. Washington -- https://www.michigan.gov/corrections/ -- has served as the director of the Michigan Department of Corrections since July 2015.[BN] The Plaintiffs appears pro se. HERSHEY CO: Illinois District Court Dismisses Lederman Class Suit ----------------------------------------------------------------- In the case, SANDRA LEDERMAN, individually and on behalf of all others similarly situated, Plaintiff v. THE HERSHEY COMPANY, Defendant, Case No. 21-cv-4528 (N.D. Ill.), Judge Robert M. Dow, Jr., of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Defendant's motion to dismiss. The Defendant manufactures, labels, markets, and sells "Hot Fudge Topping" under the Hershey's brand. Ms. Lederman initiated the putative class action against the Defendant on Aug. 24, 2021, after its "Hot Fudge Topping" failed to meet her expectations. She believes that the Product's label is misleading because it is not real fudge; rather, in her view, it is simply "chocolate sauce." She alleges the Product "lacks ingredients essential to hot fudge," and thus is deceptively labeled. The Plaintiff alleges that she purchased the Product on one or more occasions between May and June 2021. She claims that she bought Hershey's Hot Fudge Topping because "she expected it would contain ingredients essential to (hot) fudge," but instead had purchased a product that "gets its consistency and texture from vegetable fats and uses dairy ingredients with their valuable fat content removed." Because the topping "lacks ingredients essential to hot fudge -- cream and whole milk -- and substitutes lower quality and lower priced vegetable oil, skim milk, and whey," the resulting confection "provides less satiety, a waxy and oily mouthfeel, and leaves an after taste." The Plaintiff believes that these "misleading representations and omissions" allow the Defendant to sell the Product at "a higher price than it would otherwise be sold for," and as a result, she suffered damage when she paid more for the Product than its worth. The Plaintiff asserts that this misnomer gives rise to several claims: violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"); violation of consumer-protection laws in Iowa and Arkansas; state-law claims for breach of express and implied warranties and under the Magnuson Moss Warranty Act ("MMWA"); negligent misrepresentation; fraud; and unjust enrichment. She asserts federal court jurisdiction on the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. Section 1332(d)(2). Before the Court is the Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Plaintiff defines fudge as a "soft candy" made from sugar, butter, and milk or cream (and "sometimes nuts"). According to her, the value of fudge turns on its dairy content. She maintains that "the quality of fudge depends on the amount and type of fat-contributing ingredients" and those "fat ingredients are typically from dairy or vegetable oils." "If the fat content is too high, it can lead to oil separation and a greasy texture," but if the fat content is too low, the resulting fudge "provides less satiety, a waxy and oily mouthfeel, and leaves an aftertaste." In the Plaintiff's view, Hershey's Hot Fudge Topping falls into the latter category its fat content is too low to call it fudge. The Plaintiff asserts pursuant to the ICFA that the Defendant used "false and deceptive representations" to sell its Hot Fudge Topping product. She maintains that she purchased the product believing that it "contained components essential to fudge, such as dairy ingredients without their fat content removed, instead of getting its texture and fat content from vegetable oil." Had she known that the product lacked those "essential" ingredients, the Plaintiff "would not have purchased the Product or paid as much." The Defendant challenges the Plaintiff's narrow definition of "fudge." It maintains that the product's label -- Hot Fudge Topping" -- perfectly describes the thick chocolate sauce contained therein," and thus is not misleading. It seeks dismissal on her ICFA claim on grounds that she has not sufficiently alleged a deceptive act or practice. Judge Dow opines that the Plaintiff's citations to a variety of "experts" do not demonstrate that milkfat is a required ingredient in fudge -- she even acknowledges that the fat ingredients in fudge "are typically from dairy or vegetable oils." Furthermore, even if she had established that the reasonable consumer's fudge expectations were consistent with experts such as Molly Mills, she has not alleged that those expectations extend to hot fudge, which is the product at issue. The Plaintiff also fails to plausibly allege with particularity that the Hot Fudge Topping product label is deceptive in any way. She fails to support that a chocolate-tasting fudge product made from oils and whey would mislead a reasonable consumer. The Plaintiff's claims pursuant to Iowa and Arkansas state consumer fraud statutes also fail, Judge Dow holds. As the Plaintiff herself admits, the consumer fraud statutes in Iowa and Arkansas are "similar" to the ICFA, and thus also measure claims of deception based on the reasonable consumer. As discussed, the Plaintiff did not sufficiently allege that the reasonable consumer would find the Hot Fudge Topping label misleading, thus she is unable to demonstrate any deceptive act on the Defendant's part. The Plaintiff brings claims for breach of express warranty, breach of implied warranty, and violation of the Magnuson-Moss Warranty Act ("MMWA"), asserting that "the Product was manufactured, labeled, and sold by the Defendant and expressly and impliedly warranted to the Plaintiff and the class members that it contained components essential to fudge, such as dairy ingredients without their fat content removed, instead of getting its texture and fat content from vegetable oil." She contends that because of the "Defendant's outsized role in the market" for products like its Hot Fudge Topping, that it had a "duty to disclose and/or provide non-deceptive descriptions and marketing of the Product." She further alleges that the product "did not conform to its affirmations of fact and promises due to the Defendant's actions and were not merchantable because they were not fit to pass in the trade as advertised." The Defendant argues that the Plaintiff's warranty claims fail for the same reason as her ICFA claim, which is that its use of the term "hot fudge" is not a guarantee or promise that its product will contain a particular amount of milkfat. Judge Dow holds that the Hot Fudge Topping label does not warrant that the product will contain "dairy ingredients without their fat content removed." The Plaintiff does not allege that the product's ingredient list represents inaccurately the ingredients actually used to make the product. Rather, "the Product comported with its packaging." She purchased the thick chocolate substance that the product advertised, and this is fatal to her claim, even if she wished the product were "thicker and richer." Consequently, the Plaintiff's MMWA claim also fails. Accordingly, it must be dismissed. As to the Plaintiff claims negligent misrepresentation, Judge Dow opines that the Plaintiff cannot satisfy even the first element of a negligent misrepresentation claim because she has not plausibly alleged that Defendant made a false statement of material fact. She has not sufficiently alleged that the product label inaccurately represents the product inside the jar. The Plaintiff bases her fraud claim on the alleged misrepresentation of the product and adds that the "Defendant's fraudulent intent is evinced by its knowledge that the Product was not consistent with its representations." The Defendant argues that she fails to meet Rule 9(b)'s heightened pleading standard because the complaint "does not identify a single false, misleading, or deceptive statement ono Hershey's label." Judge Dow opines that the Plaintiff fails to plead with particularity that the product contains a false statement of material fact. Furthermore, "scienter, knowledge by the Defendant that a statement he has made is false, is an essential element of common-law fraud.'" The Plaintiff baldly asserts that the Defendant had fraudulent intent and alleges no other facts in support of her claim, and that is not enough. These allegations are "conclusory and non-factual." The Plaintiff's unjust enrichment claim is "tied to the fate of the claim under the Consumer Fraud Act." Because all of her other claims fail, so too does her unjust enrichment claim. Finally, the Defendant argues that the Plaintiff lacks standing to seek injunctive relief. Judge Dow need not address this argument because the Plaintiff has failed to state a claim upon which relief can be granted. For the foregoing reasons, Judge Dow grants the Defendant's motion to dismiss. However, in an abundance of caution, he allows the Plaintiff an opportunity to replead if she believes that she can do so as to any claim dismissed in his Opinion. Any amended complaint must be filed by Sept. 19, 2022. If an amended complaint is not filed by that date, or any extension of the deadline granted by the Court, the dismissal will be converted to "with prejudice" and a final judgment consistent with Federal Rule of Civil Procedure 58 will be entered. If the Plaintiff files an amended complaint, the Defendant's responsive pleading will be due by Oct. 17, 2022, and the Court will set a status hearing shortly thereafter. A full-text copy of the Court's Aug. 19, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/3m4n53kz from Leagle.com. HP INC: Keiser Warranty Suit Removed to N.D. Illinois ----------------------------------------------------- The case styled SHAWNA KEISER, individually and on behalf of all others similarly situated v. HP INC., Case No. 2022CH06588, was removed from the Circuit Court of Illinois for the County of Cook, County Department, Chancery Division, to the U.S. District Court for the Northern District of Illinois on August 22, 2022. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:22-cv-04457 to the proceeding. The case arises from the Defendant's alleged violation of the federal Magnuson-Moss Warranty Act. HP Inc. is a multinational information technology company headquartered in Palo Alto, California. [BN] The Defendant is represented by: Suyash Agrawal, Esq. Caitlin A. Kovacs, Esq. MASSEY & GAIL LLP 50 E. Washington Street, Suite 400 Chicago, IL 60602 Telephone: (312) 283-1590 E-mail: sagrawal@masseygail.com ckovacs@masseygail.com - and – Hunter R. Eley, Esq. Connie Tcheng, Esq. Lloyd Vu, Esq. DOLL AMIR & ELEY LLP 725 S. Figueroa St., Suite 3275 Los Angeles, CA 90017 Telephone: (213) 542-3380 E-mail: heley@dollamir.com ctcheng@dollamir.com lvu@dollamir.com HUMANIGEN INC: Bids for Lead Plaintiff Appointment Due October 25 ----------------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Humanigen, Inc. ("Humanigen" or the "Company") (NASDAQ: HGEN) and certain of its officers. The class action, filed in the United States District Court for the District of New Jersey, and docketed under 22-cv-05258, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Humanigen securities between May 28, 2021 and July 12, 2022, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased or otherwise acquired Humanigen securities during the Class Period, you have until October 25, 2022 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Humanigen is a clinical-stage biopharmaceutical company that focuses on preventing and treating an immune hyper-response called "cytokine storm", a physiological reaction in which the immune system causes an uncontrolled and excessive release of pro-inflammatory signaling molecules called cytokines, the sudden release of which in large quantities can cause multisystem organ failure and death. The Company's lead product candidate is its proprietary antibody lenzilumab, which is under development as a treatment for, among other things, cytokine storm associated with COVID-19. Among other trials, Humanigen is investigating lenzilumab for the treatment of hospitalized COVID-19 patients in the ACTIV-5/BET-B study, which is part of a directed public-private partnership with the National Institutes of Health. In May 2021, Humanigen submitted an application to the U.S. Food and Drug Administration ("FDA") requesting Emergency Use Authorization ("EUA") for lenzilumab for the treatment of patients hospitalized with COVID-19 (the "lenzilumab EUA"). The complaint alleges that, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) lenzilumab was less effective in treating hospitalized COVID-19 patients than Defendants had represented; (ii) as a result, the FDA was unlikely to approve the lenzilumab EUA and the ACTIV-5/BET-B study was unlikely to meet its primary endpoint; (iii) accordingly, lenzilumab's clinical and commercial prospects were overstated; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. On September 9, 2021, Humanigen issued a press release announcing that the FDA had rejected the lenzilumab EUA, advising investors that, "[i]n its letter, [the] FDA stated that it was unable to conclude that the known and potential benefits of lenzilumab outweigh the known and potential risks of its use as a treatment for COVID-19." On this news, Humanigen's stock price fell $7.14 per share, or 47.25%, to close at $7.97 per share on September 9, 2021. Then, on July 13, 2022, Humanigen disclosed that lenzilumab had failed to show statistical significance on the primary endpoint of the ACTIV-5/BET-B study. On this news, Humanigen's stock price fell $2.38 per share, or 79.6%, to close at $0.61 per share on July 13, 2022. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomlaw.com [GN] I.Q. DATA INTERNATIONAL: Wong Sues Over Unfair Debt Collection -------------------------------------------------------------- Letan Wong, on behalf of them self and all other similarly situated consumer v. I.Q. Data International, Inc., Case No. CACE-22-012607 (Fla. Cir. Ct., Broward Cty., Aug. 25, 2022), is brought seeking to redress for the illegal practices of the Defendant, concerning the collection of debt in violation of the Florida Consumer Collection Protection Act ("FCCPA") and the Fair Debt Collection Practices Act ("FDCPA"). On February 9, 2020, the Defendant sent the Plaintiff a collection letter (hereinafter, "Letter") seeking to collect a balance of a jelly incurred for personal purposes. The letter states as follows: "You're at sending principal balance will accrue interest at the present per annum." Said sentence from the Letter leaves out the amount of the interest rate. The unsophisticated or least sophisticated consumer is left not knowing how much the interest rate is. The consumer is left with not knowing whether it is a large interest rate or a small interest rate. Either interpretation from the letter could be correct but one of, which is false. The Defendant has attempted to confuse and intimidate the Plaintiff and all debtors receiving the letter. In the Plaintiff's case, it is more disturbing because the Plaintiff claims he does not owe this debt. The letter states that the Defendant refused to modify its incorrect position after receiving the Plaintiff's second dispute. The Plaintiff asserts that he never signed a lease for nor live in the apartment in question. The Defendant refused to cease and desist from reporting the depth to Equifax absent the Plaintiff forward a police report. With or without a police report and with or without any other type of documentation the Defendant dunned the Plaintiff for a debt which he did not and does not. The Defendant use materially false deceptive misleading misrepresentation and means in its attempted collection of the Plaintiff alleged debt. The Defendant's communications were designed to cause the debtor to suffer a harmful disadvantage in charting a course of action in response to the Defendants collection efforts. The Defendant violated the Plaintiff's right to not be the target of misleading debt collection communications. The defendant violated the plaintiff's right to a truthful and fair debt collection process. The Plaintiff suffered injury in fact by being subjected to the Defendant's unfair and abusive practices., says the complaint. The Plaintiff was a resident and citizen of Monroe County, Florida. The Defendant is a foreign for-profit incorporated in the state of Washington, who regularly engages, for profit, in the collection of alleged consumer debt.[BN] The Plaintiff is represented by: Omar M. Salazar, II, Esq. LEVI AND PARTNERS PLLC 3230 Stirling Road, Suite 1 Hollywood, FL 33021 Phone: (954) 727-8570 Facsimile: (954) 241-687 Primary: omar@lawlp.com Secondary: frances@lawlp.com INMAR INC: Court Excludes Kheyfets Opinions in Mr. Dee's Suit ------------------------------------------------------------- In the case, MR. DEE'S INC., RETAIL MARKETING SERVICES, INC., and CONNECTICUT FOOD ASSOCIATION, Plaintiffs v. INMAR, INC., CAROLINA MANUFACTURER'S SERVICES, INC., CAROLINA SERVICES, and CAROLINA COUPON CLEARING, INC., Defendants, Case No. 1:19CV141 (M.D.N.C.), Judge William L. Osteen, Jr., of the U.S. District Court for the Middle District of North Carolina grants in part the Plaintiffs' Motion to Exclude Certain Opinions of Mr. Kheyfets. The case concerns an alleged conspiracy between competing coupon processors to allocate markets and customers and fix shipping fees in violation of the Sherman Act. Both parties have offered expert opinions regarding antitrust impact and damages. The Plaintiffs' expert, Dr. Kathleen Grace, analyzed data showing the prices paid by manufacturers and retailers to the Defendants and non-party International Outsourcing Services for shipping fees. Specifically, she conducted regression analyses to determine the prices those manufacturers and retailers would have paid absent a conspiracy and compared that amount to what they were charged. Dr. Grace did not consider offsets or reimbursements in her analyses. Dr. Grace also used the Herfindahl-Hirschman Index ("HHI") to analyze the coupon processing market. The HHI is "a commonly accepted measure of market concentration" used by federal antitrust agencies. "Transactions that increase the HHI by more than 200 points in highly concentrated markets are presumed likely to enhance market power under the Horizontal Merger Guidelines issued by the Department of Justice and the Federal Trade Commission." Dr. Grace first analyzed market concentration for the manufacturer coupon processing market. According to her, before the alleged anticompetitive agreements, the HHI for that market "was over 4000, making it a highly concentrated market." After the agreements, "the HHI increased by approximately 205 points." She then analyzed the HHI for the retailer coupon processing market. Prior to the agreements, the HHI "was over 4850." After the agreements, "the HHI increased by over 450 points." Because both markets' HHI's increased by over 200 points, she opined that "this increased concentration would be expected to reduce competition, increase market power, and result in higher prices in both the manufacturer and retailer processing market." The Defendants' expert, Michael Kheyfets, also provided an opinion on antitrust damages. He argues offsets and reimbursements must be analyzed to determine "who ultimately 'pays' a shipping fee." Mr. Kheyfets criticizes Dr. Grace's analysis of shipping fees as an assessment, arguing she failed to account for retailers' ability to deduct payment for fees they deemed inappropriate. He also criticizes her for failing to assess chargebacks. Mr. Kheyfets argues that to accurately calculate antitrust damage to the retail class, Dr. Grace would have to, inter alia, "show that proposed class members actually paid more in shipping fee chargebacks and did not increase their deductions to manufacturers or receive higher rebates to offset any increase in these charges." He criticizes Dr. Grace for failing to "attempt to study the issue of retailer deductions or rebates at all." Mr. Kheyfets also opined on the HHI. He contends that the effect of the alleged anticompetitive agreements "did not result in a highly concentrated 'manufacturer processing market'" because "the market was already a highly concentrated oligopoly before the alleged conduct." Therefore, according to him, the fact the HHI increased after the agreements "is not proof that market power was necessarily 'enhanced.'" The Plaintiffs moved to exclude portions of Mr. Kheyfets' opinion, and filed a brief in support of their motion. The Defendants responded and the Plaintiffs replied. The Plaintiffs move to exclude two portions of Mr. Kheyfets' expert report. First, they argue Mr. Kheyfets' opinions about offseting benefits are not relevant. Second, they argue his opinions about the HHI are unreliable. The Defendants argue that the Plaintiffs' motion should be denied because it is untimely. No deadline has been set for filing Daubert motions. The record reflects that expert discovery closed on Aug. 2, 2021. Approximately four months later, and before the Court issued any opinions on pending class certification and summary judgment motions, the Plaintiffs filed their Daubert motion. Judge Osteen finds that the Defendants' timeliness concerns provide no basis for denial. He says, the Plaintiffs' motion generally seeks to exclude portions of Mr. Kheyfets' opinion related to antitrust damages which will be relevant at trial because one of the elements they must prove is that they suffered damages. Even if the fact that expert discovery has closed is relevant to determining whether a Daubert motion is untimely, Judge Osteen finds that the Defendants have not been prejudiced by the timing of the Plaintiffs' motion. There is no impending trial date making the Plaintiffs' motion prejudicial and untenable for the Court to address. Therefore, he declines to deny the Plaintiffs' motion on timeliness grounds. Both experts present their opinions on appropriate antitrust damages by calculating overcharge damages -- the difference in the price the Plaintiffs paid in shipping fees during the alleged conspiracy and the price they would have paid but for the conspiracy. Mr. Kheyfets believes that offsetting benefits should be included in antitrust damages calculations. The Plaintiffs argue offsetting benefits are irrelevant as a matter of law in the context of overcharge damages. Judge Osteen finds that offsetting benefits are not relevant to overcharge damages in an antitrust case. Because they are not relevant, evidence of offsetting benefits will not be helpful to the trier of fact. Therefore, he grants the Plaintiffs' motion to exclude Mr. Kheyfets' opinions about offsetting benefits for purposes of calculating antitrust damages at trial. Although Mr. Kheyfets' opinions about offsetting benefits is not relevant to antitrust damages, offsetting benefits may be relevant in assessing Federal Rule of Civil Procedure 23's requirements for class certification. Thus, while Judge Osteen grants the Plaintiffs' motion and exclude the portions of Mr. Kheyfets opinions that address offsetting benefits for purposes of a damages calculation at trial, he considers, as relevant, offsetting benefits in analyzing class certification issues. The Plaintiffs also seek to exclude Mr. Kheyfets' opinion "that the HHI test cannot be used in markets that are already highly concentrated." Specifically, they seek to exclude his opinion that an increase in HHI of over 200 points is not evidence that market power was enhanced if the market was already highly concentrated. They argue that Mr. Kheyfets "proposes a substantial and novel change to the established HHI test" because "he contends that the HHI test cannot be used in markets that are already highly concentrated." They assert that hes "cites no authority for his interpretation" besides relying on his own interpretation. Therefore, they contend Mr. Kheyfets' opinion should be excluded. Judge Osteen agrees with Mr. Kheyfets that the coupon processing market was already highly concentrated before any purported anticompetitive conduct occurred. But to the extent Mr. Kheyfets argues the HHI cannot be applied to the coupon processing market because it is already highly concentrated, that argument lacks merit. According to the Department of Justice Antitrust Division's website, which was relied on by both parties, even in markets that are already highly concentrated, transactions that increase the HHI by more than 200 points are presumed likely to enhance market power. However, as Mr. Kheyfets noted, that presumption is rebuttable. Judge Osteen does not find Mr. Kheyfets' opinion argues the HHI cannot be applied to markets that are already highly concentrated; instead, he understands his opinion to be that any increases in the HHI after the agreements are not per se enhancement of market power. Indeed, Mr. Kheyfets goes on to cite examples of evidence tending to show that the agreements were unlikely to enhance market power. He is permitted to appropriately critique Dr. Grace's HHI analysis; the fact that Mr. Kheyfets opines on potential shortcomings of Dr. Grace's opinions does not make his opinions unreliable. However, he is precluded from arguing that the HHI is irrelevant because the HHI is "a commonly accepted measure of market concentration," and is relevant to proving a Sherman Act Section 1 violation. Accordingly, Judge Osteen denies the Plaintiffs' motion to exclude as to Mr. Kheyfets' opinions on the HHI analysis. For the foregoing reasons, Judge Osteen grants in part the Plaintiffs' motion. He grants the motion as to Mr. Kheyfets' opinions on offsetting benefits as related to antitrust damages. He otherwise denies the motion. A full-text copy of the Court's Aug. 19, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/2p8x996b from Leagle.com. INOVIO PHARMACEUTICALS: Agrees to Settle COVID-19 Suit for $44M --------------------------------------------------------------- Paul Schloesser at endpts.com reports that three months after bringing on a new CEO, Inovio has reached a settlement with investors over accusations that it exaggerated progress on its Covid-19 vaccine candidate. The biotech, once claiming to be at the heart of Operation Warp Speed, has agreed to shell out $44 million in a mix of cash and stock to end a class action lawsuit in which investors alleged that the company misrepresented its efforts on INO-4800, causing the biotech's share price to plunge. The case dates back to March 2020, when Patrick McDermid filed an initial complaint. Almost half a million pages of documents and more than a dozen depositions later, the parties started looking to resolve the case in July 2021, bringing in a mediator of securities class actions and failing. A second negotiation in February this year also failed. According to court documents, the mediator, Gregory Lindstrom, then issued a "mediator's proposal" on May 18, which was accepted by all parties. The settlement totals $30 million in cash plus 7 million shares of $INO at $2 a share. The company's stock is currently trading at $2.56 a share. An Inovio spokesperson told Endpoints News that the biotech does not comment on ongoing litigation. It's also worth noting that the settlement still has to be approved by a judge before it can go into effect and the lawsuit officially ends. This new development takes place after new CEO Jacqueline Shea announced last month that 18% of the company's full-time staffers will be let go, plus 86% of all contractors in a bid to reduce operational expenses and extend its cash runway into Q3 of 2024. The previous CEO, Joseph Kim, left the company in May after steering the company for years and claiming in the early days of the pandemic that Inovio had "developed a vaccine in a matter of hours." Kim was among a select group of CEOs who met with President Donald Trump early in the Covid-19 pandemic to discuss the development of vaccines and therapeutics against the coronavirus. However, Inovio encountered hurdle after hurdle with its vaccine candidate, including a clinical hold, funding withdrawal and a standoff with contract manufacturer VGXI. INO-4800 remains in clinical trials, but Inovio has said it will focus on testing it as a booster to other vaccines rather than a primary series vaccine option. [GN] JEFFERSON CAPITAL: Martinez Files FDCPA Suit in E.D. California --------------------------------------------------------------- A class action lawsuit has been filed against Jefferson Capital Systems, LLC. The case is styled as Brandon Martinez, individually and on behalf of all others similarly situated v. Jefferson Capital Systems, LLC5, Case No. 1:22-at-00651 (E.D. Cal., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Jefferson Capital Systems -- https://myjcap.com/ -- is one of the nation's leading purchasers of secured and unsecured consumer bankruptcies and charged-off receivables.[BN] The Plaintiff is represented by: Jonathan Aaron Stieglitz, Esq. LAW OFFICES OF JONATHAN STIEGLITZ 11845 W. Olympic Blvd., Suite 800 Los Angeles, CA 90064 Phone: (323) 979-2063 Fax: (323) 488-6748 Email: jonathan.a.stieglitz@gmail.com JP MORGAN: Santander Sues Over Unpaid Compensations --------------------------------------------------- Ferney Pinto Santander, on behalf of himself and all others similarly situated v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION; and DOES 1 to 10, inclusive, Case No. 22STCV27750 (Cal. Super. Ct., Aug. 25, 2022), is brought arising out of the Defendant's failure to provide their aggrieved employees with all wages, meal periods in compliance with the applicable wage order and/or the California Labor Code, by failing to pay sick pay, vacation and COVID-19 supplemental wages at the regular rate, by failing to reimburse business expenses, and by failing to comply with the applicable wage order and/or the Labor Code in regards to the payment of wages. The Defendant has maintained practices across its locations which have failed and continue to fail to pay the Plaintiff all wages. Specifically, the Defendant has a company-wide policy of underpaying the Plaintiff for all hours worked. This has resulted in Defendant's failure to pay overtime wages to the Plaintiff. Moreover, the Defendant has failed to pay the Plaintiff all overtime wages. The Defendant also failed to provide the Plaintiff with compliant meal break premiums at the regular rate. Moreover, the Defendant also failed to reimburse the Plaintiff and other aggrieved employees for business related expenses, including but not limited to cellphone related expenses and office supplies, says the complaint. The Plaintiff worked for the Defendant in Los Angeles County, California from May 3, 2016 through May 3, 2022. JPMorgan is a multinational investment bank that offers wealth planning, investing, credit and other financial services.[BN] The Plaintiff is represented by: Marcus Bradley, Esq. Kiley Grombacher, Esq. Lirit King, Esq. BRADLEY/GROMBACHER, LLP 31365 Oak Crest Drive, Suite 240 Westlake Village, CA 91361 Phone: (805) 270-7100 Facsimile: (805) 618-2939 Email: mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com lking@bradleygrombacher.com - and - Garen Majarian, Esq. Sahag Majarian, II, Esq. MAJARIAN LAW GROUP APC 18250 Ventura Boulevard Tarzana, CA 91356 Phone: (818) 263-7343 Facsimile: (818) 609-0892 Email: garen@majarianlawgroup.com sahagii@aol.com JUUL LABS: E-Cigarette Ads Target Youth, Pitt County Suit Claims ---------------------------------------------------------------- THE PITT COUNTY BOARD OF EDUCATION, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC., ALTRIA GROUP, INC., PHILIP MORRIS USA, INC., ALTRIA CLIENT SERVICES, LLC, ALTRIA GROUP DISTRIBUTION COMPANY, JAMES MONSEES, ADAM BOWEN, NICHOLAS PRITZKER, HOYOUNG HUH, and RIAZ VALANI, Defendants, Case No. 3:22-cv-04799-WHO (N.D. Cal., August 22, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the North Carolina Public Nuisance Law, the Racketeer Influenced and Corrupt Organizations Act, and the Unfair and Deceptive Trade Practices Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. The Pitt County Board of Education is a corporate that oversees the Pitt County School Administrative Unit, with offices located on 1717 W. Fifth St. Greenville, North Carolina. JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American electronic cigarette company, with its principal place of business in San Francisco, California. Altria Group, Inc. is a producer of tobacco products, with its principal place of business in Richmond, Virginia. Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria Group, Inc., with its principal place of business in Richmond, Virginia. Altria Client Services LLC is a tobacco company, with its principal place of business in Richmond, Virginia. Altria Group Distribution Company is a tobacco company, with its principal place of business in Richmond, Virginia. [BN] The Plaintiff is represented by: John P. Fiske, Esq. BARON & BUDD, P.C. 11440 West Bernardo Court, Suite 265 San Diego, CA 92127 Telephone: (858) 251-7424 E-mail: jfiske@baronbudd.com - and – Philip C. Federico, Esq. Brent P. Ceryes, Esq. Matthew P. Legg, Esq. BAIRD MANDALAS BROCKSTEDT FEDERICO & CARDEA, LLC 6225 Smith Avenue, Suite 200B Baltimore, MD 21209 Telephone: (410) 421-7777 E-mail: mlegg@bmbfclaw.com - and – Janet Ward Black, Esq. WARD BLACK LAW 208 West Wendover Avenue Greensboro, NC 27401 Telephone: (336) 333-2244 E-mail: jwblack@wardblacklaw.com - and – Khaldoun Baghdadi, Esq. Conor M. Kelly, Esq. WALKUP MELODIA KELLY & SCHOENBERGER, P.C. 650 California Street, 26th Floor San Francisco, CA 94108 Telephone: (415) 981-7210 E-mail: kbaghdadi@walkuplawoffice.com KISLING NESTICO: Judge Brunner Dissents from Denial of Jurisdiction ------------------------------------------------------------------- Judge Jennifer Brunner of the Supreme Court of Ohio issued her Opinion dissenting from the denial of jurisdiction in the case, WILLIAMS v. KISLING, NESTICO, & REDICK, L.L.C., Case No. 2022-0594 (Ohio). Judge Brunner opines that the propositions of law raised by Appellants Kisling, Robert Nestico, and Alberto Redick ("collectively, KNR"), present the following important issues warranting review by the Court: The rigorous analysis required by Civ.R. 23 necessitates consideration of the essential elements of the underlying claims and defenses raised by the parties, as well as the evidentiary proof necessary and available for each in determining predominance. The predominance requirement of Civ.R. 23 cannot be satisfied where the purported class necessarily includes individuals who did not sustain an injury in fact. The case was initiated in the Summit County Court of Common Pleas on Sept. 16, 2016, with a Sixth Amended Complaint having been filed in July 2019. The trial court's docket shows that significant amounts of time, money, and effort have been devoted to litigating class-certification issues against a law firm. There is not much caselaw on this topic. In December 2019, the trial court certified two classes: Class A, which includes KNR's current and former clients who had had certain fees charged by KNR from 2010 to the present, and Class C, which includes KNR's current and former clients who had had certain fees charged by KNR from 2008 to the present. Progress in the case then essentially halted due to litigation in the Ninth District involving those class certifications. Currently, the case is on the trial court's inactive docket until this appeal is resolved. Judge Brunner opines that the Court's denial of jurisdiction allows proceedings in the trial court to resume. Notably, however, other gateway issues remain to be adjudicated. The issue as to whether the Plaintiffs' claims are barred by the one-year statute of limitations for legal-malpractice claims still remains: "Claims arising out of an attorney's representation, regardless of their phrasing or framing, constitute legal malpractice claims that are subject to the one-year statute of limitations set forth in R.C. 2305.11(A). When the gist of a complaint sounds in malpractice, other duplicative claims are subsumed within the legal malpractice claim. Indeed, malpractice by any other name still constitutes malpractice." KNR has raised the statute-of-limitations defense in its answers. If the claims against KNR are found to be barred by R.C. 2305.11, it is unfortunate and unacceptable that the parties have been required to spend significant amounts of time and expense litigating certification issues. Although a trial court is free to manage its own docket, it should seek to ensure that the proceedings before it do not result in unnecessary waste or costs. The statute-of-limitations issue should be resolved to avoid further delay and expense for the parties and the courts. For these reasons, Judge Brunner dissents. A full-text copy of the Court's Aug. 17, 2022 Opinion is available at https://tinyurl.com/7dk823h6 from Leagle.com. KROGER CO: Overcharges Customers for Groceries, Class Suit Claims ----------------------------------------------------------------- Jonathan Bilyk at cookcountyrecord.com reports that Supermarket giant Kroger, which operates the Mariano's branded supermarkets in the Chicago area, has been hit with a class action lawsuit, accusing Kroger of routinely overcharging customers for groceries when the price charged at the register does not align with lower or sale prices marked on shelves and other store displays. The lawsuit was filed on Aug. 17 in Cook County Circuit Court by attorneys Robert J. Stein III and Anthony S. DiVincenzo, of the firm of DiVincenzo Schoenfield Stein, of Chicago. The lawsuit was filed on behalf of named plaintiff Lisabeth Gansberg, identified as a resident of suburban Northbrook, who regularly shops at Kroger's Mariano's location in Northbrook. However, the complaint seeks to expand the action to include "at least tens of thousands" of others who may have been allegedly overcharged for their groceries by Kroger at its Illinois stores since 2018. The complaint centers on claims that Kroger's employees allegedly fail to update their point of sale system checkout register system to account for advertised sales and lower prices on items throughout their store. According to the complaint, this can often leave customers needing to be vigilant to prevent the store from overcharging them for various advertised items. For instance, in the complaint, Gansberg alleges she purchased cherries in the Mariano's produce section that were advertised for $1.99 per pound, to customers presenting both their Kroger's shoppers card and a digital coupon. However, after presenting both of the required items, the store allegedly charged Gansberg the regular price of $4.99 per pound, or 150% more than the advertised price. On another occasion, Gansberg asserts she was overcharged by 48% for Slim Jim jerky sticks. ". . . The overcharges are not the results of a scanner error (misidentifying the bar code)," the complaint said. "Rather, the scanner correctly identifies the grocery item, but the store charges the wrong price for the item. ". . . This is caused by the human error of Kroger employees who input incorrect pricing information into the computer check-out system." The complaint asserts an investigation by the plaintiffs has found such overcharges "occur frequently and harm other customers" at the Northbrook Mariano's store and other Kroger stores. The complaint asserts the alleged overcharges are a breach of contract and of the Illinois consumer fraud and deceptive business practices laws. The plaintiffs have asked the court to award unspecified damages, plus attorney fees. They are also seeking a court order barring Kroger from continuing to allegedly charge "in excess of its advertised prices for grocery items." A spokesperson for Kroger declined comment, saying the company does not comment on pending litigation. [GN] LATIN BEAUTY: Bunting Files ADA Suit in E.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Latin Beauty Perspectives, LLC. The case is styled as Rasheta Bunting, individually and as the representative of a class of similarly situated persons v. Latin Beauty Perspectives, LLC, Case No. 1:22-cv-05040 (E.D.N.Y., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Latin Beauty Perspectives doing business as TRESLUCE -- https://treslucebeauty.com/ -- is a Latinx heritage and culture created beauty products by Becky G. offering cruelty-free, vegan-friendly, conscious beauty.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com LEAD INDUSTRIES: Entry of Final Judgment in Lewis Suit Affirmed --------------------------------------------------------------- In the case, MARY LEWIS, TASHAWN BANKS, AND KATHLEEN O'SULLIVAN, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs v. LEAD INDUSTRIES ASSOCIATION, INC., ATLANTIC RICHFIELD COMPANY, CONAGRA GROCERY PRODUCTS, INC., NL INDUSTRIES, INC., and THE SHERWIN-WILLIAMS COMPANY, Defendants-Appellees, (Illinois Department of Healthcare and Family Services, Proposed Intervenor-Appellant), Case Nos. 1-21-1443, 1-21-1483 (cons.) (Ill. App.), the Appellate Court of Illinois, First District, Fifth Division, affirms the circuit court's order denying the Illinois Department of Healthcare and Family Services' petition to intervene and granting the Defendants' motion for entry of final judgment. In this latest chapter in a 22-year-long lead-based-paint litigation, the Department appeals the circuit court's final order denying its petition to intervene in the Plaintiffs' class-action suit against various parties in the lead manufacturing industry, the Defendants. The Plaintiffs in the case initially brought six counts against the Defendants, but subsequent litigation whittled those down to one. In the one remaining count alleging civil conspiracy, the Plaintiffs sought to recover the cost of screening their children for lead poisoning. However, because the costs of Lewis' and Banks' children's tests were covered by Medicaid and the families did not pay anything out of pocket, and because O'Sullivan similarly failed to show that she or her private insurer paid anything for the testing, the circuit court in April 2017 granted summary judgment in favor of the Defendants on the lone remaining count, finding that the Plaintiffs failed to allege any actual economic harm. The Appellate Court reversed the circuit court's ruling, but in May 2020 the supreme court reversed that decision and affirmed the judgment of the circuit court -- Lewis v. Lead Industries Ass'n, 2020 IL 12410 (Lewis IV). In August 2020, shortly after the supreme court's mandate issued in July, the Defendants moved for class decertification and for entry of final judgment, arguing that, after the supreme court's ruling, no viable claims remained. The circuit court held a hearing on the motion in February 2021. One month later, and nine months after the supreme court's ruling in Lewis IV, the Department filed a petition to intervene, citing statutory authorization to seek subrogation for the State's payment of blood-lead screening costs. In an October 2021 order, the circuit court denied the Department's petition to intervene and granted the Defendants' motion to decertify the class and to issue final judgment. Regarding the Department's petition, the court observed that the Department had acknowledged that it had been monitoring the case from its inception 21 years earlier and that it had waited nine months after the supreme court's ruling in Lewis IV to seek intervention. Finding no reasonable justification for the delay, the court concluded that the Department's petition was untimely. It also ruled that, in the alternative, intervention would be improper because by asserting a right to subrogation the Department would be stepping into the shoes of the Plaintiffs, but the Plaintiffs had no viable claims to pursue. The appeal follows. The Appellate Court agrees with both bases for the circuit court's ruling. First, the court was correct that the Plaintiffs' inability to prove the lone remaining conspiracy claim made intervention inappropriate in the case. The Plaintiffs into whose shoes the Department would be stepping have shown no economic harm and, therefore, do not have any valid claims to pursue. Consequently, neither would the Department as subrogee. As a result, the circuit court was correct that the Department could not assert its right to subrogation though intervention. The Appellate Court also sees no abuse of discretion in the circuit court's conclusion that the Department's petition to intervene was untimely. The Department had more than 20 years to observe the litigation and assess whether, and under what circumstances, it might want to intervene. The Department claims that it was not until the supreme court's most recent ruling in Lewis IV that the Plaintiffs could no longer protect the Department's interest, but that decision was hardly a novel development or surprise. Even if the Appellate Court ignores the first 17 years of the Department's inaction, the Department knew as early as 2017 that the Plaintiffs' role as class representatives was in jeopardy when the circuit court granted the Defendants' motion for summary judgment on the grounds that the Plaintiffs had failed to demonstrate any economic harm. But that event did not prompt the Department to act, and it instead chose to sit back and wait for further adverse events. But that is a course of action that even the State cannot take. Given the Department's long-running awareness of the issues in the case and its multi-year delay in seeking intervention even after the asserted impetus for the intervention came to the fore, it was entirely reasonable for the circuit court to conclude that the Department failed to act in a timely manner. Accordingly, for the foregoing reasons, the Appellate Court affirms the circuit court's order denying the Department's petition to intervene and granting their motion for entry of final judgment. A full-text copy of the Court's Aug. 19, 2022 Order is available at https://tinyurl.com/jr9a9s2j from Leagle.com. LEGACY HEALTHCARE: Rodriguez Sues Over Unpaid Overtime Wages ------------------------------------------------------------ Dimas Rodriguez, on behalf of himself and all other plaintiffs similarly situated v. LEGACY HEALTHCARE FINANCIAL SERVICES, LLC; and THE GROVE OF LAGRANGE PARK, LLC, Case No. 1:22-cv-04532 (N.D. Ill., Aug. 25, 2022), is brought for against the Defendant for unpaid overtime wages under the Fair Labor Standards Act ("FLSA") and under the Illinois Minimum Wage Law The Defendants employ the Plaintiff as "Admission Directors" to filter referrals for appropriate clients at the Defendants' assisted living and rehabilitation facilities. These "Admission Directors" are salaried employees who work extensive hours and are not paid any overtime compensation when they work in excess of 40 hours in individual work weeks. However, the Plaintiff and other "Admission Directors" are misclassified and should not be exempt from receiving overtime pay under the FLSA and the IMLW. In other words, they should have been paid overtime wages of one and one-half times their regular rates of pay for all hours worked beyond forty in a work week, says the complaint. The Plaintiff worked as a salaried employee for the Defendants at its LaGrange Park, Illinois location. Legacy provides residential health care services at over 39 facilities throughout Illinois and over 60 facilities across Illinois, South Dakota, and Montana.[BN] The Plaintiff is represented by: David Fish, Esq. John Kunze, Esq. FISH POTTER BOLAÑOS, P.C. 200 E 5th Ave., Suite 123 Naperville, IL 60563 Phone: (312) 861-1800 Email: docketing@fishlawfirm.com dfish@fishlawfirm.com kunze@fishlawfirm.com Web: www.fishlawfirm.com - and - Patrick Cowlin, Esq. FISH POTTER BOLAÑOS, P.C. 111 E. WACKER DRIVE, SUITE 2300 Email: pcowlin@fishlawfirm.com LOTTERY.COM INC: Faces Million Suit Over Drop in Share Price ------------------------------------------------------------ PRESTON MILLION, individually and on behalf of all others similarly situated, Plaintiff v. LOTTERY.COM, INC. F/K/A TRIDENT ACQUISITIONS CORP.; ANTHONY DIMATTEO; MATTHEW CLEMENSON; and RYAN DICKINSON, Defendants, Case No. 1:22-cv-07111 (S.D.N.Y., Aug. 19, 2022) is a federal securities class action on behalf of a class consisting of all persons and entities that purchased or otherwise acquired Lottery.com securities between November 15, 2021 and July 29, 2022, both dates inclusive (the "Class Period"), the Plaintiff seeking to pursue claims against the Defendants under the Securities Exchange Act of 1934 (the "Exchange Act"). The Plaintiff alleges in the complaint that throughout the Class Period, the Defendants made materially false or misleading statements and failed to disclose, inter alia, that: (i) the Company lacked adequate internal accounting controls; (ii) the Company lacked adequate internal controls over financial reporting, including but not limited to those pertaining to revenue recognition and the reporting of cash; (iii) the Company was not in compliance with state and federal laws governing the sale of lottery tickets; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the suit. LOTTERY.COM, INC. F/K/A TRIDENT ACQUISITIONS CORP. operates as a lottery service company. [BN] The Plaintiff is represented by: Ira M. Press, Esq. KIRBY McINERNEY LLP Thomas W. Elrod 250 Park Avenue, Suite 820 New York, NY 10177 Telephone: (212) 371-6600 Email: ipress@kmllp.com telrod@kmllp.com -and- Sherrie R. Savett, Esq. Michael Dell'Angelo, Esq. Barbara Podell, Esq. Andrew Abramowitz, Esq. Jacob M. Polakoff, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 Email: ssavett@bm.net mdellangelo@bm.net bpodell@bm.net aabramowitz@bm.net jpolakoff@bm.net -and- Brian Levin, Esq. LEVIN LAW, P.A. 2665 South Bayshore Drive, PH-2B Miami, FL 33133 Telephone: (305) 402-9050 Email: brian@levinlawpa.com LOUISIANA: Governor Sues Over Mismanagement of Juvenile Facility ---------------------------------------------------------------- ALEX A., by and through his guardian, MOLLY SMITH, individually and on behalf of all others similarly situated, Plaintiff v. GOVERNOR JON BEL EDWARDS, in his official capacity as Governor of Louisiana; WILLIAM SOMMERS, in his official capacity as Deputy Secretary of the Office of Juvenile Justice, JAMES M. LEBLANC, in his official capacity as Secretary of the Louisiana Department of Public Safety & Corrections, Defendants, Case No. 3:22-cv-00573-SDD-RLB (M.D. La., Aug. 19, 2022) alleges violation of the Juvenile Justice and Delinquency Prevention Act. According to the complaint, on July 19, 2022, at a press conference called to address the failings of one of the state's juvenile facilities, Gov. Jon Bel Edwards declared that the state will "temporarily move" youth in the custody of the Office of Juvenile Justice ("OJJ") from a juvenile secure care facility to the Louisiana State Penitentiary ("LSP"). Although Gov. Edwards claimed that the youth would be held in a separate location at LSP, would not have any contact with adults incarcerated at LSP, and that youth transferred to LSP will have counseling, educational programming, and other services, those claims are unsupported by any plan, says the suit. Because Defendants' actions constitute ongoing, systemic violations of the Plaintiffs' constitutional and statutory rights, the Plaintiffs seek class-wide relief enjoining the Defendants from transferring any youth, including the Plaintiff Alex A., to LSP, and to prevent the Defendants from incarcerating any youth adjudicated delinquent in LSP. In addition, the Plaintiff requests that any youth who have already been transferred to LSP be transferred back to Bridge City Correctional Center for Youth or another appropriate OJJ facility for youth, the suit asserts. LOUISIANA is a state in the Deep South and South Central regions of the United States. [BN] The Plaintiff is represented by: David J. Utter, Esq. William R. Claiborne, Esq. THE CLAIBORNE FIRM, P.C. 410 East Bay Street Savannah, GA 31401 Telephone: (912) 236-9559 Facsimile: (912) 236-1884 Email: david@claibornefirm.com will@claibornefirm.com -and- Christopher J. Murell, Esq. MURELL LAW FIRM 2831 St. Claude Avenue New Orleans, LA 70117 Telephone: (504) 717-1297 Facsimile: (504) 233-6691 Email: chris@murrell.law -and- Hector Linares, Esq. Sara Godchaux, Esq. STUART H. SMITH LAW CLINIC LOYOLA UNIVERSITY NEW ORLEANS COLLEGE OF LAW 7214 St. Charles Avenue, Box 902 New Orleans, LA 70118 Telephone: (504) 861-5560 Facsimile: (504) 861-5440 Email: halinare@loyno.edu shgodcha@loyno.edu -and- Ronald Haley, Esq. HALEY & ASSOCIATES 8211 Goodwood Blvd., Suite E Baton Rouge, LA 70806 Telephone: (225) 755-9935 Facsimile: (888) 900-9771 Email: rhaley@ronaldhaleylawfirm.com -and- David Shanies, Esq. SHANIES LAW OFFICE 110 West 40th Street Tenth Floor New York, NY 10018 Telephone: (212) 951-1710 Facsimile: (212) 951-1350 Email: david@shanieslaw.com LOVE BUGS: Court Conditionally Certifies Collective in Deveny ------------------------------------------------------------- In the class action lawsuit captioned as Deveny, et al., v. Love Bugs Pet Sitting, et al., Case No. 1:22-cv-02058-LMM (N.D. Ga.), the Hon. Judge Leigh Martin May entered an order conditionally certifying a collective group defined as: "All persons who were, or are, hired by Defendants as pet sitters -- or performing materially similar work as pet sitters -- at any time within three years prior to the filing of the original Collective Action Complaint and who did not receive minimum wage, overtime compensation, or tips required by the Fair Labor Standards Act (FLSA), and who elect to opt- in to this action pursuant to 29 U.S.C. section 216(b)." The Court further ordered that: -- Defendants shall, within 21 days of this Order, provide to the Plaintiffs' counsel all available mailing addresses, email addresses, and telephone numbers, and any other available contact information for members of the collective, in a computer-readable format. Plaintiffs’ counsel shall, within five business days from the delivery of the information, then send the Notice and the Consent to Join Form, in the form submitted to the Court by Plaintiff, by mail, e-mail and SMS text message to all individuals within the Collective group. -- Discovery in the action is stayed for 90 days following the entry of this Order. Provided the Parties have not first moved for approval of a settlement, the Parties shall submit a UNOPPOSED Report within 14 days of the expiration of the 90-day stay of discovery regarding the status of the case, including resolution, and the remaining discovery that needs to be completed in the matter, if any. A copy of the Court's order dated Aug. 9, 2022 is available from PacerMonitor.com at https://bit.ly/3cw7IkL at no extra charge.[CC] MADISON REED: Court Dismisses Brown's Amended Class Complaint ------------------------------------------------------------- In the case, MOLLY BROWN, et al., Plaintiffs v. MADISON REED, INC., Defendant, Case No. 21-cv-01233-WHO (N.D. Cal.), Judge William H. Orrick of the U.S. District Court for the Northern District of California grants Madison Reed's motion to dismiss the Plaintiffs' amended class action complaint. Madison Reed manufactures and sells Madison Reed Hair Color Products, which claim to "use ingredients that are less 'harsh' on hair health, as well as the health of the user, than traditionally formulated hair color products." It asserts this on its website, on the products' labeling, and in television, radio, mail, and online ads as part of its marketing campaign. Ms. Brown, a citizen of California, purchased Madison Reed's "radiant Hair Color Kits" (in Catiana Brown and Ravenna Brown) on Madison Reed's website between early 2016 through 2019. In deciding to purchase the products, she relied on its statements on its website and on the products' packaging. She also read on the products' packaging that they were "free of" ammonia, PPD, and resorcinol. After using the products, Brown's hair turned brittle and she began to lose some of her hair. The hair loss stopped after she ceased using the products. Ms. Sheffler, a citizen of Ohio, bought two Madison Reed "radiant Hair Color Kits" (in Sondrio Brown) from the company's website around February 2021. In deciding to purchase the products, Sheffler relied on statements made in a Madison Reed commercial and on its website. She also relied on the products' packaging that they were "free of" ammonia, PPD, and resorcinol. Sheffler experienced scalp irritation and hair loss after using two bottles of the products. The scalp irritation lasted about two months. Her hair later started to grow back. Although Madison Reed markets its products as "gentler, safer, and healthier" and "free of 'harsh' ingredients" as compared to traditional hair products, the Plaintiffs allege that the products instead endanger users and damage their scalp and hair. They also contend that Madison Reed replaced key ingredients -- ammonia, resorcinol, and PPD -- with ethanolamine, 2-methylresorcinol, and toluene-2,5-diamine sulfate ("PTDS"), which are "no better" than the other chemicals. They assert that they would not have paid the money they did for the products had they known the products were "not safe" and, more specifically, that "ammonia was replaced by a more dangerous chemical." Ms. Brown and another Plaintiff, Keppie Moore, filed the class action suit in February 2021, alleging that Madison Reed violated California's Consumers Legal Remedies Act ("CLRA"), False Advertising Law ("FAL"), and Unfair Competition Law ("UCL"). Madison Reed moved to compel Brown to arbitrate her claims, which Judge Orrick denied with respect to her public injunctive relief claim but granted for her remaining claims. He also granted Madison Reed's motion to dismiss the complaint as a whole for failure to state a claim. Brown and Moore then filed a First Amended Complaint ("FAC"), which Madison Reed again moved to dismiss. Judge Orrick granted that motion on Jan. 31, 2022, dismissing Moore's claims in their entirety without leave to amend, but granting Brown leave to amend hers. She and Sheffler filed the SAC on Feb. 21, 2022. On April 15, 2022, Sheffler voluntarily dismissed with prejudice her individual claims, but not her claims for public injunctive relief. Five days later, Madison Reed moved to dismiss the SAC. Judge Orrick heard arguments from both parties on July 13, 2022. First, the parties dispute whether Sheffler, an Ohio resident, can assert claims under the CLRA, UCL, or FAL. The first question is which choice-of-law test applies. Madison Reed asserts that the general governmental interest test articulated in Mazza v. American Honda Motor Company, Inc., 666 F.3d 581 (9th Cir. 2012), governs because Sheffler asserts claims under California's consumer protection laws. The Plaintiffs argue that Nedlloyd Lines B.V. v. Superior Court, 3 Cal.4th 459 (1992), applies instead, as the Terms of Service to which Madison Reed and Sheffler agreed when she bought the products included a choice-of-law provision selecting California law. But, Judge Orrick says the Ninth Circuit has held that Nedlloyd does not apply to all cases involving a sales contract with a choice-of-law provision. Sheffler's claims do not arise from the Terms of Service she agreed too; the SAC is void of any contract-related claims. Rather, they stem from Madison Reed's allegedly false and misleading misrepresentations or omissions. The terms to which Sheffler agreed are not as expansive as the Plaintiffs suggest. To the extent that the Plaintiffs contend that Madison Reed is estopped from arguing that the choice of law provision does not apply because Madison Reed argued for the enforceability of the Terms of Service on the motion to compel arbitration, this point is not persuasive. The choice-of-law provision only governs these Terms and any action related thereto. The language of the arbitration clause is broader than that of the choice-of-law provision: The choice-of-law provision covers disputes related to the Terms of Service, while the arbitration clause covers disputes arising out of or relating to the Terms or the use of Madison Reed's services. For these reasons, the governmental interest test provides the proper framework. There are three steps in this analysis: First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, it examines each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state, and then ultimately applies the law of the state whose interest would be more impaired if its law were not applied. Judge Orrick finds that although the CLRA requires a consumer to give the Defendant notice of the alleged violation at least 30 days before commencing an action, it does not require a specific showing that it had notice that its conduct had been previously declared unlawful. Again, the difference is material, as the Ohio law's notice requirement limits the type of claims that prospective class-action plaintiffs may bring. Next, Sheffler asserts consumer protection claims against a California business based on a commercial and website she viewed and relied on in purchasing products from Ohio. Given these circumstances, both California and Ohio have an interest in applying their own laws, meaning a true conflict exists. And, as confirmed at oral argument, Sheffler viewed the Madison Reed commercial and visited the company's website in Ohio, then relied on those statements in purchasing the products in Ohio. Ohio is therefore the place of the wrong. Ohio's interest in applying its laws to transactions between citizens and corporations that occur in its own state outweighs California's attenuated interest in applying its laws to residents of other states. Sheffler's consumer protection claims are governed by the consumer protection laws of the jurisdiction in which the transaction took place: Ohio. Her CLRA, FAL, and UCL claims are dismissed. Second, Madison Reed next argues that Brown's claims are time-barred by their respective statute of limitations. Relevant is that the SAC was Brown's third attempt to address the issues raised by Madison Reed. The parties dispute whether the first purchase (in early 2016) or last purchase (on March 10, 2018) is the proper focus of the analysis. The SAC alleges that the Plaintiffs are entitled to equitable tolling because of both the discovery rule and Madison Reed's fraudulent concealment. Judge Orrick holds that Brown's claims based on her 2017 and 2018 purchases are not time-barred. However, the early 2016 purchase falls outside the statute of limitations for the UCL, FAL, and CLRA. He does not consider it, or the statements that Brown relied upon in making that purchase, in evaluating the sufficiency of her claims. He, however, considers the Sept. 3, 2017, purchase in weighing Brown's UCL claim, and the March 10, 2018, purchase for all of her claims. Third, turning to the claims themselves, Brown has failed to sufficiently state claims under the CLRA, UCL, or FAL. So has Sheffler, even if California law governed her claims. Among other things, Judge Orrick holds that because of the statute of limitations, many of the statements Brown allegedly relied upon when buying the products are not actionable. Brown therefore does not plausibly plead claims based on a false representation. Sheffler also has not sufficiently pleaded any misrepresentation because she has not identified the particular statements underlying her claim to show how they were fraudulent. For these reasons, neither Plaintiff has plausibly pleaded FAL, UCL, or CLRA claims based on either a misrepresentation or an omission. Lastly, the Plaintiffs requested leave to amend should I dismiss any portion of their SAC. Judge Orrick denies the request. He says it is Brown's third attempt to state plausible claims. She has been on notice of many of the above-described deficiencies since I dismissed her first complaint in August 2021, yet they persist To the extent that Sheffler, a new plaintiff, has not had the same opportunity to amend, Ohio law governs her claims. Alleging other facts cannot cure her claims, as they are barred as a matter of law. Based on the foregoing, Judge Orrick grants the motion to dismiss and dismisses the claims with prejudice. A full-text copy of the Court's Aug. 19, 2022 Order is available at https://tinyurl.com/3saanwye from Leagle.com. MADISON SQUARE: Discovery Underway in MSG Stockholders' Suit ------------------------------------------------------------- Madison Square Garden Entertainment Corp. disclosed in its Form 10-K Annual Report for the fiscal year ended June 30, 2022, filed with the Securities and Exchange Commission on August 19, 2022, that on June 24, 2022, it completed the production of documents requested by plaintiffs in the consolidated class action filed by stockholders of MSG Networks Inc., and continues to respond to plaintiffs' additional discovery requests. On September 27, 2021, the Court of Chancery entered an order consolidating four complaints filed by purported stockholders of MSG Networks Inc. The consolidated action was captioned: In re MSG Networks Inc. Stockholder Class Action Litigation, C.A. No. 2021-0575-KSJM. On October 29, 2021, the consolidated plaintiffs filed their Verified Consolidated Stockholder Class Action Complaint. In the complaint, plaintiffs assert claims on behalf of a putative class of former MSG Networks Inc. stockholders against each member of the board of directors of MSG Networks Inc. prior to the Company's acquisition of MSG Networks ("Merger"). Plaintiffs seek, among other relief, monetary damages for the putative class and plaintiffs' attorneys' fees. Defendants to the MSG Networks Inc. consolidated action filed answers to the complaint on December 30, 2021. On June 24, 2022 the Company substantially completed the production of documents responsive to plaintiffs' requests and continues to be engaged in responding to plaintiffs' additional discovery requests. Pursuant to the indemnity rights in its bylaws and Delaware law, the Company is advancing the costs incurred by defendants in this action, and defendants may assert indemnification rights in respect of any adverse judgment or settlement of the action. On March 3, 2022, the Court of Chancery approved a case schedule, governing the consolidated action, which set a tentative trial date for April 2023. Madison Square Garden Entertainment Corp. is an entertainment company. The Company owns and operates entertainment venues and hosts live events, such as concerts, family shows, professional boxing, college basketball, professional bull riding, mixed martial arts, and esports. Madison Square Garden Entertainment serves customers in the United States. MARRIOTT INT'L: Court Denies Helman's Bid for Class Certification ----------------------------------------------------------------- In the case, ALAN HELMAN, et al., Plaintiffs v. MARRIOTT INTL., INC., et al., Defendants, Civil No. 2019-36 (D.V.I.), Magistrate Judge Ruth Miller of the U.S. District Court for the District of Virgin Islands, Division of St. Thomas and St. John, denies the Helman Parties' motion for class certification under Federal Rule of Civil Procedure 23. The Helman Parties purchased fractional condominium interests at the Ritz-Carlton Destination Club ("RCDC") on St. Thomas, U.S. Virgin Islands ("Ritz-Carlton Great Bay") between 2002 and 2009. The fractionals are a type of high-end time-sharing property ownership, entitling purchasers to exclusive access to the Ritz-Carlton Great Bay and other RCDC locations worldwide. The Defendants are Marriott-related entities that were engaged in various aspects of timeshare property development, marketing, and management, some under the RCDC umbrella, and others associated with other less expensive Marriott products such as the Marriott Vacation Club ("MVC"). The Helman Parties allege that the merger of the RCDC and MVC product lines, first announced in 2012 and consummated following a vote of approval by the owners in 2014, caused damage to the value of their holdings. In 2002, RC Hotels VI, a Marriott International, Inc. ("MII") subsidiary, established the Ritz-Carlton Great Bay; it consisted of 105 condominiums with a total of 1260 available fractionals. The project included the formation of the Great Bay Condominium Owners Association, Inc. The Association was empowered to enter into agreements with certain defendants such as the "Management Agreement," which gave those defendants the authority to exercise powers and assume duties of the Association's Board of Directors, and to manage the daily affairs of the Ritz-Carlton Great Bay. In October 2008, during the so-called "Great Recession," many owners became delinquent on maintenance fees they owed the Association, and defaulted on mortgages they obtained through RC Development or another defendant. The Helman Parties contend that certain defendants -- lending entities -- failed to expeditiously pursue foreclosure of those owners' interests; the Helman Parties allege they did so because foreclosing on the interests would have made defendants responsible for paying any outstanding dues on those interests. In mid-2011, in connection with one mortgage foreclosure action defendants filed in the Superior Court of the Virgin Islands, the Association claimed that the Defendants violated their fiduciary duties by delaying the filing of the action, thereby causing the Association to accrue unpaid maintenance fees. By this point, it was owed increasingly large amounts in delinquent fees, and sales of fractionals had slowed significantly. Also during this time period, MII began planning a re-engineering of the RCDC, deciding to merge the RCDC with the MVC to give more than 400,000 MVC members access to RCDC properties. In 2012, the Defendants sent a letter to the owners describing RCDC's new affiliation with MVC. While the Association's Board was evaluating the impact of the proposed merger on the value of the fractionals, senior executives of defendants were assuring RCDC owners of their ongoing commitment to the Ritz-Carlton brand and promised them that the original membership benefits would remain the same. According to the Helman Parties, in January 2013, the Defendants offered to begin foreclosure proceedings on delinquent Ritz-Carlton Great Bay fractionals if the Board convinced owners to vote in favor of the merger. Later that year, the Helman Parties aver, the Defendants entered an agreement ("the 2013 Affiliation Agreement") that provided them with one-sided benefits. The Defendants did not, the Helman Parties allege, share the 2013 Affiliation Agreement with the Association. On Dec. 2, 2013, the Association and RC St. Thomas, LLC entered a "Settlement Agreement" to, among other things, resolve certain claims between them in the pending foreclosure litigation. Under the terms of the agreement, RC Hotels VI, its affiliates, and subsidiaries agreed to pay any outstanding maintenance fees owed to the Association and to repurchase certain delinquent fractional interests from the Association. In return, the Association agreed to encourage its members to vote in favor of the merger. Throughout December 2013, the Board recommended that the owners vote to amend the Club Declaration and approve the merger. Further, defendants held webinars and provided information to the Ritz-Carlton Great Bay owners regarding the proposed merger -- efforts the Helman Parties allege were misleading and deliberately omitted important information. On Jan. 26, 2014, a majority of the owners who voted approved the merger. The essence of the Helman Parties' complaint is that the Defendants surreptitiously planned to merge two vacation ownership product lines--the luxury RCDC and the less-exclusive MVC, and that they did not disclose their intent to merge the two property lines until July 2012. Further, the Helman Parties claim that the Defendants went ahead with the merger despite concern from RCDC owners that the merger would dilute the exclusivity and value of their fractionals. Moreover, theys allege that although the Defendants promised that the merger would not occur without the affirmative vote of a majority of the owners at each RCDC, when the Defendants realized they did not have the necessary votes, they resorted to lying and hiding critical documents from the various RCDC boards. Finally, with respect to the Ritz-Carlton Great Bay, the Helman Parties claim that the Defendants manufactured a financial crisis to overcome opposition to the merger. According to the Helman Parties, despite defendants' obligation (under the Ritz-Carlton Great Bay's governing documents) to foreclose on fractionals with delinquent maintenance fees and pay any outstanding dues, when numerous Ritz-Carlton Great Bay owners fell behind on their mortgages and outstanding fees, defendants used the resulting financial situation as leverage for the merger. The Helman Parties contend they did not discover the existence of the 2012 B&T Cook decision regarding the fiduciary duties owed to them, or the 2013 Affiliation Agreement, until 2018. The Helman Parties initiated the litigation in the Spring of 2019. They filed the Second Amended Class Action Complaint ("SAC") on Nov. 8, 2019. on Aug. 5, 2020, the Court ruled on the Defendants' motions to dismiss. On Aug. 26, 2020, the Defendants filed their answer and counterclaims, alleging claims for contractual indemnification under the Management Agreement, and unjust enrichment based on the payments defendants made under the Settlement Agreement. On Aug. 6, 2021, the Court denied the motion to dismiss the counterclaims. Meanwhile, class-related discovery proceeded and the instant motion for class certification followed. In deciding whether to certify a class under Fed. R. Civ. P. 23, the district court must make whatever factual and legal inquiries are necessary and must consider all relevant evidence and arguments presented by the parties." Thereafter, it must make findings that each of the rule's requirements has been met. Findings must be based on a preponderance of the evidence, and the movant bears the burden of proof. Further, it must resolve all relevant factual or legal disputes, even if they implicate the merits of the claims. If required to review expert opinion testimony offered in support of or against an element of class certification under Rule 23, the Court must conduct a "rigorous analysis." Moreover, upon class certification, the court must include in "the text of the order or an incorporated opinion (1) a readily discernable, clear, and precise statement of the parameters defining the class or classes to be certified, and (2) a readily discernible, clear, and complete list of the claims, issues or defenses to be treated on a class basis." Lastly, its decision to certify a class is discretionary. The Helman Parties propose the certification of two classes. The first proposed class ("the 2012 Class") asserts CICO, breach of fiduciary duty, aiding and abetting, and breach of implied covenant claims. The Helman Parties define this proposed class as follows: All entities and individuals (including their assignees) who owned a 1/12 fractional interest at the Ritz-Carlton Great Bay as of July 17, 2012, but excluding (a) those who financed their purchases through any Defendant and whose fractional interest was foreclosed upon; (b) any Defendants named in the complaint and any affiliate, parent, or subsidiary of any defendant; any successor or assignee of any defendant; any entity in which any defendant has a controlling interest; and any officer, director, or employee of any defendant; and (c) anyone who was a member of the board of directors of either the Great Bay Condominium Owners Association or the Neighborhood Association between 2008-2014. They also propose a second class ("the 2014 Class"), which asserts fraudulent concealment claims, and comprises "all members of the Class described above who also owned their fractional interests as of Jan. 26, 2014." As to whether the proposed classes satisfy certification prerequisites under FRCP 23(a), Judge Miller opines that (i) it is more likely than not that a group of more than 50 members comprise the 2012 Class; (ii) the Defendants do not challenge the Helman Parties' representations regarding commonality; (iii) the Defendants do not challenge the Helman Parties' representations regarding typicality; and (iv) the Helman Parties are capable of adequately representing the classes, and that no disqualifying conflict is apparent at this stage. As to whether common questions of law or fact predominate, Judge Miller opines that (i) despite alleging a common scheme to defraud, the Helman Parties must demonstrate reliance on an individual basis; (ii) she is not persuaded that the Helman parties have met their burden to establish the predominance of common issues; (iii) because the evidence consists wholly of materials created by the Defendants, the questions of law or fact common to class members predominate over questions affecting only individual members and that those questions may be susceptible to common proof; (iv) because the materials primarily illustrate actions the Defendants took, questions of law or fact common to class members predominate over questions affecting only individual members and common proof may resolve these questions; and (v) as to the civil CICO claims, the Helman Parties have not met their burden to show that questions of fact or law common to class members predominate over individual questions. Finally, as to whether a class action is superior, Judge Miller holds that (i) although "proof that a particular action is a negative value suit may satisfy the requirement of superiority under Rule 23(b)(3)," no such proof is currently before the Court; (ii) although there is no forum that is convenient for all litigants, the properties at issue are located on St. Thomas and the Court has already ruled on several motions, including the parties' motions to dismiss; (iii) the Plaintiff have not persuaded her that a class action is superior in the circumstances; and (iv) the Defendants do not dispute that the class is ascertainable. Having considered the requirements for proceeding as a class action as set forth in Federal Rule of Civil Procedure 23, along with the parties' arguments, evidence and authorities, Judge Miller concludes that the matter is not appropriate for treatment as a class action. Accordingly, she denies the motion for class certification. A full-text copy of the Court's Aug. 17, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/5ead3pxa from Leagle.com. MARYMOUNT MANHATTAN: Reynolds Files Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Marymount Manhattan College. The case is styled as Patrick Reynolds, Daniel Lewis, on behalf of themselves and all others similarly situated v. Marymount Manhattan College, Case No. 1:22-cv-06846-LGS (S.D.N.Y., Aug. 11, 2022). The nature of suit is stated as Other Fraud. Marymount Manhattan College -- https://www.mmm.edu/ -- is a private college on the Upper East Side of New York City.[BN] The Plaintiffs are represented by: Blake Hunter Yagman, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 405 E. 50th Street New York, NY 10022 Phone: (212) 594-5300 Email: byagman@milberg.com MASSACHUSETTS: Reaches $14M Settlement in Drug Lab Scandal Suit --------------------------------------------------------------- wbur.org reports that the process of reimbursing people for the biggest drug lab scandals in the nation's history is moving forward. Massachusetts officials are notifying more than 30,000 people who will share a $14 million dollar settlement for the impact of the state's drug lab scandals a decade ago. Those receiving notices had their criminal convictions dismissed because evidence in their cases was tainted by the misconduct of former state chemists Annie Dookhan and Sonja Farak. Both were convicted of tampering with the drugs they were testing for evidence in criminal cases, resulting in the state Supreme Judicial Court dismissing tens of thousands of compromised criminal cases. The settlement is the result of a class action lawsuit seeking to reimburse those who had their cases dismissed. The fees eligible for reimbursement include probation fees, victim witness fees, GPS monitoring costs and driver's license reinstatement fees. "Annie Dookhan and Sonja Farak's crimes undermined the integrity of our justice system and impacted thousands of lives," Massachusetts Attorney General Maura Healey said when the settlement was reached in June. "From the start, we have recognized that defendants with vacated convictions should be refunded and are pleased to have engaged in a collaborative effort to reach a fair and efficient resolution for all involved." A lead plaintiff in the class action suit, Nicole Westcott, 34, of Belchertown, said she doesn't know exactly how much money she stands to receive if a judge signs off on the settlement later this fall. But Westcott said she paid a variety of fees, such as $65 monthly probation costs and $500 to get her driver's license, before the SJC dismissed her three possession cases in 2018. "The people who were involved in this will finally get justice," Westcott said. Westcott has been in recovery from heroin addiction for nearly nine years. She said early recovery was hard because finding employment and housing was difficult with a criminal record and having to pay court fees. "Not only did I already put my life on hold for the years that I was using, but now I was ready to be a functional member of society and I was blocked from doing that because of these charges," Westcott said. At one point, Westcott said she faced incarceration because of unpaid court costs. She recalled a hearing where she had to borrow $250 or return to jail. "I was doing really well," Westcott said. "But I remember being terrified, sitting outside the courthouse hysterically crying. I was like, 'Why are they going to incarcerate me for money?'" Each person who has had a case dismissed will receive at least $150. The average amount for each recipient is estimated at $375. The state is notifying people via letters, posting flyers and the settlement notice is available online. Class members can also call 1-833-630-1415 for information in both English and Spanish. The settlement also covers relatives of deceased class members. A judge will hold a final hearing on the settlement in October. If the judge determines that it is fair, a settlement administrator will send out checks. Any uncashed checks will be distributed to Community Legal Aid, Inc., the Transformational Prison Project, and the Tufts Education Reentry Network program after one year. This segment aired on August 26, 2022. [GN] MENARD INC: Faces Class Action Lawsuit for Charging Pickup Fees --------------------------------------------------------------- John O'Brien at legalnewsline.com reports that Menard, Inc., has removed a class action lawsuit over pickup fees to federal court. Pilar Domer sued the home goods retailer on July 14 in Eau Claire County Circuit Court, alleging a bait-and-switch scheme on in-store pickups that leaves customers paying more in fees than they thought. The company removed the case to U.S. District Court for the Western District of Wisconsin on Aug. 17. The store adds a $1.40 charge for each product ordered for in-store pickup, the suit says. "Menard's is the only major retailerin the U.S. to charge its customers for picking up items in its stores - in other words, to charge a fee for a Menard's employee to move an item from one part of the Menard's store to another part of the same store," the suit says. "Worse, Menard's never reasonably informs its online customers of this add-on fee." The online prices do not show the $1.40 fee, the suit claims, and the fee is "never reasonably disclosed." "(T)he fee is simply added to an order total with no further explanations," the suit says. [GN] MENZIES AVIATION: Fails to Pay Proper Wages, Amaya Alleges ---------------------------------------------------------- DORA PATRICIA AMAYA, individually and on behalf of all others similarly situated, Plaintiff v. MENZIES AVIATION (USA), INC.; and DOES 1 through 10, inclusive, Defendants, Case No. 2:22-cv-05915 (C.D. Cal., Aug. 19, 2022) is an action against the Defendant for failure to pay minimum wages, overtime compensation, provide meals and rest periods, and provide accurate wage statements. Plaintiff Amaya was employed by the Defendants as passenger service agent. Menzies Aviation Inc. was founded in 2000. The company's line of business includes arranging passenger transportation such as airline and bus ticket offices. [BN] The Plaintiff is represented by: C. Joe Sayas, Jr., Esq. Karl P. Evangelista, Esq. LAW OFFICES OF C. JOE SAYAS, JR. 500 N. Brand Boulevard, Suite 980 Glendale, CA 91203 Telephone: (818) 291-0088 Facsimile: (818) 240-9955 -and- David P. King, Esq. KING CHENG MILLER & JIN, LLP 3675 Huntington Drive, Suite 200 Pasadena, CA 91107 Telephone: (626) 304-9001 Facsimile: (626) 304-9002 META PLATFORMS: Privacy Class Action Suit to Proceed Cert. Hearing ------------------------------------------------------------------ Natasha Lomas at techcrunch.com reports that Novel competition litigation filed in the U.K. against Facebook/Meta -- seeking to extract billions in damages from the social media giant via an opt-out class action lawsuit route -- will proceed to a certification hearing at the end of January, 2023, after Meta did not challenge the choice of forum to hear the claim. The case was lodged back in January, with the Competition Appeal Tribunal -- which is set to decide whether the claim should be certified as a collective action and proceed to a full trial. Commenting in a statement, Kate Vernon from Quinn Emanuel Urquhart & Sullivan UK, LLP, the law firm acting for the litigant, said: "Earlier this year Facebook/Meta decided not to challenge the Tribunal's jurisdiction over Meta Inc. (Facebook's U.S. parent company) and Meta Ireland (Facebook's Irish subsidiary), meaning that the case can now progress against all three proposed defendants in earnest. This was an important step for the claim -- as it allows the claim to progress more quickly to the first substantive hearing. We are really pleased that the case is progressing and we have the certification hearing, scheduled for the end of January 2023." Class action style suits that have sought collective damages for privacy breaches have faced an uphill struggle in the U.K. -- with a hammer blow being dealt to the category last November when Google prevailed in a Supreme Court appeal against long-running litigation related to a Safari privacy settings workaround after the court rejected the litigants' push for compensation for a uniform loss of control, holding that loss/damage must be proved on an individual basis in order to claim compensation -- so it will be interesting to see whether a competition damages complaint is allowed to proceed as a class action. International competition law expert Dr Lovdahl Gormsen, who is bringing the claim and acting as the proposed class representative, argues in it that Facebook has imposed unfair terms, prices and/or other trading conditions on U.K. Facebook users -- including by requiring users to hand over their personal data as a condition of access to the Facebook social network, and failing to share with users the profits it makes from such data. So loss of privacy also underpins the competition litigation. At the Tribunal's instruction, a legal notice about the claim has been published providing information for anyone in the proposed class (all people domiciled in the U.K. between February 11, 2016 to December 31, 2019 who used Facebook at least once), or any third party with a legitimate interest in the claim, to make oral and/or written submissions to the Tribunal. The notice also provides information for anyone with an interest in the claim who wishes to object to Dr Lovdahl Gormsen acting as the class representative, or to object to the claim itself. Commenting in a statement, Dr Lovdahl Gormsen said: "I am delighted that we have been provided with the dates for the certification hearing. This will be heard at the Competition Appeal Tribunal in London between 30 January and 1 February 2023. It will decide whether the claim can go ahead as a collective action, and whether I should be authorised as the Proposed Class Representative." "Engagement with the Proposed Class, and others with an interest in the claim, is very important to me. Any Proposed Class Member, or any third party with a legitimate interest in the proposed claim (who is not a member of the Proposed Class), may apply to the Tribunal for permission to make oral and/or written submissions at the certification hearing. Any such application must be made in writing, supported by reasons, and be received by the Tribunal before 4pm on 10 October 2022," she added. "Similarly, if you want to object to the application for a Collective Proceedings Order and/or my authorisation as the Proposed Class Representative, you must write to the Tribunal stating your reasons for objecting by the same deadline." Further details about the litigation can be found at facebookclaim.co.uk. Meta was contacted for comment but it declined to offer new public remarks. In January, when the suit was filed, the company said: We disagree with and will vigorously defend these claims. People access our service for free. They choose to use our services because we deliver value for them and they have meaningful control of what information they share on Meta's platforms and who with. We have invested heavily to create tools that allow them to do so. An intertwining of competition law and privacy concerns is also causing a headache for Meta in Germany where the competition regulator has spent years pressing an "exploitative abuse" case against the tech giant, related to its combining of user data across different services -- to create so called user 'superprofiles'. If it prevails, the pioneering procedure could see a structural separation of Meta's business empire imposed by Germany without the need for it to order its business broken up. Legal questions pertaining to the German FCO's case were referred to Europe's top court last year -- and a ruling is expected immanently. So that's another case to watch. This report was updated with Meta's response. [GN] META PLATFORMS: Smidga Sues Over Illegal Data Harvesting -------------------------------------------------------- Malinda S. Smidga, individually and on behalf of all others similarly situated v. META PLATFORMS, INC. f/k/a FACEBOOK, INC., THE UNIVERSITY OF PITTSBURGH MEDICAL CENTER d/b/a UPMC, Case No. 2:22-cv-01231-MPK (W.D. Pa., Aug. 25, 2022), is brought against the Defendants' illegal data harvesting and recklessly disregarded patient privacy in order to maximize their own profits. To operate its advertising enterprise, Meta relies on tracking tools like the "Meta Pixel." Meta Pixel is a snippet of JavaScript code embedded on a third-party website that tracks users' actions as they navigate through the website. It logs the pages they visit, the buttons they click, the information they type, and more Meta Pixel then sends this harvested information to Meta, where it can be stored for years. Meta surreptitiously profits from this large-scale data collection. When the Meta Pixel is embedded in a third-party website, and without users' knowledge or consent, Meta is able to gather every user interaction with that site. Meta then aggregates this data across all websites in order to build a dossier of that user's activity, labeled with the user's IP address, and matched to the user's Facebook and/or Instagram account (or lack thereof) Recently, it was discovered that the Meta Pixel is embedded on the websites of one-third of the top 100 U.S. hospitals and, more egregiously, on the password-protected patient portals of seven health systems. Notably, it was found on UPMC's appointment scheduling page. When a user enters sensitive health and personal information on UPMC's appointment scheduling page, the Meta Pixel then sends some of that data to Meta. The data can include a user's medical condition, prescriptions, appointments, test results, diagnoses, allergies, sexual orientation, treatment status, reason for requesting an appointment, and more. As with other types of data collected by Meta Pixel, this sensitive information is sent to Meta along with the user's IP address (an IP address is an identifier that is similar to a computer's mailing address and can generally be linked to a specific individual or household). Additionally, if a user is logged in to Facebook when they visit a hospital website in which Meta Pixel is embedded, Meta may link their private information to their Facebook account. Meta monetizes the information it receives through Meta Pixel by using it to generate highly profitable targeted advertising; the type of advertising on which it relies for the majority of its revenue. The targeted advertising Meta offers for sale includes the ability to target patients based on specific sensitive health information that a patient has provided on UPMC's appointment scheduling page. The Plaintiff had her sensitive health information harvested by Meta through the Meta Pixel without her knowledge or consent when she entered her information on UPMC's appointment scheduling page. As a result of Meta's illegal data harvesting, Plaintiff began to receive targeted advertisements that were specifically related to the medical information that she thought was secure on UPMC's website. Both Meta and UPMC recklessly disregarded patient privacy in order to maximize their own profits. The Defendants' actions constitute an extreme invasion of the Plaintiff's and Class members' right to privacy and violate federal and state statutory and common law, says the complaint. The Plaintiff is a Facebook user and was a patient of UPMC and has used UPMC's appointment scheduling page since approximately 2014. UPMC is an integrated global health enterprise, and one of the leading nonprofit healthcare systems in the United States.[BN] The Plaintiff is represented by: Gary F. Lynch Jamisen A. Etzel Nicholas A. Colella Patrick D. Donathen LYNCH CARPENTER, LLP 1133 Penn Ave., 5th Floor Pittsburgh, PA 15222 Phone: (412) 322-9243 Email: gary@lcllp.com jamisen@lcllp.com nickc@lcllp.com patrick@lcllp.com NATIONAL FREIGHT: Fails to Pay Proper Wages, Lopez Alleges ---------------------------------------------------------- LUIS LOPEZ; and AMBIORIS JIMENEZ, individually and behalf of all others similarly situated, Plaintiffs v. NATIONAL FREIGHT, INC.; and NFI INTERACTIVE LOGISTICS, LLC, Defendants, Case No. 3:22-cv-01844-S (N.D. Tex., Aug. 19, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs. The Plaintiffs were employed by the Defendants as delivery drivers. NATIONAL FREIGHT, INC. provides logistics services. The Company offers warehousing, intermodal, brokerage, goods distribution, cross docking, management, real estate, and global transportation services. [BN] The Plaintiffs are represented by: Drew N. Herrmann, Esq. Pamela G. Herrmann, Esq. HERRMANN LAW, PLLC 801 Cherry St., Suite 2365 Fort Worth, TX 76102 Telephone: (817) 479-9229 Email: drew@herrmannlaw.com pamela@herrmannlaw.com -and- Harold Lichten, Esq. Sarah Schalman-Bergen, Esq. Thomas Fowler, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 Email: hlichten@llrlaw.com ssb@llrlaw.com tfowler@llrlaw.com NATIONSTAR MORTGAGE: Parker Seeks to Certify Homeowner Class ------------------------------------------------------------ In the class action lawsuit captioned as LINDA PARKER, ET AL., v. Nationstar Mortgage, LLC (NKA Mr Cooper) et al., Case No. 1:22-CV-00060-WES-PAS (D.R.I.), the Plaintiffs ask the Court to enter an order certifying the following class of foreclosed homeowners: "(i) Rhode Island residents; (ii) Whose Rhode Island properties were foreclosed on by mortgagees that utilized Nationstar as a third-party loan servicer to provide notice of and/or to effectuate such foreclosures between July 1, 2015 and August 29, 2017." The individuals comprising this class are easily ascertainable based on public records and/or from records maintained by Nationstar of its foreclosure-related activity during the relevant time period. The Plaintiffs are foreclosed homeowners who are victims of illegal foreclosures. Their mortgage holders engaged a loan servicer, Nationstar, that was unlicensed and prohibited from doing business in Rhode Island without a license. Nationstar knowingly violated state law by engaging in servicing activity, sending foreclosure correspondence and conducting foreclosures on the Plaintiffs and their properties. Their unlawful conduct was identical with respect to scores of other similarly situated homeowners in Rhode Island. The resulting foreclosures were inconsistent with the governing mortgage contracts and Rhode Island law. In each case, homeowners suffered damages associated with premature and illegal foreclosure. For the reasons discussed below, this matter meets all of the elements of Fed. R. Civ. P. 23 and the Plaintiffs' Motion for Class Certification should be granted. Nationstar offers mortgage services. A copy of the Plaintiffs' motion dated Aug. 9, 2022 is available from PacerMonitor.com at https://bit.ly/3CAUzkX at no extra charge.[CC] The Plaintiffs are represented by: Todd S. Dion, Esq. 15 Cottage Avenue, Ste 202 Quincy, MA 02169 Mobile: (401) 965-4131 Facsimile: (401) 270-2202 E-mail: toddsdion@msn.com NATIONSTAR MORTGAGE: Santos Seeks to Certify Homeowner Class ------------------------------------------------------------ In the class action lawsuit captioned as CRISTINA I. SANTOS, ET AL., v. Nationstar Mortgage, LLC (n/k/a Mr. Cooper), et al., Case No. 1:22-cv-00103-MSM-PAS (D.R.I.), the Plaintiffs ask the Court to enter an order certifying the following class of foreclosed homeowners: "(i) Rhode Island residents; (ii) Whose Rhode Island properties were foreclosed on by mortgagees that utilized Nationstar as a third-party loan servicer to provide notice of and/or to effectuate such foreclosures between July 1, 2015 and August 29, 2017." The individuals comprising this class are easily ascertainable based on public records and/or from records maintained by Nationstar of its foreclosure-related activity during the relevant time period. The Plaintiffs are foreclosed homeowners who are victims of illegal foreclosures. Their mortgage holders engaged a loan servicer, Nationstar, that was unlicensed and prohibited from doing business in Rhode Island without a license. Nationstar knowingly violated state law by engaging in servicing activity, sending foreclosure correspondence and conducting foreclosures on the Plaintiffs and their properties. Their unlawful conduct was identical with respect to scores of other similarly situated homeowners in Rhode Island. The resulting foreclosures were inconsistent with the governing mortgage contracts and Rhode Island law. In each case, homeowners suffered damages associated with premature and illegal foreclosure. For the reasons discussed below, this matter meets all of the elements of Fed. R. Civ. P. 23 and the Plaintiffs' Motion for Class Certification should be granted. Nationstar offers mortgage services. A copy of the Plaintiffs' motion dated Aug. 9, 2022 is available from PacerMonitor.com at https://bit.ly/3AwUFHD at no extra charge.[CC] The Plaintiffs are represented by: Todd S. Dion, Esq. 15 Cottage Avenue, Ste 202 Quincy, MA 02169 Mobile: (401) 965-4131 Facsimile: (401) 270-2202 E-mail: toddsdion@msn.com NATIONSTAR MORTGAGE: Sawyer Seeks to Certify Homeowner Class ------------------------------------------------------------ In the class action lawsuit captioned as Gail E. Sawyer, et al., v. Nationstar Mortgage, LLC (NKA Mr Cooper) et al., Case No. 1:22-CV-00020-WES-PAS (D.R.I.), the Plaintiffs ask the Court to enter an order certifying the following class of foreclosed homeowners: "(i) Rhode Island residents; (ii) Whose Rhode Island properties were foreclosed on by mortgagees that utilized Nationstar as a third-party loan servicer to provide notice of and/or to effectuate such foreclosures between July 1, 2015 and August 29, 2017." The individuals comprising this class are easily ascertainable based on public records and/or from records maintained by Nationstar of its foreclosure-related activity during the relevant time period. The Plaintiffs are foreclosed homeowners who are victims of illegal foreclosures. Their mortgage holders engaged a loan servicer, Nationstar, that was unlicensed and prohibited from doing business in Rhode Island without a license. Nationstar knowingly violated state law by engaging in servicing activity, sending foreclosure correspondence and conducting foreclosures on the Plaintiffs and their properties. Their unlawful conduct was identical with respect to scores of other similarly situated homeowners in Rhode Island. The resulting foreclosures were inconsistent with the governing mortgage contracts and Rhode Island law. In each case, homeowners suffered damages associated with premature and illegal foreclosure. For the reasons discussed below, this matter meets all of the elements of Fed. R. Civ. P. 23 and the Plaintiffs' Motion for Class Certification should be granted. Nationstar offers mortgage services. A copy of the Plaintiffs' motion dated Aug. 9, 2022 is available from PacerMonitor.com at https://bit.ly/3ATB85z at no extra charge.[CC] The Plaintiffs are represented by: Todd S. Dion, Esq. 15 Cottage Avenue, Ste 202 Quincy, MA 02169 Mobile: (401) 965-4131 Facsimile: (401) 270-2202 E-mail: toddsdion@msn.com NATIONWIDE MORTGAGE: Nantongo Files Suit Over Unpaid Minimum Wages ------------------------------------------------------------------ OLIVIA NANTONGO, on behalf of herself and all others similarly situated, Plaintiff v. NATIONWIDE MORTGAGE BANKERS, INC., Defendant, Case No. 1:22-cv-07128 (E.D.N.Y., August 21, 2022) is a collective action complaint brought against the Defendant for its alleged violations of the Fair Labor Standards Act, the New York Labor Law, and the New York Codes, Rules and Regulations. The Plaintiff was employed by the Defendant as a business development employee from December 8, 2020 to May 11, 2021. The Plaintiff claims that the Defendant misclassified her and other similarly situated business development/marketing employees as independent contractors. Accordingly, the Defendant routinely required, suffered, or permitted them to work 40 hours per week, but compensated them less than the statutorily required federal minimum wage. In addition, the Defendant failed to record all the time that they have actually worked, including time spent while training. Moreover, the Defendant also failed to provide them with the required wage statements and notices pursuant to NYLL, says the Plaintiff. On behalf of herself and all other similarly situated business development/marketing employees, the Plaintiff demands judgment against the Defendant declaring that the practices complained are unlawful and in violation of the FLSA, the NYLL, and the NYCRR. The Plaintiff also seeks an award for all damages, including back pay for unpaid minimum wages, liquidated damages, penalties, and general and special damages for lost compensation and job benefits they would have received but for the Defendant's improper practices, as well as pre- and post-judgment interest, litigation costs and disbursement incurred with reasonable attorney's fees, and expert witness fees, and other relief as the Court finds necessary and proper. Nationwide Mortgage Bankers, Inc. provides financing options for customers buying homes, investment properties or refinancing current mortgages. [BN] The Plaintiff is represented by: Fred V. Charles, Esq. 1612 Central Avenue Far Rockaway, NY 11691 Tel: (646) 494-2662 NEW JERSEY: Court Grants Bids to Certify Class in C.P. v. NJDOE --------------------------------------------------------------- In the case, C.P., individually and on behalf of F.P., a minor child; D.O. individually and on behalf of M.O., a minor child; S.B.C., individually and on behalf of C.C., a minor child; A.S., individually and on behalf of A.A.S., a minor child; M.S., individually and on behalf of her minor child, H.S.; Y.H.S., individually and on behalf of his minor child, C.H.S.; E.M. on behalf of her minor child, C.M.; M.M., individually and on behalf of K.M.; L.G., individually and on behalf of her minor child, T.M.; E.P., individually and on behalf of her minor child, Ea.P.; and on behalf of ALL OTHERS SIMILARLY SITUATED, Plaintiffs v. NEW JERSEY DEPARTMENT OF EDUCATION and ANGELICA ALLEN-McMILLAN, Acting Commissioner of Education, in her official capacity, Defendants, Civil Action No. 19-12807 (D.N.J.), Judge Noel L. Hillman of the U.S. District Court for the District of New Jersey grants the Plaintiffs' motions for class certification as to both the Rule 23(b)(2) class and the Rule 23(b)(3) issues class. The action asserted on behalf of a class centers on the New Jersey Department of Education's ("NJDOE") system for processing and issuing decisions on due process petitions filed by children with disabilities and their families under the Individuals with Disabilities Educations Act ("IDEA"), 20 U.S.C. Section 1400, et seq. The matter involves allegations that New Jersey's dispute resolution system for special education matters violates the IDEA on a systematic basis. The second amended complaint brings claims under the IDEA and 42 U.S.C. Section 1983 related to the Defendants' alleged endemic failure to decide due process petitions within the 45-day timeframe guaranteed by the IDEA. It asks the Court to remedy the alleged violations by providing injunctive and declaratory relief. Since the Court issued its Nov. 24, 2020 Opinion, the parties have been earnestly engaged in discovery. After a contentious discovery period, discovery closed in November 2021. The Plaintiffs, a putative class of disabled minor children and their parents, now move to certify two classes for relief under their second amended complaint. These motions are their second attempt at class certification. The Plaintiffs' motion for certification of a class under Rule 23(b)(2) seeks to certify a class: (a) declaring NJDOE to currently be in violation of federal law, both the IDEA and its corresponding regulations, governing timelines for disposition of due process hearing requests; (b) prospectively enjoining the Defendants: i. from continuing to violate the 45 Day Rule, by requiring that all pending and newly filed actions be completed within 45 days of the end of the resolution period, after deducting the days related to specific extensions of time or adjournments requested by either party or by consent; and ii. from promulgating or implementing any new policies, procedures, or guidelines relevant to special education due process hearings absent further order of the Court. (c) requiring NJDOE to submit to the Court a plan to remediate the current backlog in the OAL within a specific timeframe, for the Court's approval or modification, after the Class has been given an opportunity to be heard and/or to object. The proposed class also asks that the Court appoint a special Master to develop a remediation plan with NJDOE. The Rule 23(b)(2) class as contemplated by Plaintiffs would include: All persons who, pursuant to the IDEA, filed Due Process Petitions with NJDOE on or after Feb. 1, 2005, who, after their Due Process Petition was transmitted to the OAL, did not receive a decision within 45 days thereafter, excluding the time associated with any specific adjournments made at the request of either party. These allegations specifically are intended to include those who settled or abandoned their claims prior to the expiration of the 45 day timeline. The Plaintiffs also seek to certify an issues class under Rule 23(b)(3) by way of Rule 23(c)(4). This class contemplates relief granted in the form of the Court answering certain legal and factual questions that Plaintiffs contend affect the entire putative class. These questions include: (a) How long has NJDOE been systemically violating the 45 Day Rule; and (b) Whether NJDOE's misrepresentations amounted to wrongful concealment, thus satisfying the first prong of the fraudulent concealment doctrine for purposes of tolling the statute of limitations; and (c) Whether New Jersey's entire controversy doctrine would preclude the commencement of subsequent individual actions against NJDOE, seeking substantive equitable relief not sought on behalf of class members in this action, such as (i) compensatory education, (ii) reimbursement of tuition or the cost of specific services, or (iii) reimbursement of attorneys' fees, where the right to those remedies have been waived against the Local Educational Agency (LEA) as a result of NJDOE's broken dispute resolution system. The proposed class definition is completely coextensive with the definition proposed for the Rule 23(b)(2) class. The Defendants oppose the certification of either class. They attack the Plaintiffs' motions for class certification on ascertainability grounds, that the Plaintiffs cannot meet the Rule 23(b) requirements, and the Rule 23(c)(4) requirements. The Plaintiffs filed reply briefs in further support of their motions, addressing each of the arguments in the Defendants' opposition. Motion for Class Certification under Rule 23(b)(2) Federal Rule of Civil Procedure 23(b)(2) allows plaintiffs to seek to certify a class where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." As a prerequisite to meet this standard, a putative class must also satisfy Rule 23(a), which requires a showing of numerosity, commonality, typicality, and adequacy of representation. Judge Hillman opines that (i) all of the circumstantial evidence taken together takes making a numerosity finding out of the realm of speculation and into the realm of appropriate inference; (ii) the claims at issue implicate a "uniform course of conduct common to all class members subject to common proof in a single trial"; (iii) the claims of the proposed class representatives are typical enough of the putative class that it is assured that the representatives will work to benefit the class as a whole by pursuing their own goals; (iv) the proposed class representatives have litigation goals that sufficiently overlap with those of the putative class members such that adequacy is met; and (v) the proposed class counsel appear to have sufficient experience and overlapping unconflicted interests to adequately represent the putative class. Judge Hillman also finds that the class is cohesive enough such that certification under Rule 23(b)(2) is appropriate. Despite the Defendants' arguments to the contrary, he does not see "disparate factual circumstances" that warrant refusal to certify the Rule 23(b)(2) class. Finally, and also critically, the Plaintiffs are not asking for monetary damages, which is the usual stumbling block to certifying a Rule 23(b)(2) class. Because it is satisfied that the factors relevant to certification have been met and that the certification of the class will not per se preclude future damages actions, Judge Hillman grants the Plaintiffs' motion to certify the Rule 23(b)(2) class. Motion for Class Certification Under Rule 23(b)(3) The Plaintiffs also seek certification of an "issues class" pursuant to Rule 23(b)(3) and 23(c)(4). Under Rule 23(b)(3), in addition to meeting the factors under 23(a), the proposed class must satisfy the requirements of predominance and superiority. Judge Hillman finds that the 23(a) factors have been met for much the same reasons that it found they were satisfied for the 23(b)(2) class. For avoidance of any doubt, however, he adds further exposition on each element as they pertain to this motion. He holds that (i) for the same reasons that numerosity was satisfied for the 23(b)(2) class, it is satisfied; (ii) the factual and legal issues, like those at issue in the certification motion for the Rule 23(b)(2) class, revolve around "the same injury," that the Court can resolve in one consolidated trial; (iii) the questions relevant to this issues class are the same the proposed class representatives assert on behalf of the putative class members; and (iv) just as is the case with the Rule 23(b)(2) class, both class counsel and the class representatives are well-qualified to represent the class. Judge Hillman also finds that predominance has been satisfied. The issues for which the Plaintiffs seek certification relate to: (1) how long NJDOE has been violating the 45-day rule, (2) whether NJDOE made fraudulent misrepresentations, (3) and whether the entire controversy doctrine per se bars later individual damages actions. Each of these issues would not require "individualized review" in order to dispose of them. He also finds that a class action is a superior method to resolve the issues that the Plaintiffs present for the 23(b)(3) issues class. As to the ascertainability requirement, finds that the class is ascertainable because there should be objective records in the Defendants' possession that could readily identify class members. It would truly to be ironic to deny the Plaintiffs the superior method of class certification in a dispute of this kind because the Defendant's disregard of federal law was so complete and pervasive, their record keeping so poor, that they feel emboldened to argue Plaintiffs cannot prove their case. With respect to the the factors set forth in Russell v. Educ. Comm'n for Foreign Med. Graduates, 15 F.4th 259, 270 (3d Cir. 2021), Judge Hillman states that the Third Circuit enumerated nine key factors that a district court should analyze when considering certifying a 23(c)(4) class. These are: the type of claim(s) and issue(s) in question; the overall complexity of the case; the efficiencies to be gained by granting partial certification in light of realistic procedural alternatives; the substantive law underlying the claim(s), including any choice-of-law questions it may present and whether the substantive law separates the issue(s) from other issues concerning liability or remedy; the impact partial certification will have on the constitutional and statutory rights of both the class members and the defendant(s); the potential preclusive effect or lack thereof that resolution of the proposed issue class will have; the repercussions certification of an issue(s) class will have on the effectiveness and fairness of resolution of remaining issues; the impact individual proceedings may have upon one another, including whether remedies are indivisible such that granting or not granting relief to any claimant as a practical matter determines the claims of others; and the kind of evidence presented on the issue(s) certified and potentially presented on the remaining issues, including the risk subsequent triers of fact will need to reexamine evidence and findings from resolution of the common issue(s). Based on these factors, Judge Hillman opines that he certainly cannot guarantee what a future court might decide regarding preclusion issues. He is specifically certifying the class with the understanding that it would be efficient to resolve certain issues in the class action forum and leave damages issues to individual actions. While this certainly does not guarantee what a subsequent court might do, it appears to be the only viable way forward to conclusively resolve the issues in the case once and for all. Therefore, he finds that certification of the issues class is appropriate. As to the appointment of class counsel under Rule 23(g), Judge Hillman finds that John Rue & Associates, LLC ("JR&A"), along with collaborating counsel, Walsh Pizzi O'Reilly Falanga LLP, Reisman Carolla Gran & Zuba LLP, Law Offices of David R. Giles, Law Office of Denise Lachantin Dwyer LLC, Wasserman Legal LLC, and Thurston Law Office, LLC, all have put in significant work already in prosecuting the action. He has not seen anything over the pendency of the action or the briefing on this motion to suggest that their investigatory work and litigation has been inadequate. In fact, the Court has the opposite impression. For the reasons he expressed Judge Hillman grants the motions for class certification as to both the Rule 23(b)(2) class and the Rule 23(b)(3) issues class. He also appoints the proposed class counsel as counsel for both classes under Rule 23(g). Judge Hillman also orders that the parties will have 30 days to meet and confer on a form of notice, the method of dissemination of that notice, and the database of potential class members to whom the notice will be distributed pursuant to Rule 23(c)(2). The Plaintiffs will provide the Court with a status update at the expiration of the 30-day period, if not earlier, by letter filed on the docket. An appropriate Order will be entered. A full-text copy of the Court's Aug. 19, 2022 Opinion is available at https://tinyurl.com/skbsp7df from Leagle.com. CATHERINE MERINO REISMAN REISMAN CAROLLA GRAN & ZUBA LLP, HADDONFIELD, NJ, ROBERT CRAIG THURSTON -- info@thurstonlawpc.com -- THURSTON LAW OFFICES LLC, CHERRY HILL, NJ, JOHN DOUGLAS RUE -- john@johnruelaw.com -- LISA MARIE QUARTAROLO -- lquartarolo@johnruelaw.com JOHN RUE & ASSOCIATES, LAKE HOPATCONG, NJ, DONALD A. SOUTAR, KRISTA LYNN HALEY, SARAN QIANA EDWARDS JOHN RUE AND ASSOCIATES, JEFFREY IAN WASSERMAN, WASSERMAN LEGAL LLC, FLORHAM PARK, NJ, THOMAS JOSEPH O'LEARY DAVID DANA CRAMER, HECTOR DANIEL RUIZ, WALSH PIZZI O'REILLY FALANGA LLP, NEWARK, NJ, DAVID R. GILES, SOUTH ORANGE, NJ, DENISE LANCHANTIN DWYER, LAW OFFICE OF DENISE LANCHANTIN DWYER LLC, PRINCETON JUNCTION, NJ, Counsel for the Plaintiffs. ERIN IRENE HERLIHY, COLIN KLIKA, CAROLYN G. LABIN, DAVID LEE KALISKY, STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL, TRENTON, NJ, Counsel for the Defendants. LAURIE LEE FICHERA STATE OF NEW JERSEY, DIVISION OF LAW, TRENTON, NJ, Counsel for OAL JENNIFER N. ROSEN VALVERDE -- jnrval@law.rutgers.edu -- EDUCATION LAW CENTER RUTGERS UNIVERSITY SCHOOL OF LAW, NEWARK, NJ, Counsel for Amici Curiae SPAN Parent Advocacy Network; Advocates for Children of New Jersey; Council of Parent Attorneys and Advocates; Disability Rights New Jersey; Educational Law Center; NJ Special Education Practitioners; Volunteer Lawyers for Justice; Esther Canty-Barnes, Esq.; and Jennifer N. Rosen Valverde, Esq. NEW MEXICO: Court Grants Bid to Dismiss Valdez Complaint v. Grisham ------------------------------------------------------------------- In the case, TALISHA VALDEZ, on behalf of herself and others similarly situated, and JENNIFER BLACKFORD, on behalf of herself and others similarly situated, Plaintiffs v. MICHELLE LUJAN GRISHAM, Officially and Individually, Acting Under the Color of Law, and DAVID SCRASE, Officially and Individually, Acting Under the Color of Law, Defendants, Case No. 21-cv-783 MV/JHR (D.N.M.), Judge Martha Vazquez of the U.S. District Court for the District of New Mexico grants the Defendants' Motion to Dismiss Plaintiffs' Verified Complaint. Since its emergence last year, the novel coronavirus 2019, or Sars-CoV-2, the virus that causes COVID-19, has spread exponentially through the world, and New Mexico has been no exception. Gov. Grisham first declared the existence of a Public Health Emergency in New Mexico in March 2020, when COVID-19 reached our State, and has since renewed that declaration. As of July 15, 2022, over 88.7 million people have been infected with COVID-19 in the United States, with over 1,017,000 related deaths, and the New Mexico Department of Health ("DOH") has reported over 575,000 positive COVID-19 cases and 8,000 related deaths in New Mexico. Efforts to develop and distribute a vaccine against COVID-19 were swift. In February 2020, the United States Department of Health and Human Services declared a public emergency and instructed the United States Food and Drug Administration ("FDA") to grant emergency use authorizations ("EUA") for "medical devices and interventions" to combat the pandemic, including vaccines. The FDA issued detailed guidance to vaccine manufacturers, requiring a determination that the vaccine's benefits outweigh its risks based on data from at least one well-designed Phase 3 clinical trial that demonstrates the vaccine's safety and efficacy in a clear and compelling manner. Three vaccine candidates emerged as frontrunners: Pfizer/BioNTech and Moderna's two-dose mRNA vaccines, and Johnson & Johnson's single-dose viral vector vaccine. Since the three vaccines originally received EUA status, over 601 million doses have been administered and over 20.2 million Americans have been fully vaccinated. With the first EUAs for covid vaccines, New Mexico put into motion one of the most efficient vaccine rollouts in the United States. By April 2021, New Mexico had reached the second highest vaccination rate in the country. As the number of vaccinated New Mexicans grew and scientific studies showed that the vaccines were safe and effective in preventing severe illness, Gov. Grisham and the DOH began to lift restrictions on businesses and travel into the state, and to shift pandemic mitigation strategies toward vaccine and mask mandates. Quickly following the reopening of New Mexico, however, the "highly transmissible" Delta variant emerged, soon accounted for virtually all new infections, and caused a "significant increase in new COVID-19 cases." To stem the tide of new cases and ease the pressure on our hospitals, on Aug. 17, 2021, New Mexico Department of Health Acting Secretary David R. Scrase, M.D., issued "Public Health Emergency Order Requiring All School Workers Comply with Certain Health Requirements and Requiring Congregate Care Facility Workers, Hospital Workers, and Employees of the Office of the Governor Be Fully Vaccinated" (the "August 2021 PHO"). While New Mexico was still experiencing a "significant increase in new COVID-19 cases" as a result of the Delta variant, the CDC identified yet another new variant of concern, "Omicron." In the face of the newly discovered Omicron variant, Gov. Grisham and the DOH issued a public health order mandating that certain individuals, again including health care and congregate care workers, receive booster vaccines. On Aug. 19, 2021, the Plaintiffs commenced the instant action by filing their Verified Class Action Complaint for Civil Rights Violations under 42 U.S.C. Section 1983; Violations of Rights Protected by the New Mexico Civil Rights Act; Emergency Request for a Temporary Restraining Order; Request for Preliminary Injunction, Permanent Injunctive Relief and Damages. Named Plaintiff Blackford is a registered nurse employed by Presbyterian. She asserts that the August 2021 PHO "requires that she be terminated if she refuses to be vaccinated for COVID-19," and that, based on her "medical training and her own independent research," she is "opposed to receiving the EUA covid vaccines." Named Plaintiff Valdez, on behalf of herself and her 11- and 12-year-old daughters, had contracted to exhibit their animals at the New Mexico State Fair. She asserts that the August 2021 PHO "prohibits her and her children from attending the New Mexico State Fair and showing their animals," and that she has chosen "not to be vaccinated" and "to refuse to have her child injected with an experimental EUA vaccine." Together, the Plaintiffs claim that the August 2021 PHO's vaccine requirements violate the Federal Food, Drug, and Cosmetic Act ("FDCA"), their federal constitutional rights to equal protection, substantive due process, and procedural due process, their rights under Article 1, Section 10 of the United States Constitution, and their rights under the New Mexico Constitution. As a result of these alleged violations, they request declaratory relief, "a temporary restraining order to prohibit the Defendants from enforcing public health orders against them and the other putative class members that are similarly situated," a preliminary injunction "to prohibit the Defendants from enforcing public health orders in the arbitrary and capricious manner and fashion engaged by Defendants," and actual and punitive damages. In an Order entered on Aug. 23, 2021, the Court denied the Plaintiffs' request for entry of an emergency order on an ex parte basis, explaining that Plaintiffs did not meet the requirements of Rule 65(b)(1) of the Federal Rules of Civil Procedure that would entitle them to a temporary restraining order "without written or oral notice to the adverse party or its attorney." The Court, however, set an expedited briefing schedule on the Plaintiffs' request for preliminary relief. Id. Later that day, Plaintiffs filed a motion asking the Court to reconsider its decision. In an Order entered on Aug. 25, 20121, the Court denied the Plaintiffs' motion, explaining that Plaintiffs provided no basis for the Court to use its inherent authority to reconsider its decision to refrain from issuing an order enjoining enforcement of the August 2021 PHO without providing Defendants with an opportunity to respond. In a Memorandum Opinion and Order entered on Sept. 13, 2021, the Court denied the Plaintiffs' request for a preliminary injunction. It explained that, to obtain preliminary injunctive relief, the Plaintiffs were required to prove that they were substantially likely to succeed on the merits of their claims, that they would suffer irreparable injury if the Court denied the requested injunction, that the balance of harms weighed in their favor, and that the injunction would not be adverse to the public interest. The Court found that the Plaintiffs failed to satisfy their burden as to any, let alone all, of these factors and that, accordingly, they were not entitled to an order enjoining the August 2021 PHO. The Plaintiffs filed an interlocutory appeal and, in an Order and Judgment entered on June 14, 2022, the Tenth Circuit affirmed the denial of a preliminary injunction. It found, inter alia, that the Court did not abuse its discretion in concluding that Ms. Blackford was not substantially likely to succeed on the merits of her substantive due process and equal protection claims. On Sept. 2, 2021, the Defendants filed their Motion to Dismiss Plaintiffs' Verified Complaint. The Plaintiffs filed a response in opposition on Sept. 13, 2021, and the Defendants' reply followed on Sept. 27, 2021. The Defendants' Motion to Dismiss is now before the Court. In their Motion to Dismiss, the Defendants argue that the Complaint should be dismissed in its entirety for failure to state a claim. They additionally argue that, as to the Plaintiffs' federal constitutional claims brought pursuant to Section 1983, the Defendants, in their individual capacity, are entitled to dismissal based on qualified immunity. As to the FDCA claims, the Plaintiffs allege that, by mandating that certain individuals be vaccinated against COVID-19, the August 2021 PHO violates the FDCA, because the provisions of the FDCA relevant to medical products under an EUA "state that where a medical product is 'unapproved' then no one may be mandated to take it." Judge Vazquez finds that the Defendants are not "directly administering the vaccine" to hospital workers and individuals who seek entry into the State Fair; instead, they are requiring such individuals "to obtain the vaccine from a medical provider and to attest that they have been vaccinated, save for certain exemptions." The individuals "will be informed of the risks and benefits of the vaccine and of the option to accept or refuse the vaccine by their medical providers." Accordingly, to the extent that the vaccines at issue here remain subject to the EUA provisions of the FDCA, the August 2021 PHO does not run afoul of those provisions. Notably, in their Response to Defendants' Motion to Dismiss, the Plaintiffs do not mention, much less refute, the Defendants' arguments in support of dismissal of the FDCA claims. Because the Plaintiffs appear to have abandoned their FDCA claims, and because those claims are meritless, Judge Vazquez dismisses them. As to their substantive due process claims, the Plaintiffs generally allege that they "have constitutionally protected liberty interests" "in their right to live without arbitrary governmental interference under the Fourteenth Amendment," their right "to bodily integrity under the Fourth Amendment," their right "to raise their children as they see fit" under the Fourteenth Amendment, and their right "to engage in their chosen professions" under the Fourteenth Amendment. They further allege that, because the August 2021 PHO is "not narrowly tailored," it violates these substantive due process rights. Among other things, Judge Vazquez finds that the Plaintiffs do not explain how the rights allegedly violated by the August 2021 PHO are fundamental; indeed, nowhere do they address how the right to work in a hospital or attend the State Fair, unvaccinated and during a pandemic, is "deeply rooted in this Nation's history and tradition." The Plaintiffs are not "being forcibly injected or forcibly given unwanted medical treatment," or otherwise "facing vaccination against their will." To the contrary, they remain free to choose whether to be vaccinated. For these reasons, the August 2021 PHO meets the rational basis test. Accordingly, the Plaintiffs have failed to state a substantive due process claim. With respect to their equal protection claims, the Plaintiffs allege that the Defendants are violating their equal protection rights because their "actions create a class of individuals who re punished for being unvaccinated and discriminated against without any real justifiable basis and without providing them any alternative," and "the PHO is not rationally related to achieving a compelling government purpose." As explained in the context of the Plaintiffs' substantive due process claims, the August 2021 PHO meets the rational basis test. The August 2021 PHO, including its classification of individuals as to whom vaccination requirements apply, is grounded in medicine and science, and thus is rationally related to the Defendants' legitimate purpose of protecting our community "against an epidemic of disease that threatens the safety of its members." Accordingly, they have failed to state a claim that the August 2021 PHO violates their equal protection rights. As to their procedural due process claims, the Plaintiffs allege that the August 2021 PHO deprives them of "fundamental liberties without due process of law." Because the August 2021 PHO, however, "is generally applicable" to all congregate care facility workers, hospital workers, school workers, State Fair attendees, and Governor's office staff, the Plaintiffs "are not entitled to process and beyond the notice provided by the enactment and publication of the PHO itself." Accordingly, they have failed to state a claim that the August 2021 PHO violates their procedural due process rights. As to their claims under Article I, Section 10 of the United States Constitution, the Plaintiffs allege that the Defendants' vaccine requirements "constitute a bill of attainder" and "impair" the contract entered into between Valdez and her children "to participate in the New Mexico State Fair junior livestock competitions" and Blackford's "employment contract," in violation of Article I, Section 10 of the United States Constitution. Judge Vazquez opines that the Plaintiffs have failed to establish a "substantial impairment" of any contractual relationship. They have not provided the Court with copies of any of the purported contracts at issue or cited to any provisions therein to demonstrate that the August 2021 PHO undermines their contractual bargain, interferes with their reasonable expectations, or prevents them from safeguarding or reinstating their rights. And indeed, the evidence available to the Court demonstrates to the contrary. Even if the Plaintiffs were able to show a substantial impairment of a contractual relationship, their claim under the Contracts Clause would fail because, just as it meets the rational basis test, the August 2021 PHO is drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose. For these reasons, the Plaintiffs have failed to state a claim that the August 2021 PHO violates the Contracts Clause of Article I, Section 10 of the United States Constitution. Finally, the Plaintiffs assert claims arising from New Mexico law, namely, that by requiring individuals to be vaccinated "to maintain employment or enjoy the benefits of an existing contract," the Defendants are violating their rights "secured by the New Mexico Constitution," and that such violation "is actionable under the New Mexico Civil Rights Act ("NMCRA")." Having determined that the Plaintiffs' federal claims are subject to dismissal, the only remaining issue is whether the Defendants violated the New Mexico Constitution. Judge Vazquez finds that this issue is best left for a state court's determination. Accordingly, she declines to exercise supplemental jurisdiction over the Plaintiff's remaining state law claims and dismisses them without prejudice. Judge Vazquez concludes that the Plaintiffs have failed to state a claim upon which relief can be granted on any of their claims allegedly arising under federal law, namely, their FDCA claims, their substantive due process claims, their equal protection claims, their procedural due process claims, and their contractual impairment claims. As a result, those claims will be dismissed with prejudice, and the Court need not reach the issue of qualified immunity. She declines to exercise supplemental jurisdiction over their state law claims and, accordingly, those claims are dismissed without prejudice. Therefore, the Defendants' Motion to Dismiss Plaintiffs' Verified Complaint is granted, as follows: The Plaintiffs' federal law claims, as set forth in Counts I through V, are dismissed with prejudice and their state law claims, as set forth in Count VI, are dismissed without prejudice. A full-text copy of the Court's Aug. 19, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/238kjp9h from Leagle.com. NIO INC: Saye Sues Over Decline in Securities Market Value ---------------------------------------------------------- Teddy J. Saye, individually and on behalf of all others similarly situated v. NIO INC., BIN LI, and WEI FENG, Case No. 1:22-cv-07252 (S.D.N.Y., Aug. 25, 2022), is brought on behalf of persons and entities that purchased or otherwise acquired NIO securities between March 1, 2021 and July 11, 2022, inclusive (the "Class Period"), to pursue claims against the Defendants under the Securities Exchange Act of 1934, as a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities. The Defendant purports to differentiate itself through technological breakthroughs and innovations, such as its battery swapping technologies (i.e., Battery as a Service) and proprietary autonomous driving technologies, including Autonomous Driving as a Service. On June 28, 2022, Grizzly Research published a report alleging, among other things, that NIO inflated its net income by about 95% through sales to a related party, Wuhan Weineng Battery Asset Co. On this news, the Company's American Depositary Shares ("ADSs" or "shares") fell $0.59, or 2.5%, to close at $22.36 per share on June 28, 2022, on unusually heavy trading volume. Then, on July 11, 2022, NIO announced that it formed a special committee to oversee an investigation into the allegations in the Grizzly Research report. On this news, the Company's shares fell $2.03, or 8.9% to close at $20.57 per share on July 11, 2022, on unusually heavy trading volume. The Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, the Defendants failed to disclose to investors: (1) that NIO pulled forward revenue by selling batteries to a related party, which owned the batteries and managed users' subscriptions; (2) that, through the related party, NIO also recognized enormous depreciation savings; (3) that, as a result of the foregoing, the Company's revenue and net loss were overstated; and (4) that, as a result of the foregoing, the Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff purchased NIO securities during the Class Period, and suffered damages as a result. NIO designs, develops, manufactures, and sells smart electric vehicles.[BN] The Plaintiff is represented by: Gregory B. Linkh, Esq. GLANCY PRONGAY & MURRAY LLP 230 Park Ave., Suite 358 New York, NY 10169 Phone: (212) 682-5340 Facsimile: (212) 884-0988 Email: glinkh@glancylaw.com - and - Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Phone: (310) 201-9150 Facsimile: (310) 201-9160 ONE CALL: Bid to Stay of Dawson Class Suit Pending Mediation Denied ------------------------------------------------------------------- In the case, CHARLES DAWSON, individually and on behalf of others similarly situated, Plaintiff v. ONE CALL MEDICAL, INC. DBA ONE CALL CARE MANAGEMENT, and ALIGN NETWORKS, Defendants, Case No. 20-cv-1188-LAB-KSC (S.D. Cal.), Judge Larry Alan Burns of the U.S. District Court for the Southern District of California denies the Joint Motion and Stipulation for Order to Stay the Action Pending Mediation. Mr. Dawson and One Call filed a Joint Motion and Stipulation for Order to Stay the Action Pending Mediation, requesting the Court stays the case until Feb. 3, 2023. The case was initially filed in San Diego County Superior Court on May 26, 2020, and later removed to federal court by One Call on June 26, 2020. Most recently, on July 22, 2022, the Court granted One Call's partial Motion to Dismiss the Second Amended Class Action Complaint ("SAC"), dismissing the Plaintiff's Unfair Competition Law claim, and leaving seven claims remaining in the case. The parties now represent that they intend on participating in a mediation scheduled to take place on Jan. 3, 2023, nearly five months from now, and they request that the Court issues a stay until Feb. 3, 2021, a month after the scheduled mediation and more than two and a half years since the case was removed to the Court. The Court has broad discretion when it comes to managing its docket and determining whether to stay a case. While Judge Burns is supportive of the parties' efforts to engage in mediation and resolve the case, he does not find good cause to delay the case for as long as requested. He therefore denies the Joint Motion. However, to the extent the parties wish to schedule a mediation to take place in the next sixty days, he will entertain granting a request to stay the case in the meantime. Otherwise, the Defendants will file an answer to the SAC within 21 days of the Order. A full-text copy of the Court's Aug. 19, 2022 Order is available at https://tinyurl.com/39zh9re6 from Leagle.com. ONEPLUS USA: Bid to Dismiss Wade Suit Granted With Leave to Amend ----------------------------------------------------------------- In the case, ERIC WADE, et al., individually and on behalf of all others similarly situated, Plaintiffs v. ONEPLUS USA CORP., Defendant, Case No. 21-cv-05811-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, grants OnePlus' motion to dismiss the first amended complaint with leave to amend. In this putative class action, the Plaintiffs sue Defendant OnePlus for unfair competition, false advertising, fraud, and related federal and state law claims arising from the design, marketing, and sale of the OnePlus 9 and OnePlus 9 Pro smartphones. On Aug. 11, 2022, the Court heard oral argument on OnePlus' motion to dismiss the FAC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Judge Freeman dismisses the FAC for lack of Article III standing, because it does not sufficiently allege that the named Plaintiffs suffered injury in fact. She finds that while the Plaintiffs allege that the smartphones at issue "contain a 'Secret Setting' that restricts -- or 'throttles' -- access to the Devices' processing power and other resources," they do not allege that they personally experienced reduced power or performance when using their smartphones. Judge Freeman finds unpersuasive OneNote's argument that the Plaintiffs also lack Article III standing because they did not comply with a condition precedent to suit contained in Section 8.2 of the applicable End User License Agreement ("EULA"). The cases cited by OneNote, addressing agreements that clearly required mediation prior to commencement of litigation, are factually distinguishable from the present case, in which the EULA requires only that the parties engage in "friendly negotiation" and does not clearly state that such negotiation is a condition precedent to litigation. Judge Freeman observes that the parties have participated in an unsuccessful mediation, which in the Court's view would satisfy the asserted condition precedent with respect to the as-yet unfiled second amended complaint. The FAC also is dismissed for failure to state a claim. With respect to the claims brought under the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. Section 1030, and the California Computer Data Access and Fraud Act ("CDAFA"), Cal. Penal Code Section 502, the Plaintiffs appear to allege both that the secret setting was installed on the smartphones at the factory before sale and that it was implemented by the push of an update after sale. If their theory is that the secret setting was factory-installed, they cannot plausibly allege that installation was "without authorization" as required to sue under certain provisions of the CFAA and CDAFA. If the Plaintiffs' theory is that the secret setting was implemented after sale, they have not alleged enough facts to make out a plausible claim. If the Plaintiffs intend to proceed on both theories, they must clarify which alleged conduct supports each claim asserted under the CFAA and CDAFA. Finally, they have not adequately alleged that they suffered losses meeting the $5,000 threshold under the CFAA, or that they suffered damage or loss as required under the CDAFA. The lack of clarity regarding the Plaintiffs' theory also affects their claim for trespass to chattels, as least one district court has held that a trespass claim cannot lie where the interference occurred prior to sale. Judge Freeman says the failure to allege injury also renders the claim for trespass to chattels subject to dismissal. Moreover, the fraud claims do not satisfy Federal Rule of Civil Procedure 9(b), and the Plaintiffs have failed to allege an actionable omission. It may be that their fraud claims will become clearer once their pleading identifies when the secret setting was installed on their smartphones. The claim for money had and received is dismissed for failure to plead a sum certain. The Plaintiffs have not adequately alleged that they suffered a loss of money or property as required for statutory standing to sue under California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code Section 17200, and California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code Section 17500. Judge Freeman notes that in order to prevail on any of their claims for equitable relief, including their UCL, FAL, and unjust enrichment claims, the Plaintiffs will have to prove that they lack an adequate legal remedy. It is her view that the Plaintiffs may assert equitable claims in the alternative to legal claims at the pleading stage. When they amend, the Plaintiffs should clarify that their equitable claims are pled in the alternative to their legal claims. Accordingly, OnePlus' motion to dismiss the FAC is granted with leave to amend. Any amended complaint will be filed by Oct. 3, 2022. The Plaintiffs may not add new claims or parties without express leave of the Court. A full-text copy of the Court's Aug. 17, 2022 Order is available at https://tinyurl.com/j65vma5a from Leagle.com. ONETOUCHPOINT INC: Luca Sues Over Inadequate Data Security ---------------------------------------------------------- Thomas Luca, on behalf of himself and all others similarly situated v. ONETOUCHPOINT, INC. (OTP), Case No. 2:22-cv-00912-PP (E.D. Wis., Aug. 9, 2022), is brought against the Defendant as a direct and proximate result of the Defendant's inadequate data security, and its breach of its duty to handle personally identifying information ("PII") or protected health information ("PHI") with reasonable care, Plaintiff's and Class Members' PII and PHI has been accessed by hackers and exposed to an untold number of unauthorized individuals. Business associates of healthcare providers that handle sensitive, PII and PHI owe a duty to the individuals to whom that data relates. This duty arises because it is foreseeable that the exposure of PII or PHI to unauthorized persons--and especially hackers with nefarious intentions--will result in harm to the affected individuals, including, but not limited to, the invasion of their private health matters. OTP is a healthcare provider vendor who provides printing and mailing marketing services to various health insurance carriers and medical providers ("Customer-Healthcare Providers"). To provide these services, OPT knowingly obtains PII and PHI from healthcare providers which Defendant then utilizes to conduct mailings on behalf of its Customer-Healthcare Providers. The Plaintiff brings this class action on behalf of individuals whose PII and PHI was provided to OTP by their healthcare providers and was accessed and/or exposed to unauthorized third parties during a data breach of OTP's system, which OTP states began on April 27, 2022, and involved "printing and mailing services" OTP provides for 34 Customer-Healthcare Providers (the "Data Breach"). Despite that OTP became aware of the Data Breach by April 28, 2022,2 it failed to notify Plaintiff and the putative Class Members within 60 days as required by law. Notably, OTP failed to notify Plaintiff of the Data Breach for three months from its discovery of the same. The Plaintiff and Class Members are now at a significantly increased risk of fraud, identity theft, misappropriation of health insurance benefits, intrusion of their health privacy, and similar forms of criminal mischief, which risk may last for the rest of their lives. Consequently, the Plaintiff and Class Members must devote substantially more time, money, and energy to protect themselves, to the extent possible, from these crimes, says the complaint. The Plaintiff is an adult who has been a citizen and resident of the Commonwealth of Pennsylvania. OTP provides online and offline traditional marketing and communication strategies to Customer-Healthcare Providers to help them find and engage patients.[BN] The Plaintiff is represented by: Gary F. Lynch, Esq. Nicholas A. Colella, Esq. Hannah Barnett, Esq. LYNCH CARPENTER, LLP 1133 Penn Ave., Fl. 5 Pittsburgh, PA 15222 Phone: (412) 322-9243 Facsimile: (412) 231-0246 Email: gary@lcllp.com nickc@lcllp.com hannah@lcllp.com ONETOUCHPOINT MIDWEST: Guertin Sues Over Data Breach ---------------------------------------------------- Robin Guertin, on behalf of herself and all others similarly situated v. ONETOUCHPOINT MIDWEST CORP., Case No. 2:22-cv-00899-SCD (E.D. Wis., Aug. 8, 2022), is brought against the Defendant for its failure to prevent the Data Breach and stop cybercriminals from accessing PHI and PII by failing to adequately train its employees on reasonable cybersecurity protocols or implement reasonable security measures, causing it to lose control over PHI and PII. The Defendant lost control over consumers' highly sensitive personal information in a data breach by cybercriminals ("Data Breach"). On April 28, 2022, the Defendant discovered encrypted files on certain of its computer systems. An investigation determined that an unauthorized third party obtained access to the Defendant's servers beginning as of April 27, 2022 (the "Data Breach"). Starting on June 3, 2022, the Defendant began notifying its business customers of the Data Breach. OTP waited another two months to start notifying persons whose personal and confidential information had been compromised of the Data Breach. The compromised information includes "protected health information" ("PHI"), including consumers' health records and assessments. The Defendant's misconduct violates state and federal and industry-standard data security policies. Indeed, the Data Breach shows that the Defendant's data security could not prevent, detect, or stop the Data Breach before cybercriminals could bypass the Defendant's and access consumers' PHI. The Plaintiff is a Data Breach victim who, prior to receiving notice that she is a data breach victim, had never heard of the Defendant. It appears the Defendant obtained her PHI in performing marketing services for the Plaintiff's healthcare insurer or provider. The Plaintiff's PHI and PII was disclosed to Humana and, Humana shared this PHI and PII with OTP. Plaintiff provided her PHI and PII trusting that it would be protected. The Plaintiff learned that her PHI had been compromised in the Data Breach only when she received the Breach Notice on August 4, 2022. As a result of the Data Breach notice, Plaintiff spent time dealing with the consequences of the Data Breach, which includes time spent verifying the legitimacy of the Notice of Data Breach, self-monitoring her accounts and credit reports to ensure no fraudulent activity has occurred. This time has been lost forever and cannot be recaptured, says the complaint. The Plaintiff is a consumer who uses Humana for healthcare-related services. ONETOUCHPOINT MIDWEST CORP. is a Wisconsin-based marketing and managed services provider.[BN] The Plaintiff is represented by: Samuel J. Strauss, Esq. Raina C. Borrelli, Esq. TURKE & STRAUSS LLP 613 Williamson St., Suite 201 Madison, WI 53703 Phone: (608) 237-1775 Facsimile: (608) 509-4423 Email: sam@turkestrauss.com raina@turkestrauss.com ORACLE AMERICA: Katz-Lacabe Sues Over Unlawful Data Surveillance ---------------------------------------------------------------- MICHAEL KATZ-LACABE; DR. JENNIFER GOLBECK; and DR. JOHNNY RYAN, individually and on behalf of all others similarly situated, Plaintiffs v. ORACLE AMERICA, INC., Defendant, Case No. 3:22-cv-04792 (N.D. Cal., Aug. 19, 2022) is an action to enforce the Plaintiffs' fundamental right to privacy, seek redress and compensation for the financial, dignitary, reputational, and relational harms Oracle has caused, and obtain a ruling that Oracle's conduct is unlawful and therefore must stop. The Plaintiffs allege in the complaint that the Defendant's business practices amounted to a deliberate and purposeful surveillance of the general population via digital and online existence. In the course of functioning as a worldwide data broker, Oracle has created a network that tracks in real-time and records indefinitely the personal information of hundreds of millions of people. Oracle sells this detailed personal information to third parties, either directly, or through its "ID Graph" and other related products and services derived from this data without the Plaintiffs' consent, assert the Plaintiffs. Given the complexity and disguised nature of Oracle's collection and use of personal information, and the lack of any direct relationship between Oracle and the Plaintiffs and Class members, there is no reasonable basis for Plaintiffs and the Class members to know the extent to which Oracle is obtaining their data, tracking them, and selling their data or services derived from their data, the suit alleges. The Plaintiff is represented by: Michael W. Sobol, Esq. David T. Rudolph, Esq. Jalle H. Dafa, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Email: msobol@lchb.com drudolph@lchb.com jdafa@lchb.com OREGON: District Court Certifies Class & Subclasses in Wyatt v. DHS ------------------------------------------------------------------- In the case, WYATT B. and NOAH F. by their next friend Michelle McAllister; KYLIE R. and ALEC R. by their next friend Kathleen Megill Strek; UNIQUE L. by her next friend Annette Smith; SIMON S. by his next friend Paul Aubry; RUTH T. by her next friend Michelle Bartov; BERNARD C. by his next friend Ksen Murry; NAOMI B. by her next friend Kathleen Megill Strek; and NORMAN N. by his next friend Tracy Gregg, individually and on behalf of all other similarly situated, Plaintiffs v. KATE BROWN; FAIRBORZ PAKSERESHT; REBECCA JONES GASTON; OREGON DEPARTMENT OF HUMAN SERVICES, Defendants, Case No. 6:19-cv-00556-AA (D. Or.), Judge Ann Aiken of the U.S. District Court for the District of Oregon, Eugene Division, issued an Opinion and Order: a. denying the Defendants' Motion to Exclude Experts; b. granting in part and denying in part the Plaintiff's Motion to Exclude Experts; c. denying the Defendants' Partial Motions to Dismiss Moot Claims; and d. granting the Plaintiffs' Motion to Certify a Class. The parties have each filed a motion to exclude expert testimony and opinions advanced by their opponent in support or opposition to class certification. The Defendants move to exclude the opinions of Bianca Wilson, Ph.D.; Sue Steib, Ph.D.; Patricia Rideout, J.D.; Alen Puckett, Ph.D; and Angelique Day, Ph.D. The Plaintiffs, in turn, move to exclude the opinions of Kevin Cahill, Ph.D., and Julie Collins, M.S.W. Judge Aiken first examines the Motions to Exclude. Dr. Wilson has a Ph.D. in psychology and has spent the last eight years researching "the role of sexual orientation, gender identity, and gender expression in the demographics and experiences of youth in foster care." Among other topics, Dr. Wilson opined that "a conservative estimate would suggest there are at least 592 LGBTQ youth out of the total of 3,102 youth ages 13 and older who spent at least one day in some kind of foster family care (using the DHS report for FFY 2018)." The Defendants move to exclude Dr. Wilson's testimony and report as unreliable, asserting that she improperly based her conclusions about the number of SGM children in Oregon foster care based on data from an earlier study of children in foster care in Los Angeles County. Judge Aiken concludes that Dr. Wilson's opinion is sufficiently supported and based on more than mere speculation. It is significant that Dr. Wilson's testimony is based on her own prior research, supported by later studies. As the Ninth Circuit observed in Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1996), a "lack of certainty is not, for a qualified expert, the same thing as guesswork." "Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry" and "it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline." Judge Aiken concludes that Dr. Wilson meets the necessary threshold of admissibility. Resolution of the weight due to her opinions must await further development. Dr. Steib has a Ph.D. in social work and a master's degree in social work. She has "45 years of child welfare experience including direct practice, agency administration, research, and consultation," and worked for 31 years in the Louisiana child welfare system as a caseworker, casework supervisor, program administrator, and statewide Director of Child Welfare Programs. Ms. Rideout has a juris doctorate and "over 30 years of experience in the child-welfare field, as a lawyer, national consultant, and agency administrator." She served as the director of Cuyahoga County Division of Children and Family Services in Cleveland, Ohio from 2011 to 2015 and as a Juvenile Court Magistrate in Toledo, Ohio. Dr. Steib and Ms. Rideout reviewed the case files of the named Plaintiffs in an effort "to objectively assess Oregon DHS practice in light of their understanding of reasonable professional standards in child welfare." The Defendants contend that Dr. Steib and Ms. Rideout improperly relied on case studies as the basis for their conclusions. They argue that the named Plaintiffs do not form a representative sample of children in DHS care and so a report derived from studying only those cases will not be sufficiently reliable. Judge Aiken concludes that Dr. Steib and Ms. Rideout have adequately set forth a basis for their expert opinions on professional standards in the area of child welfare. She therefore declines to exclude their testimony or opinions. Dr. Puckett has a Ph.D. in social welfare, as well as a master's degree in social work. She "has held a number of positions with professional experience totaling nearly 30 years in public and private child welfare agencies, children's mental health and juvenile justice organizations, and in related research and consulting work," including contributions to academic studies and consultation with state and local child welfare agencies in several states. The Puckett Report discloses in its opening paragraph that the "quantitative analysis of the Adoption and Foster Care Analysis and Reporting System ('AFCARS') data provided by Oregon Department of Human Services ('DHS') were conducted by Jared Hirsch of ABC ["A Better Childhood"] with her review and constitute much of the source information on which this report is based." Mr. Hirsch is a paralegal employed by A Better Childhood, which represents the Plaintiffs. The details of the quantitative analysis performed by Mr. Hirsch are included in Appendix B of the Puckett Report. The Puckett Report affirms, however, that the "content analysis and opinions provided in this report are solely those of the author, Alan M. Puckett." The Defendants seek to exclude Dr. Puckett's testimony and report on the basis that she "out-sourced" the "number-crunching" to Mr. Hirsch and could not independently verify the accuracy or reliability of the calculations upon which his conclusions were based. Judge Aiken holds that the circumstances surrounding the Puckett Report do not support such a conclusion, however. She finds it significant that the data in question did not originate with the Plaintiffs but was produced by Defendants in discovery and only organized by Mr. Hirsch for the purposes of Dr. Puckett's analysis. Mr. Hirsch's role in the process and the work he did are apparent on the face of the Report itself. The Defendants do not appear to challenge the authenticity of the underlying data, nor do they point to any errors in the work done by Mr. Hirsch, as set forth in Appendix B of the Puckett Report. Dr. Puckett's testimony is based on that same data, as organized by Mr. Hirsch, and the Court sees no cause to exclude Dr. Puckett's testimony or opinion. Dr. Day has a Ph.D. in interdisciplinary health sciences and a master's degree in social work. She has experience as a child protective services caseworker in Michigan and has worked for over ten years in the area of adolescent foster youth, with an emphasis on aging-out youth. The Defendants seek to exclude Dr. Day's testimony and Report on the basis that she prepared it quickly over the course of only a matter of weeks and that it is not something that could be published in a peer-reviewed journal. At her deposition, Dr. Day testified that she "loves to have three months" to prepare "a document we're proud of," but that she only had had "two and a half weeks to get this turned around." However, Dr. Day did not testify that she had insufficient time to prepare her Report, or that her methodology or conclusions were undermined by the time constraints. Judge Aiken cannot conclude that the Day Report is unreliable simply because it was prepared quickly. She concludes that Dr. Day's Report and opinion are sufficiently based on her own expertise and review of documents to meet standards for reliability. Her lack of familiarity with Oregon-specific laws or policies and the Defendants' challenges to her focus on "outcomes" in preference to written policies are matters for crossexamination at trial and go to the weight of the testimony, rather than its admissibility. Dr. Cahill has a Ph.D. in economics and a master's degree in the same field. He specializes in applied econometrics and labor economics and works on project teams examining "issues relevant to public policy" and has published work "on various topics related to applied microeconomics." The Plaintiffs object that Dr. Cahill lacks the necessary qualifications to be considered an expert. Dr. Cahill has limited experience in child welfare and testified that his only prior experience on the subject was a research project on "pathways through foster care" done in conjunction with Oregon Health and Science University. They also contend that the Cahill Report is not reliable because the Defendants have not demonstrated that he is qualified to offer expert opinions or conclusions on the AFCARS system. Judge Aiken holds that Dr. Cahill's opinions about the credibility or motives of the Plaintiffs' experts are of no use to the finder of fact and she therefore excludes Section III of the Cahill Report. She will consider the balance of the Cahill Report, insofar as it offers an assessment within the bounds of his statistical expertise. Ms. Collins has a master's degree in social administration and policy. She has 38 years of experience in child welfare, mental health, substance abuse, and managed care and is currently the vice president for practice excellence with the Child Welfare League of America ("CWLA"). She and a team of staffers from the CWLA reviewed the case files of the named Plaintiffs. Substantively, the Collins Report concluded that the 10 files of the Named Plaintiffs were too few to constitute a representative sample of the "full number of cases of children who are in the care of the state of Oregon DHS," and that the named Plaintiffs "are not typical of most children who enter foster care." Given that typicality and commonality are important considerations in a motion for class certification, the suggestion that Ms. Collins was speaking colloquially about those subjects in an expert report offered in opposition to just such a motion strikes the Court as farfetched. However, Judge Aiken will not exclude the Collins Report in its entirety but will instead exclude those portions of the Report that go beyond Ms. Collins' established area of expertise and cross into the realm of purely legal questions. For the reasons she set forth, Judge Aiken denies the Defendants' Motion to Exclude Expert Testimony of Dr. Wilson, Dr. Steib, Ms. Rideout, Dr. Puckett, and Dr. Day. She grants in part and denies in part the Plaintiffs' Motion to Exclude Expert Testimony of Dr. Cahill and Ms. Collins, as set forth. Next, Judge Aiken examines the Plaintiffs' motion to certify the proposed general class and subclasses. In addition to opposing the Plaintiffs' motion to certify, the Defendants move to dismiss the claims of many of the Named Plaintiffs on the basis that their claims are now moot. The Oregon Department of Human Services ("DHS") is an agency of the State of Oregon which has responsibility for the Child Welfare Agency, a subdivision of DHS. Child Welfare acts as DHS' agent in protecting the safety and welfare of children. Reports of child abuse and neglect are screened through a DHS hotline and, after review, are referred to Child Protective Services ("CPS") caseworkers for investigation. There are 10 Named Plaintiffs: Wyatt B., Noah F., Kylie R., Alec R., Unique L., Simon S., Ruth T., Bernard C., Naomi B., and Norman N. The named Plaintiffs are youths in the custody of DHS and are housed, variously, in foster homes or in facilities contracted for by DHS. They bring claims on behalf of themselves and on behalf of a class consisting of all children for whom DHS has or will have legal responsibility and who are or will be in the legal and physical custody of DHS (the "General Class"). In addition, the Plaintiffs seek to bring claims on behalf of three subclasses: (1) Children who have or will have physical, intellectual, cognitive, or mental health disabilities (the ADA Subclass); (2) Children who are or will be 14 years old and older, who are eligible for transition services and lack an appropriate reunification or other permanency plan (the Aging-out Subclass); and (3) Children who identify as sexual or gender minorities, including lesbian, gay, bisexual, queer, transgender, intersex, gender non-conforming, and nonbinary children (the SGM Subclass). The Complaint alleges that Oregon's child welfare and foster care systems are dysfunctional and plagued by systemic deficiencies. These deficiencies have been documented by the state and federal governments in a series of reviews and audits. The Plaintiffs allege that the problems identified in the audits have not been adequately addressed. The Plaintiffs allege that DHS fails to employ a minimally adequate number of caseworkers and that caseworkers are not provided with adequate training or support. They allege that DHS has failed to provide adequate support, training, or financial compensation to foster parents. They allege that it does not properly evaluate the needs of each child, which prevents caseworkers from planning appropriate placements. Children in DHS care experience abuse and neglect at rates much higher than national standards. Children with disabilities are not provided with appropriate services and treatment to ensure equal access to stable, family-like foster placement in the least restrictive environment. There have been a number of reviews and audits of DHS between 2016 and 2020, conducted by federal authorities, Oregon state auditors, and independent consulting agencies. Since the filing of the case, the circumstances of many of the named Plaintiffs have changed. The Defendants assert that the changed circumstances of these named Plaintiffs render their claims moot and subject to dismissal. The doctrine of mootness requires that "an actual, ongoing controversy exist at all stages of federal court proceedings." Judge Aiken is satisfied that the claims of the challenged Plaintiffs are inherently transitory. It is the nature of foster care systems that children will be in the care of the state for variable and sometimes unpredictable lengths of time, or even pass in and out of the system. On an even more fundamental level, concerning in particular the proposed Aging-out Subclass, children grow up. At a certain point, they will age out of the care of foster system. These changes in circumstances may happen before the Court has an opportunity to rule on the motion to certify the class. The injuries claimed by the challenged Plaintiffs are repeatable to the class, if not necessarily to the named Plaintiffs themselves, and Judge Aiken concludes that the Plaintiff has shown that the injuries claimed by the named Plaintiffs are certain to recur on other similarly situated individuals. She therefore declines to dismiss the challenged named Plaintiffs' claims as constitutionally moot. The Defendants also contend that the challenged Plaintiffs should be dismissed under the doctrine of prudential mootness. Prudential mootness is a discretionary doctrine that courts employ when a case is not moot under Article III of the U.S. Constitution, but prudence suggests the court should treat the case as moot. Judge Aiken declines to dismiss the challenged Plaintiffs under the grounds of mootness, either constitutional or prudential. Dismissal based on prudential mootness is disfavored in the Ninth Circuit, but even it were not a disfavored doctrine, she would decline to exercise its discretion to dismiss under prudential mootness because the Plaintiffs' case falls within an established exception to ordinary mootness. Finally, Judge Aiken examines the motion to certify. To prevail on a motion to certify a class, the plaintiffs must show that the proposed class meets the standards for (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. The Plaintiffs seek to certify a General Class consisting of all children in Oregon foster care, as well as three Sub-Classes--the ADA Subclass, the SGM Subclass, and the Aging-Out Subclass. The Defendants challenge use of subclasses. Federal Rule of Civil Procedure 23 provides that "when appropriate, a class may be divided into subclasses that are each treated as a class under this rule." They assert that the subclasses seek the same thing as the General Class and so the proposed subclasses are unnecessary. Defendants urge that the subclasses be collapsed into the General Class. Judge Aiken concludes, however, that the use of subclasses is appropriate in the present case, subject to limitations. She opines tha (i) the proposed General Class and all three proposed Subclasses meet the standard for numerosity; (ii) the focus is properly on the commonality and typicality of the claims and not on the merits of the claims themselves; (iii) the Plaintiffs have made a sufficient showing of a classwide deficiency in the availability of appropriate placement; (iv) the Plaintiffs have demonstrated commonality for a lack of adequate case planning in the proposed General Class; and (v) the Plaintiffs have made a sufficient showing of commonality with respect to the issues of high caseloads and chronic understaffing as they relate to the proposed General Class. Judge Aiken further concludes that (i) the Plaintiffs have demonstrated commonality with respect to the proposed ADA Subclass; (ii) the Plaintiffs have made a sufficient showing of a subclass-wide policy or practice that exposes members of the class to a significant risk of harm; (iii) for the Aging-out Subclass, the Plaintiffs have made the necessary showing of commonality; (iv) the Plaintiffs have made a sufficient showing of typicality as to the proposed General Class and all three proposed Subclasses; and (v) the Plaintiffs are adequate class representatives; (vi) Plaintiffs have met the requirements of Rule 23(b)(2); and (vii) the proposed class counsel will fairly and adequately represent the interests of the proposed class and subclasses. For the reasons she set forth, Judge Aiken denies the Defendants' Motion to Exclude Experts; grants in part and denies in part the Plaintiff's Motion to Exclude Experts; and denies the Defendants' Motions to Dismiss as Moot. She grants the Plaintiffs' Motion to Certify. The action will proceed as a class action with one General Class and three Subclasses: the ADA Subclass, the SGM Subclass, and the Aging-out Subclass. Membership in the General Class is as follows: All children for whom the Oregon Department of Human Services ("DHS") has or will have legal responsibility and who are or will be in the legal or physical custody of DHS. The following Named Plaintiffs are appointed as Class Representatives for the General Class: Wyatt B., Noah F., Kylie R., Alec R., Unique L., Simon S., Ruth T., Bernard C., Naomi B., and Norman N. Membership in the ADA Subclass is as follows: All members in the General Class who have or will have physical, intellectual, cognitive, or mental health disabilities. The following Named Plaintiffs are appointed as Class Representatives for the ADA Subclass: Bernard C., Naomi B., Unique L., Ruth T., Norman N., and Simon S. Membership in the SGM Subclass is as follows: All members of the General Class who identify as sexual or gender minorities, including lesbian, gay, bisexual, queer, transgender, intersex, gender non-conforming, and non-binary children. Named Plaintiff Bernard C. is appointed as Class Representative for the SGM Subclass. Membership in the Aging-Out Subclass is as follows: All members of the General Class who are or will be 14 years old or older, who are eligible for transition services and lack an appropriate reunification or permanency plan. The following Named Plaintiffs are appointed as Class Representatives for the Aging-Out Subclass: Bernard C., Naomi B., Norman N. Judge Aiken appoints attorneys from A Better Childhood, attorneys from Disability Rights Oregon, and the law firm Davis Wright Tremaine LLP as co-counsel for the certified General Class and each of the three certified Subclasses. A full-text copy of the Court's Aug. 17, 2022 Opinion & Order is available at https://tinyurl.com/2p96rc8d from Leagle.com. PARKMOBILE LLC: Faces Class Action Over Alleged Data Breach ----------------------------------------------------------- The class action lawsuit will continue against ParkMobile LLC for a data breach that affected 21 million users of the parking app (Baker v. ParkMobile LLC). The ParkMobile app allows users to pay for parking without having to use a traditional meter. The complaint alleges that ParkMobile was negligent in its safeguarding of consumer data, which led to the data breach of users' license plate numbers, email addresses, telephone numbers, passwords, and other mobile app account information. ParkMobile argued that the plaintiffs' negligence claim fails because the company did not have a duty to protect consumer data under Georgia law, and no personal information was affected. However, the court disagreed, holding that ParkMobile did indeed have a legal duty to protect at least some of the information that was compromised, and, as such, it was too early in the proceedings to simply accept ParkMobile's premise that sensitive information was not exposed. The data breach class action will proceed, and the court will review the merits of the allegations based on the specific facts and circumstances surrounding this data breach. We will keep you updated as this matter progresses.[GN] PIEDMONT NATURAL: Can Compel Arbitration in Ford-Allemand Suit -------------------------------------------------------------- In the case, REBECCA FORD-ALLEMAND, individually and on behalf of all others similarly situated, Plaintiff v. PIEDMONT NATURAL GAS COMPANY, INC., et al., Defendants, Case No. 1:20-cv-00192-MRB (S.D. Ohio), Judge Michael R. Barrett of the U.S. District Court for the Southern District of Ohio, Western Division, issued an Opinion & Order granting: a. Piedmont's Motion to Compel Arbitration and request to stay all proceedings; b. Intervenor Defendant Cleveland Integrity Services, Inc.'s ("CIS") Motion to Compel Arbitration and request to stay all proceedings; and c. Piedmont's Motion for Leave to File Supplemental Authority and Motion for Leave to File a Surreply. CIS is an inspection services company that hires, employs, and assigns inspection personnel to provide independent inspection oversight to its customers, i.e., to other companies. It hired the Plaintiff on July 31, 2018. On Aug. 2, 2018, CIS assigned the Plaintiff to a three month project to provide services to Piedmont -- an electric power holding company that is one of CIS's customers -- as a Safety Inspector, and the Plaintiff worked on that assignment through Nov. 7, 2018. On July 31, 2018, the Plaintiff and CIS entered into a Mutual Arbitration Agreement as part of the Plaintiff's employment with CIS. Both are signatories to the Arbitration Agreement. Piedmont is not a signatory thereto. On March 5, 2020, the Plaintiff filed her Complaint against Piedmont for overtime wages under the Fair Labor Standards Act ("FLSA") and parallel Ohio statutes. She brings her claims on her own behalf and as a putative FLSA collective and state law class action. Her Complaint does not reference CIS. In response, Piedmont filed a Motion to Compel Arbitration. CIS filed a Motion to Intervene and argued, inter alia, that intervention as a right was proper in light of CIS's status as the Plaintiff's employer, the Arbitration Agreement between her and CIS, and the fact that Piedmont has demanded indemnification from CIS in connection with the lawsuit. The Court granted CIS' Motion to Intervene, and CIS subsequently filed its Motion to Compel Arbitration. The Court's first task is to determine whether the parties agreed to a valid contract containing an arbitration provision. The Plaintiff doesn't dispute the existence of the Arbitration Agreement between herself and CIS. And Judge Barrett finds the Plaintiff's argument that she does not have, and did not agree to form, an arbitration agreement with Piedmont to "be little more than a thinly-disguised challenge to the scope of" her Arbitration Agreement with CIS. Accordingly, he finds that a valid agreement to arbitrate exists between the Plaintiff and CIS. The Court's second task is to resolve who, the Court or an arbitrator, is responsible for determining whether the Plaintiff and CIS' Arbitration Agreement covers this particular controversy or, stated differently, whether the Court or an arbitrator is responsible for determining arbitrability. To do so, it must determine whether there is "clear and unmistakable" evidence in the Arbitration Agreement that the Plaintiff and CIS agreed to arbitrate "arbitrability." Judge Barrett finds that there is such evidence. The Arbitration Agreement's express incorporation of the AAA Rules into that agreement is sufficient evidence for the Court to find that that Plaintiff and CIS "clearly and unmistakably" agreed to arbitrate "arbitrability." The Court's third task, then, is to determine whether Piedmont, as a non-signatory to the Arbitration Agreement, can enforce that agreement's delegation clause. As noted, the Plaintiff argues that the dispute before the Court is one of contract formation, she did not agree to arbitrate with Piedmont, and her Arbitration Agreement with CIS does not constitute an agreement to arbitrate with Piedmont. Piedmont and CIS argue that the dispute before the Court is one of contract enforceability and coverage under the Arbitration Agreement. The question of whether a non-signatory can enforce an arbitration agreement is a question of the enforceability of the arbitration clause, as to that defendant, and the question of whether a non-signatory can enforce a delegation clause is likewise a question of enforceability, not existence. The Plaintiff's challenge is not specific to the Arbitration Agreement's delegation provision. Accordingly, Judge Barrett must treat the Arbitration Agreement's delegation provision as valid and must enforce it. The question of whether Piedmont can enforce the Arbitration Agreement is thus for an arbitrator to decide. As a final matter, a stay of the case is appropriate as arbitration may not resolve all of the claims at issue, e.g., if the arbitrator determines that the underlying dispute is not arbitrable. In light of the foregoing, Judge Barrett grants Piedmont's Motion for Leave to File Supplemental Authority and Motion for Leave to File a Surreply. He grants Piedmont and CIS' respective Motions to Compel Arbitration and Stay all Proceedings. He compels the parties to submit this dispute to arbitration according to the terms of their Arbitration Agreements. The parties will notify the Court within 14 days upon the conclusion of arbitration. The matter is stayed pending the outcome of arbitration. A full-text copy of the Court's Aug. 19, 2022 Opinion & Order is available at https://tinyurl.com/4vb6jhsf from Leagle.com. PLANMEMBER SECURITIES: Rodriguez Sues Over Disclosed Private Info ----------------------------------------------------------------- VASHTI COLON RODRIGUEZ, individually and on behalf of all others similarly situated, Plaintiff v. PLANMEMBER SECURITIES CORPORATION, Defendant, Case No. 2:22-cv-05942 (C.D. Cal., August 22, 2022) is a class action against the Defendant for negligence, breach of implied contract, and the California's Unfair Competition Law. The case arises from the data breach on the Defendant's network in 2022 which compromised the Plaintiff's and Class members' names and Social Security numbers. According to the complaint, the data breach was a direct result of the Defendant's failure to: (1) take adequate and reasonable measures to ensure its data systems were protected against unauthorized intrusions, and (2) disclose that it did not have adequately robust computer systems and security practices to safeguard its customers' private information. The Defendant also failed to provide the Plaintiff and Class members accurate notice of the data breach. As a result of the Defendant's negligence and omissions, the Plaintiff and Class members have been exposed to a substantial and present risk of fraud and identity theft, says the suit. PlanMember Securities Corporation is a financial services and investments company, located in Carpinteria, California. [BN] The Plaintiff is represented by: John J. Nelson, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 280 South Beverly Drive Beverly Hills, CA 90212 Telephone: (858) 209-6941 E-mail: jnelson@milberg.com PRACTICE RESOURCES: Stewart Files Suit in N.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Practice Resources, LLC. The case is styled as James Stewart, Susan Stewart, on behalf of themselves and all others similarly situated v. Practice Resources, LLC, Case No. 6:22-cv-00890-LEK-TWD (N.D.N.Y., Aug. 25, 2022). The nature of suit is stated as Other P.I. for Breach of Contract. Practice Resources, LLC is a premier medical billing and practice management company centrally located in downtown Syracuse.[BN] The Plaintiff is represented by: Nicholas A. Migliaccio, Esq. MIGLIACCIO & RATHOD LLP 412 H Street, NE, Suite 302 Washington, DC 20002 Phone: (202) 470-3520 Email: nmigliaccio@classlawdc.com PRIMOHOAGIES FRANCHISING: Settlement in Cyberattack Suit Proposed ----------------------------------------------------------------- A settlement has been reached with PrimoHoagies Franchising, Inc. d/b/a PrimoHoagies ("PrimoHoagies") in a class action lawsuit stemming from an external criminal cyberattack which targeted PrimoHoagies' online payment platform between July 15, 2019, and February 18, 2020. PrimoHoagies made the cyberattack public on April 17, 2020. The pending class action was filed in the United States District Court for the District of New Jersey and is captioned Hozza v. PrimoHoagies Franchising, Inc. d/b/a PrimoHoagies, Case No. 1:20-cv-04966 (D.N.J.). PrimoHoagies denies any wrongdoing and that it violated any law. PrimoHoagies further maintains that it has good and meritorious defenses to Plaintiff's claims and would prevail if the case were to proceed. Nevertheless, to avoid further expense, inconvenience, and distraction of burdensome and protracted litigation, the parties have agreed to settle the claims in the lawsuit. Under the terms of the agreement, subject to certain exceptions, the proposed settlement class consists of all persons in the United States whose payment card information was used to make an online order with PrimoHoagies during the data breach that PrimoHoagies made public on April 17, 2020. Each proposed class member may be entitled to receive credit monitoring services for one year; and/or reimbursement for certain unreimbursed out-of-pocket costs and expenses and/or for lost time and effort, subject to limitations and documentation requirements. The District Court has appointed Christian Levis, Anthony M. Christina and Amanda G. Fiorilla of Lowey Dannenberg, P.C., 44 South Broadway, Suite 1100, White Plains, NY 10601, as class counsel to represent the settlement class. The court will conduct a Final Approval Hearing on March 22, 2023, to determine whether to grant final approval of the settlement. More information about the lawsuit and settlement can be found at www.hoagiesettlement.com. [GN] PROCTER & GAMBLE: Diesel Suit Removed to E.D. Missouri ------------------------------------------------------ The case styled as Kim Marie Diesel, individually and on behalf of others similarly situated v. The Procter & Gamble Company, Does 1 through 10, Case No. 22SL-CC03349 was removed from the Circuit Court of St. Louis County, to the U.S. District Court for the Eastern District of Missouri on Aug. 25, 2022. The District Court Clerk assigned Case No. 4:22-cv-00892 to the proceeding. The nature of suit is stated as Contract Product Liability for Contract Dispute. The Procter & Gamble Company -- http://www.pginvestor.com/-- is an American multinational consumer goods corporation headquartered in Cincinnati, Ohio.[BN] The Plaintiff is represented by: Daniel F. Harvath, Esq. HARVATH LAW GROUP LLC 75 W. Lockwood, Suite 1 St. Louis, MO 63119 Phone: (314) 550-3717 Email: dharvath@harvathlawgroup.com The Defendant is represented by: Britton Laurence St. Onge, Esq. POLSINELLI PC - St Louis 100 S. Fourth Street, Suite 1000 St. Louis, MO 63102 Phone: (314) 889-8000 Fax: (314) 231-1776 Email: bstonge@polsinelli.com PROCTER & GAMBLE: Taylor Sues Over Mislabeled Shave Cream --------------------------------------------------------- GREGORY TAYLOR, individually and on behalf of all others similarly situated, Plaintiff, v. THE PROCTER & GAMBLE COMPANY, Defendant, Case No. 3:22-cv-01949 (S.D. Ill., Aug. 19, 2022) alleges that the Defendant manufactures, labels, markets, and sells mislabeled shave cream with aloe marketed as "Pure" under the Gillette brand ("Product"). According to the complaint, despite the front label promise the Product was "Pure," no less than ten of the fourteen ingredients are not pure, because they are significantly altered from their original or natural state. As a result of the false and misleading representations, the Product is sold at a premium price, approximately no less than $10.95 for 6 oz, excluding tax and sales, higher than similar products, represented in a non-misleading way, and higher than it would be sold for absent the misleading representations and omissions, says the suit. THE PROCTER & GAMBLE COMPANY manufactures and markets consumer products. The Company provides products in the laundry and cleaning, paper, beauty care, food and beverage, and health care segments. [BN] Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Telephone: (516) 268-7080 Email: spencer@spencersheehan.com PROGRESSIVE CASUALTY: Evans Files Suit in E.D. Washington --------------------------------------------------------- A class action lawsuit has been filed against Progressive Casualty Insurance Company. The case is styled as Lisa Evans, individually and on behalf of those similarly situated v. Progressive Casualty Insurance Company, Case No. 2:22-cv-00192-TOR (E.D. Wash., Aug. 25, 2022). The nature of suit is stated as Insurance for Insurance Contract. Progressive Casualty Insurance Co. -- https://www.progressive.com/ -- is an insurance company.[BN] The Plaintiff is represented by: Kira Meshawn Rubel, Esq. HARBOR LAW GROUP 3615 Harborview Drive, Suite C Gig Harbor, WA 98329 Phone: (253) 251-2955 Email: kira@theharborlawgroup.com PROGRESSIVE MAX: Mason Sues Over Improper Calculation of ACV ------------------------------------------------------------ MARY MASON, individually and on behalf of all others similarly situated, Plaintiff v. PROGRESSIVE MAX INSURANCE COMPANY, Defendant, Case No. 1:22-cv-00072-TSK (N.D. W. Va., August 22, 2022) is a class action against the Defendants for breach of contract, breach of covenant of good faith and fair dealing, and declaratory judgment. The case arises from the Defendant's unlawful practice of undervaluing comparable and total loss vehicles when paying actual cash value (ACV) of automobile total loss claims through arbitrary, unsupported, and unjustified adjustments. The Defendant, through its vendors, intentionally distorts data, excludes transactions that undercut its false hypothesis, and ignores market realities, all for the purpose of applying a capricious and unjustified Projected Sold Adjustment to artificially deflate the value of total loss vehicles. As a result of the Defendant's misconduct, the Plaintiff and Class members have suffered damages, says the suit. Progressive Max Insurance Company is an insurance firm, with its principal place of business in Ohio. [BN] The Plaintiff is represented by: Rodney A. Smith, Esq. M. Alex Urban, Esq. ROD SMITH LAW PLLC 108 1/2 Capitol Street, Suite 300 Charleston, WV 25301 Telephone: (304) 342-0550 Facsimile: (304) 344-5529 E-mail: rod@LawWV.com aurban@LawWV.com - and – Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and – Scott Edelsberg, Esq. Christopher Gold, Esq. EDELSBERG LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (786) 289-9471 Facsimile: (786) 623-0915 E-mail: scott@edelsberglaw.com chris@edelsberglaw.com PULTE HOME: M.D. Florida Denies Bid to Certify Class in Mount Suit ------------------------------------------------------------------ In the case, BEVERLY MASSEY MOUNT; TERESA JOHNSON; SHAQUATAN NICOLE FLEMMING; QUINEISHA HYLTON; and NATHANIEL JACKSON, Plaintiffs v. PULTE HOME COMPANY, LLC; and S&ME, INC., Defendants, Case No. 6:20-cv-2314-RBD-LRH (M.D. Fla.), Judge Roy B. Dalton, Jr. of the U.S. District Court for the Middle District of Florida, Orlando Division, denies the Plaintiffs' Motion for Class Certification without prejudice. The case involves the historic Oakland Tildenville Cemetery, located along State Road 50. SME designed and Pulte built a new luxury residential subdivision just west of the Cemetery. Residents had to drive through Oakland to get to the Subdivision, so for easier access, the Defendants built a new drive to the Subdivision directly off SR-50, running along the east side of the Cemetery. Before they built the Drive, runoff water allegedly flowed east from the Cemetery along SR-50 and into retention ponds on adjacent property. But when the Drive was built between the Cemetery and that adjacent property, it allegedly became clear the Drive would flood. So, after obtaining a permit, the Defendants built a culvert that diverted water off the Drive and back in the opposite direction -- west, toward the Cemetery. In September 2020, it rained heavily in Oakland. The Defendants' culvert did what the Plaintiffs say it was meant to do -- diverted the water off the Drive and into the Cemetery. The resulting flood in the Cemetery was so severe that caskets and remains rose up out of the ground, "disturbing and desecrating the generations of graves and remains that had been laid to rest there" and making it "too dangerous to visit." The Plaintiffs, who are families of the deceased buried at the Cemetery, then brought the class action suit against the Defendants. The Complaint asserts claims for: (1) injunctive and declaratory relief, seeking to bar Defendants from further intruding on the Cemetery; (2) nuisance; (3) tortious interference with remains; (4) intentional infliction of emotional distress ("IIED"); and (5) interference with easement rights, as well as punitive damages. After several extended rounds of briefing, the pleadings finally closed. The Plaintiffs now move to certify the matter as a class action, with the class of families defined as, "All those who are or were next of kin of any decedent laid to rest at Oakland Tildenville Cemetery on or before Sept. 28, 2020." With another extended round of briefing, the class certification Motion is ripe. The party seeking class certification bears the burden of proof. A proposed class must first be "adequately defined and clearly ascertainable." If this requirement is met, courts then turn to the four requirements of Rule 23(a): Numerosity, commonality, typicality, and adequacy of representation. Finally, to certify a Rule 23(b)(3) class action, "the questions of law or fact common to class members must predominate over any questions affecting only individual members" and the class action must be "superior to other available methods." The certification analysis often "overlaps with the merits of the plaintiff's underlying claim." Judge Dalton finds that the Plaintiffs have standing to seek monetary relief. They allege emotional distress -- a concrete injury. They trace the distress to the Defendants' conduct -- constructing a culvert that flooded the Cemetery -- and they seek to redress their injuries with money damages. Article III requires no more. Thus, the Plaintiffs have standing. Next, Judge Dalton turns to the Plaintiffs' proposed class: "All those who are or were next of kin of any decedent laid to rest at Oakland Tildenville Cemetery on or before Sept. 28, 2020." He finds that the proposed class is adequately defined. Membership is based on a legal term -- next of kin -- determinable by reference to objective statutory definitions. So the class is ascertainable. With respect to Rule 23(a), Judge Dalton finds that (i) the putative class asserts they have been retained by over 350 next of kin, making it numerous enough to prevent practicable joinder other than by class treatment; (ii) commonality is easily met as there is at least one overarching question that affects the class: did the Defendants cause the Cemetery to flood?; (iii) the named representatives submitted discovery responses identifying themselves as next of kin and suffering the same or similar injuries as the rest of the class based on the interference with their gravesite rights given the overarching common issue: the cause of the flood; and (iv) the putative class counsel are experienced, and there is no affirmative showing they could not protect the interests of the class. With the Rule 23(a) requirements met, Judge Dalton turns to the more challenging requirements of Rule 23(b). Rule 23(b) offers two certification paths: Rule 23(b)(2) is reserved for classes seeking class-wide injunctive relief, whereas Rule 23(b)(3) is available where class-wide questions predominate and class litigation is the superior method of adjudication. The Plaintiffs mainly focus on the latter vehicle. The Plaintiffs bring four monetary claims: (1) nuisance; (2) tortious interference with remains; (3) IIED; and (4) easement interference. Judge Dalton holds that each is anchored to the contention that the Defendants desecrated graves by diverting floodwater into the Cemetery. These claims feature several common issues. However, he finds that it is unclear whether all floodwater in the Cemetery was attributable to the culvert. So on the current record, he cannot sufficiently determine whether these core issues -- which cut across all four claims -- are susceptible to common evidence or not. With it being unclear whether certain key questions are susceptible to common proof, Judge Dalton cannot conclude -- at this point -- that common issues predominate. Proof of causation especially could require nuanced scientific evidence. The critical question, then, is whether the Plaintiffs can prove through common evidence that all floodwater in the Cemetery affected all graves and was attributable to the culvert. Ranson's affidavit suggests that these issues are susceptible to common evidence, but the conclusory nature of that affidavit and the photographs prevents the Court from determining that at this stage. But more discovery -- the bulk of which has taken place during the pendency of the Motion, and which will close soon on the merits -- will likely clarify the issue. So while the Motion is due to be denied, it is only without prejudice subject to renewal. Accordingly, Judge Dalton denies the Plaintiffs' Motion without prejudice. Having found the rest of the prerequisites met, noting that added discovery may make the common proof and causation questions clearer as they are tied up in the merits liability inquiry, and with the overall case discovery closing soon, he finds that renewal of the certification motion is permitted. He permits the Plaintiffs to renew their motion by Dec. 5, 2022, via a brief of no more than 15 pages, with the Defendant's response due by Dec. 30, 2022, and limited to 10 pages. The parties need not address the threshold or Rule 23(a) inquiries, as the Court has found those satisfied; the briefing should solely address whether the Rule 23(b)(3) inquiry is satisfied and provide more evidence as necessary. A full-text copy of the Court's Aug. 17, 2022 Order is available at https://tinyurl.com/ckkywnxm from Leagle.com. RAGAN & RAGAN: Conditional Certification of Settlement Class Sought ------------------------------------------------------------------- In the class action lawsuit captioned as RUBINO v. RAGAN & RAGAN, P.C., et al., Case No. 2:21-cv-20288-KSH-AME (D.N.J.), the Parties ask the Court to enter an order: 1. granting conditional certification of a settlement class defined as: "New Jersey consumers who were sent letters from the Defendant which included an information subpoena and/or a Notice of Waiver of Rights, in an attempt to collect a judgment on behalf of any creditor;" 2. approving conditionally the settlement of this action upon the terms and conditions set forth in the Class Action Settlement Agreement; 3. conditionally approving the defined Class for the purposes of Settlement; 4. setting a date, time and place for a Fairness Hearing; and 5. granting the parties to this action and the Class such other and further relief as this Court may deem just and proper. Ragan & Ragan is a law firm representing commercial, retail and medical creditors. A copy of the Parties motion dated Aug. 9, 2022 is available from PacerMonitor.com at https://bit.ly/3CE0dCZ at no extra charge.[CC] The Plaintiff is represented by: Benjamin Wolf, Esq. JONES, WOLF & KAPASI, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 Facsimile: (973) 244-0019 E-mail: bwolf@legaljones.com The Defendant is represented by: Jason M. Myers, Esq. LONDON FISCHER, LLP 59 Maiden Lane New York, NY 10038 Telephone: (212) 972 1000 Facsimile: (212) 972 1030 E-mail: jmyers@londonfischer.com RARI NUTRITION: Weinholtz Files Suit in S.D. California ------------------------------------------------------- A class action lawsuit has been filed against Rari Nutrition LLC. The case is styled as Silver Weinholtz, on behalf of all those similarly situated v. Rari Nutrition LLC, Case No. 3:22-cv-01255-MMA-JLB (S.D. Cal., Aug. 25, 2022). The nature of suit is stated as Contract Product Liability. Rari Nutrition -- https://www.rarinutrition.com/ -- is a brand name that provides natural pre workout supplements.[BN] The Plaintiff is represented by: Charles C. Weller, Esq. 11412 Corley Court San Diego, CA 92126 Phone: (858) 414-7465 Fax: (858) 300-5137 Email: legal@cweller.com REBECCA ATWOOD DESIGNS: Hwang Files ADA Suit in E.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Rebecca Atwood Designs LLC. The case is styled as Jenny Hwang, on behalf of herself and all others similarly situated v. Rebecca Atwood Designs LLC, Case No. 1:22-cv-05039 (E.D.N.Y., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rebecca Atwood -- https://rebeccaatwood.com/ -- is a Brooklyn-based designer & artist offering original collection of home textiles blends traditional textile techniques & hand painting.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com ROTO ROOTER: Perez Suit Removed to C.D. California -------------------------------------------------- The case styled as Ignain Perez, on behalf of himself and all others similarly situated and all aggrieved employees v. Roto Rooter Services Company, Does 1 through 100, inclusive, Case No. 30-02022-01258876 was removed from the Orange County Superior Court, to the U.S. District Court for the Central District of California on Aug. 11, 2022. The District Court Clerk assigned Case No. 8:22-cv-01508-CJC-ADS to the proceeding. The nature of suit is stated as Other Labor for Labor/Mgmnt Relations. Roto-Rooter Sewer & Drain Service -- https://www.rotorooter.com/ -- provides drain cleaning, septic tank pumping, commercial plumbing and residential plumbing services to the Grand Forks, ND area.[BN] The Plaintiff is represented by: John F Litwin, Esq. Gregory P Wong, Esq. Barkhordarian Law Firm PLLC 6047 Bristol Parkway 2nd Floor Culver City, CA 90230 Phone: (323) 450-2777 Fax: (310) 215-3416 Email: john@barklawfirm.com greg@barklawfirm.com The Defendant is represented by: Spencer C Skeen, Esq. Cameron O'Brien Flynn, Esq. Jesse C Ferrantella, Esq. OGLETREE DEAKINS NASH SMOAK AND STEWART P.C. 4660 La Jolla Village Drive Suite 900 San Diego, CA 92122 Phone: (858) 652-3100 Fax: (858) 652-3101 Email: spencer.skeen@ogletree.com cameron.flynn@ogletreedeakins.com jesse.ferrantella@ogletreedeakins.com SASOL LTD: Order & Final Judgment Entered in Moshell Class Suit --------------------------------------------------------------- Judge John P. Cronan of the U.S. District Court for the Southern District of New York enters Order and Final Judgment in the case, CHAD LINDSEY MOSHELL, Individually and On Behalf of All Others Similarly Situated, Plaintiff v. SASOL LIMITED, DAVID EDWARD CONSTABLE, BONGANI NQWABABA, STEPHEN CORNELL, PAUL VICTOR, and STEPHAN SCHOEMAN, Defendants, Case No. 1:20-cv-01008-JPC (S.D.N.Y.). On Aug. 18, 2022, a hearing was held before the Court to determine: (1) whether the terms and conditions of the Stipulation and Agreement of Settlement dated April 1, 2022 are fair, reasonable, and adequate for the settlement of all claims asserted by the Settlement Class against the Defendants, including the release of the Released Claims against the Releasees, and should be approved; (2) whether judgment should be entered dismissing the Action with prejudice; (3) whether to approve the proposed Plan of Allocation as a fair and reasonable method to allocate the Net Settlement Fund among Settlement Class Members; (4) whether and in what amount to award counsel previously appointed by the Court as Lead Counsel, as fees and reimbursement of expenses; and (5) whether and in what amount to award Lead Plaintiff and Additional Plaintiff Representative as incentive fees. The Notice, substantially in the form approved by the Court in the Court's Order Granting Lead Plaintiff's Motion for Preliminary Approval of Class Action Settlement, dated April 18, 2022, was mailed to all reasonably identifiable Settlement Class Members and posted to the website of the Claims Administrator, both in accordance with the Preliminary Approval Order and the specifications of the Court. Judge Cronan finds that, for settlement purposes only, the prerequisites for a class action under Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied. The Settlement Class is being certified for settlement purposes only. Judge Cronan finally certifies the action as a class action for purposes of the Settlement, pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of "all Persons or entities who purchased or otherwise acquired publicly traded American Depository Receipts ("ADRs") of Sasol Limited ("Sasol") from March 10, 2015, to Jan. 13, 2020, inclusive (the "Class Period")." All Settlement Class Members are bound by the Order and Final Judgment. The Settlement is approved as fair, reasonable and adequate under Rule 23 of the Federal Rules of Civil Procedure, and in the best interests of the Settlement Class. The Parties are directed to consummate the Settlement in accordance with the terms and provisions of the Stipulation. The Action and all claims contained therein, as well as all of the Released Claims, are dismissed with prejudice as against the Defendants and the Releasees. The Parties are to bear their own costs, except as otherwise provided in the Stipulation. The releasing parties, on behalf of themselves, their successors and assigns, and any other Person claiming (now or in the future) through or on behalf of them, regardless of whether any such releasing party ever seeks or obtains by any means, including without limitation by submitting a Proof of Claim Form, any disbursement from the Settlement Fund, will be deemed to have, and by operation of this Order and Final Judgment will have, fully, finally, and forever released, relinquished, and discharged all Released Claims against the Releasees. Except as otherwise provided herein or in the Stipulation, all funds held by the Escrow Agent will be deemed to be in custodia legis and will remain subject to the jurisdiction of the Court until such time as the funds are distributed or returned pursuant to the Stipulation and/or further order of the Court. Without affecting the finality of this Order and Judgment in any way, the Court retains continuing exclusive jurisdiction over the Parties and the Settlement Class Members for all matters relating to the Action. There is no just reason for delay in the entry of this Order and Final Judgment and immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. A full-text copy of the Court's Aug. 19, 2022 Order & Final Judgment is available at https://tinyurl.com/bhsm3cmx from Leagle.com. SEARCH WIZARDS: Fails to Properly Pay OT, Fairley Suit Claims ------------------------------------------------------------- ELIZABETH FAIRLEY, individually and on behalf of all others similarly situated, Plaintiff v. SEARCH WIZARDS, INC., Defendant, Case No. 8:22-cv-01905-SDM-AEP (M.D. Fla., August 19, 2022) is a collective action complaint brought against the Defendant seeking payment of back wages, including overtime compensation, liquidated damages, exemplary damages, and other relief as the Court deems proper pursuant to the Fair Labor Standards Act (FLSA). The Plaintiff was employed by the Defendant as a Global Talent Acquisitions Specialist between February 2021 and December 2021. According to the complaint, the Defendant allegedly maintained a policy that systematically prevented the Plaintiff and all other similarly situated employees from claiming all hours worked and receiving proper overtime compensation. Although the Plaintiff regularly worked 5 to 15 hours in excess of 40 hours per week, she was only ever compensated for a maximum of 7.5 hours of overtime per week and a total of 10 weeks throughout the entire course of her employment. In addition, the Defendant failed to properly track, monitor, or record the actual number of hours per day that the Plaintiff and other similarly situated employees worked, says the suit. Search Wizards, Inc. is a premier staffing agency that provides talent acquisition solutions and staff augmentation services to their corporate clients. [BN] The Plaintiff is represented by: Janet Varnell, Esq. Brian W. Warwick, Esq. VARNELL & WARWICK P.A. 1101 E. Cumberland Ave., Suite 201H, #105 Tampa, FL 33602 Tel: (352) 753-8600 Fax: (352) 504-3301 E-mail: jvarnell@vandwlaw.com bwarwick@vandwlaw.com kstroly@vandwlaw.com - and – Camille Fundora Rodriguez, Esq. Alexandra K. Piazza, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Tel: (215) 875-3000 Fax: (215) 875-4620 E-mail: crodriguez@bm.net apiazza@bm.net SILK OPERATING: Faces Suit Over Creamers' Misleading Protein Labels ------------------------------------------------------------------- Erin Shaak at classaction.org reports that a proposed class action lawsuit alleges the front label of Silk-brand Salted Caramel Almond Creamer misleadingly overstates the amount of protein in the product per serving. The 11-page complaint claims that although the creamer's maker, Silk Operating Company LLC, states on the front label that the product contains "4g Protein," this amount is based not on its serving size but the defendant's "suggested use" of four tablespoons. The back label reveals that the standard serving size for the creamer is one tablespoon, which provides only one gram of protein, the lawsuit states. Per the case, consumers who view the Silk Salted Caramel Almond Creamer's label would reasonably believe that the "4g Protein" claim refers to the amount of protein per serving and would thus be misled. The suit says consumers would not have purchased the creamer, or would have paid less for it, had they been aware of the true protein content per serving. According to the case, the front label of the Silk Salted Caramel Almond Creamer states to the right of the protein claim, "8% DV Per 4 TBSP," and below the claim, "See nutrition information for protein and added sugar content." The suit says both of these statements are "barely visible," especially when compared to the much bigger "4g Protein" claim. The product's nutrition facts panel contains two columns, one for the creamer's serving size of one tablespoon and one titled "Per Suggested Use," the complaint relays. The "suggested use" is four tablespoons, or four times the product's recommended serving size, according to the suit. The case states that the "Per Suggested Use" column is not permitted by the U.S. Food and Drug Administration and is used by the defendant only to justify the front-label "4g Protein" claim given a person would need to consume four tablespoons of the creamer to receive four grams of protein. The lawsuit goes on to argue that if a consumer follows the "suggested use" instruction and consumes four tablespoons of the Silk Almond Creamer product, they will be consuming more than three times the amount of added sugar in a one-tablespoon serving size, or 20 percent of the daily value. The case points out that consuming added sugars is "a leading factor" in obesity and other diseases. The lawsuit further claims that if consumers follow the "Suggested Use" guidelines, one bottle of the Silk creamer will provide only slightly less than 16 servings instead of the advertised 63 servings. In light of the foregoing, the Silk Salted Caramel Almond Creamer product is worth "materially less" than its value as represented by the defendant, the case claims. The lawsuit looks to cover anyone in Massachusetts, Montana, Colorado, New Mexico, Idaho, South Carolina, Utah, Mississippi and Alaska who purchased the Silk Salted Caramel Almond Creamer within the applicable statute of limitations. [GN] SNAP INC: $35-M Class Settlement in Data Collection Suit Proposed ----------------------------------------------------------------- voonze.com reports that Snap, the app's parent company Snapchat must pay US$ 35 million (about R$ 178 million) to settle a class action in Illinois, in the United States, over an alleged illegal collection of data from users of the app. The lawsuit has been pending since 2015, when a group of Illinois residents claimed that the company collects data without users' consent through filters. Now, class-action plaintiffs can receive between $58 and $117 each. Illinois is one of the US states with very good legislation stringent to protect citizens' data. The Illinois Biometric Information Privacy Act (BIPA) is what made Snap pay $35 million for its collection practices. Snap, for its part, claims that it has never violated BIPA and that it does not collect "biometric data that can be used to identify a specific person or even engage in facial identification," and that it makes everything clear in the terms of use. of the app. "WHILE WE ARE CONFIDENT THAT THE FILTERS DO NOT VIOLATE BIPA, OUT OF AN ABUNDANCE OF CAUTION AND AS PROOF OF OUR COMMITMENT TO USER PRIVACY, EARLIER THIS YEAR WE RELEASED AN IN-APP CONSENT NOTICE FOR SNAPCHATTERS IN ILLINOIS," THE SPOKESPERSON COMMENTED. FROM SNAP, PETE BOOGAARD. This is not the first time that BIPA has challenged technology companies. The law had already forced Facebook (now Meta) to pay $650 million for a lawsuit related to the automatic photo tagging feature. In June, shoppingmode Google also agreed to pay $100 million to settle a lawsuit over a face-grouping feature in shoppingmode Google Photos. The resource would also supposedly, violated the BIPA law. [GN] STARK COUNTY: White Sues Over Unpaid OT for Non-Exempt Employees ---------------------------------------------------------------- TERESA WHITE, individually and on behalf of all others similarly situated, Plaintiff v. STARK COUNTY VETERANS SERVICE COMMISSION, Defendant, Case No. 5:22-cv-01493 (N.D. Ohio, August 22, 2022) is a class action against the Defendant for unpaid overtime wages in violation of the Fair Labor Standards Act. Ms. White has been employed by the Defendant as an hourly, non-exempt employee since approximately April 2017 to the present. Stark County Veterans Service Commission is a county organization in Ohio. [BN] The Plaintiff is represented by: Joseph F. Scott, Esq. Ryan A. Winters, Esq. Kevin M. McDermott II, Esq. SCOTT & WINTERS LAW FIRM, LLC 50 Public Square, Suite 1900 Cleveland, OH 44113 Telephone: (216) 912-2221 Facsimile: (216) 350-6313 E-mail: jscott@ohiowagelawyers.com rwinters@ohiowagelawyers.com kmcdermott@ohiowagelawyers.com STARKIST CO: Seeks More Time to File Certiorari Bid in Tuna Suit ----------------------------------------------------------------- STARKIST CO., et al., filed with the Supreme Court of United States an application for an extension of time to file a petition for a writ of certiorari in the matter styled STARKIST CO. AND DONGWON INDUSTRIES CO., LTD., Applicants v. OLEAN WHOLESALE GROCERY COOPERATIVE, INC., ET AL., Respondents, Case No. 22-131. Response is due on September 9, 2022. In this case, Plaintiffs -- which represent three putative classes of direct purchasers, indirect purchasers, and consumers of packaged tuna -- brought suits against the three largest branded packaged tuna manufacturers in the United States (StarKist, Chicken of the Sea, and Bumble Bee Foods), claiming that they violated federal and state antitrust and consumer protection laws in an alleged price-fixing conspiracy. Members of the three putative classes purchased different volumes and types of packaged tuna from different sellers at different points in the supply chain through different channels and procurement methods, creating highly individualized leverage and pricing among class members. The direct purchasers' own expert admitted there was no proof that 5.5% of the proposed direct purchaser class had suffered any injury -- and, according to Defendants' expert, that number is as high as 28%. The other putative classes suffered from similar flaws, says the suit. The district court certified all three proposed classes, after relying on Plaintiffs' use of "averaged" overcharges to purportedly establish class-wide injury. In doing so, the district court also declined to resolve the experts' dispute over the extent of uninjured members in the proposed classes, concluding that the question of the extent of uninjured class members -- though "serious" -- was one for the jury at trial. The district court thus certified the direct purchaser class, notwithstanding that almost a third of the class may be uninjured. On April 8, 2022, the Ninth Circuit affirmed the district court's order certifying three subclasses of tuna purchasers who alleged that the suppliers violated federal and state antitrust laws. The Ninth Circuit held that the district court did not abuse its discretion in concluding that the purchasers' statistical regression model, along with other expert evidence, was capable of showing that a price-fixing conspiracy caused class-wide antitrust impact, thus satisfying one of the prerequisites for bringing a class action under Federal Rule of Civil Procedure 23(b)(3). The Ninth Circuit granted a rehearing en banc, and an eleven-judge en banc panel of the court issued a divided decision affirming the district court's class certification order. The panel concluded that the district court abused its discretion by not resolving the factual disputes necessary to decide the predominance requirement before certifying the classes. Accordingly, the panel vacated the district court's order and remanded for the court to determine the number of uninjured parties in the proposed class based on the dueling statistical evidence, and only then to rule on whether predominance has been established. Concurring in part and dissenting in part, Judge Andrew D. Hurwitz agreed with the majority's conclusions that the district court, not the jury, must resolve factual disputes bearing on predominance; that a district court's "rigorous analysis" of whether a putative class has satisfied Federal Rule of Civil Procedure 23's requirements should proceed by a preponderance of the evidence standard; and that the district court must conclude not that common issues could predominate at trial, but that they do predominate before certifying the class. Judge Hurwitz disagreed with the majority's conclusion that, before certifying a class, the district court must find that only a de minimis number of class members are uninjured. Accordingly, the Defendants request a 32-day extension of time within which to prepare and file a petition for a writ of certiorari in this case for reasons that: (1) As the en banc dissenters explicitly recognized, the Ninth Circuit's en banc decision "creates a circuit split" over the standards governing class certification for classes that include uninjured class members; and (2) The requested extension is warranted to permit counsel to research and, as appropriate, narrow the issues for this Court's review and prepare a petition that addresses the important questions raised by this case in the most direct and efficient manner for the Court's consideration.[BN] Defendants-Appellants-Applicants StarKist Co., et al., are represented by: Gregory George Garre, Esq. LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 Telephone: (202) 637-2207 E-mail: gregory.garre@lw.com TAKE-TWO INTERACTIVE: Court Orders Closure of Albrecht v. Zelnick ----------------------------------------------------------------- Take-Two Interactive Software Inc. disclosed in its Form 8-K Current Report filed with the Securities and Exchange Commission on August 19, 2022, that on August 11, 2022, the Court ordered the closure of the case captioned Albrecht v. Zelnick et al., C.A. No. 2022-0345-MTZ, subject to Take-Two filing an affidavit with the Court to confirm that this notice has been issued. On April 19, 2022, plaintiff Larry Albrecht ("Plaintiff") filed a putative stockholder class action complaint in the Court of Chancery of the State of Delaware (the "Court") against Take-Two Interactive Software, Inc. (the "Company" or "Take-Two") and the then-members of Take-Two's Board of Directors (collectively, the "Defendants") under the caption Albrecht v. Zelnick et al., C.A. No. 2022-0345-MTZ (the "Action") relating to the merger transaction between Take-Two and Zynga Inc. (the "Transaction"). The complaint alleged that the disclosures made in Take-Two's Form S-4 Registration Statement filed with the SEC on April 6, 2022 in connection with the Transaction omitted certain material information. The Action sought, among other forms of relief, an injunction against the Transaction. On May 5, 2022, the Company issued a Form 8-K containing supplemental disclosures that mooted the allegations in the Action. On May 10, 2022, the Court entered an order dismissing the Action as moot and retaining jurisdiction solely for the purpose of adjudicating the anticipated application of plaintiff's counsel for an award of attorneys' fees and reimbursement of expenses. The Company subsequently agreed to pay $130,000 in attorneys' fees and expenses to plaintiff's counsel in full satisfaction of the claim for attorneys' fees and expenses in the Action. On August 11, 2022, the Court entered an order closing the case, subject to Take-Two filing an affidavit with the Court confirming that this notice has been issued. In entering the order, the Court was not asked to review, and did not pass judgment on, the payment of the attorneys' fees and expenses or their reasonableness. Interactive Software Inc. is an American video game holding company based in New York City and founded by Ryan Brant in September 1993. The company owns two major publishing labels, Rockstar Games and 2K, which operate internal game development studios. TERRAFORM LABS: Faces Third Major Class Suit Over RICO Violations ----------------------------------------------------------------- thecryptobasic.com reports that TerraForm Labs (TFL), the company behind the Terra project, has been slammed with yet another class action by aggrieved investors. According to a report by legal news outlet Law360, TFL and two of its executives, including Do Kwon, were charged with violating the Racketeer Influenced and Corrupt Organizations Act. Some of the charges include the inflation of the price of TFL's algorithmic stablecoin UST and publicizing false information in the aftermath of the collapse to cover an alleged money laundering scheme to the tune of $80 million. "Defendants touted the stability of the coins and guaranteed 20% annual returns on coins deposited in Terraform Labs' high-yield savings application on the Terra blockchain -- the Anchor Protocol," an excerpt of the Law360 read. The suit was filed in New York federal court by lead Plaintiff Matthew Albright on behalf of all victims of TerraUST (UST) collapse, who purchased the stablecoin between May 1, 2019, and June 15, 2022. Aside from TFL and two of its top executives, the suit also named other top ventures as Defendants. Albright alleged that some of the defendants engaged in different money laundering activities that saw them siphoning millions of dollars to their personal cryptocurrency wallets. The lead Plaintiff also claimed that Terra's flagship stablecoin was a Ponzi scheme, which sustained its value via the demand of Anchor Protocol's excessive yields. "As long as demand for UST remained high, Terra's UST/Luna exchange mechanism will keep the supply of Luna relatively low and sustain a Luna price that could support UST's peg," Albright said, adding: "But as soon as the demand for UST fell and users began redeeming UST for Luna in large quantities, Luna could enter a vicious cycle of hyperinflation that would collapse its own price and UST with it." The complaint added other evidence in a bid to prove that TFL and its executives were responsible for the collapse of the Terra project. Terra's Legal Woes Spike The recent development adds to the lengthy list of TFL's legal woes. Recall that Kwon and TFL have been slammed with a series of class actions across various parts of the world. As reported by The Crypto Basic, U.S. law firm Bragar Eagel & Squire, P.C., filed a lawsuit against TFL in California federal court, accusing the company of misleading investors and selling unregistered securities. After that, Popular securities and consumer rights litigation firm Scott+Scott Attorneys filed a lawsuit against Do Kwon and TerraForm Labs. TFL is currently being investigated by the United States Securities and Exchange Commission (SEC) to determine whether the firm violated U.S. laws via its crypto offering. South Korean regulators are also considering charging Kwon and TFL for operating Anchor as a Ponzi scheme.[GN] TG THERAPEUTICS: Bids for Lead Plaintiff Appointment Due Sept. 16 ----------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of TG Therapeutics, Inc. (NASDAQ: TGTX) between January 15, 2020 and May 31, 2022, both dates inclusive (the "Class Period"), of the important September 16, 2022 lead plaintiff deadline. SO WHAT: If you purchased TG Therapeutics securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the TG Therapeutics class action, go to https://rosenlegal.com/submit-form/?case_id=7662 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than September 16, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Many of these firms do not actually handle securities class actions, but are merely middlemen that refer clients or partner with law firms that actually litigate the cases. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose that: (1) clinical trials revealed significant concerns related to the benefit-risk ratio and overall survival data of Ublituximab (an investigational glycoengineered monoclonal antibody for the treatment of B-cell non-hodgkin lymphoma, chronic lymphocytic leukemia ("CLL"), and relapsing forms of multiple sclerosis) and Umbralisib (or UKONIQ, an oral inhibitor of PI3K-delta and CK1-epsilon for the treatment of CLL, marginal zone lymphoma, and follicular lymphoma); (2) accordingly, it was unlikely that TG Therapeutics would be able to obtain U.S. Food and Drug Administration ("FDA") approval of the marginal zone lymphoma ("MZL") and follicular lymphoma ("FL") (the "Umbralisib MZL/FL NDA"), the rolling submission of a Biologics License Application ("BLA") to the FDA for Ublituximab in combination with Umbralisib (together, "U2"), as a treatment for patients with CLL (the "U2 BLA"), the supplemental New Drug Application ("sNDA") for Umbralisib to add an indication for CLL and small lymphocytic lymphoma ("SLL") in combination with Ublituximab (the "U2 sNDA"), or the Ublituximab as a treatment for patients with relapsing forms of multiple sclerosis ("RMS") (the "Ublituximab RMS BLA") in their current forms; (3) as a result, TG Therapeutics had significantly overstated Ublituximab and Umbralisib's clinical and/or commercial prospects; and (4) therefore, the Company's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the TG Therapeutics class action, go to https://rosenlegal.com/submit-form/?case_id=7662 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. [GN] TREMONT CAR: Court Grants Bid for Summary Judgment in Morales Suit ------------------------------------------------------------------ In the case, JORGE MORALES, TORIBIO DE LA CRUZ MEJIA, FREDDY GOMEZ CASTRO, CHRISTIAN LUGO VIERA, MARCOS GONZALEZ MARTINEZ, JORGE ALBERTO LINARES FIGUEROA, ROLANDO GARCIA, and RAMON ANTONIO CONSTANZA ESTEVEZ, individually and on behalf of all other similarly situated, Plaintiffs v. TREMONT CAR WASH AND LUBE LLC, K & P CW INC., and JOHN LAGE, MICHAEL LAGE, BYOUNGHOON PARK a/k/a EDDIE PARK, and JI HYUN KIM a/k/a ANDREW H. KIM, as individuals, Defendants, Case No. 20 Civ. 01760 (GBD) (JLC) (S.D.N.Y.), Judge George B. Daniels of the U.S. District Court for the Southern District of New York grants the Tremont Defendants' motion for summary judgment and the K&P Defendants' motion to dismiss. The Plaintiffs bring the class action lawsuit against the Defendants. They assert nine claims alleging that the Defendants failed to pay Plaintiffs adequate wages, overtime pay, and spread of hours in violation of the Fair Labor Standards Act ("FLSA") and New York Labor Laws and regulations ("NYLLs"). The Tremont Defendants move for summary judgment dismissing all nine claims pursuant to Federal Rule of Civil Procedure ("FRCP") 56. The K&P Defendants move to dismiss the complaint pursuant to Rule 12(b)(5) for insufficient service. The K&P Defendants operated a car wash as far back as 2011. The Tremont Defendants bought the car wash from the K&P Defendants in May 2017 and are the current owners. The Plaintiffs are all previous or current employees of the car wash starting in 2011. They brought the class action on Feb. 27, 2020 with eight named Plaintiffs alleging that the Defendants violated the FLSA and NYLLs. They alleged that from February 2014 to 2020, the Defendants failed to pay them the applicable minimum wage, wages for actual hours worked, and overtime, as well as comply with other NYLLs requirements. The Tremont Defendants made an appearance and answered the complaint on May 14, 2020. On June 23, 2021, the Plaintiffs filed the FAC. Discovery closed on Sept. 17, 2021. The Tremont Defendants then moved for summary judgment to dismiss all claims against them. In support of their motion, the Defendants filed as exhibits payroll records, including wage statements issued to the Plaintiffs, and signed time sheets maintained by the employer for the period of May 2017 to present. The Plaintiffs opposed the motion with accompanying affidavits from three of the eight named Plaintiffs. The K&P Defendants appeared in the action to file a motion to dismiss for insufficient service. The Plaintiffs opposed the motion with accompanying affidavits of service. Judge Daniels finds that the Tremont Defendants have demonstrated that no reasonable jury could return a verdict in favor of the Plaintiffs on their FLSA claims. The FAC alleges that the Defendants failed to properly pay the Plaintiffs a minimum wage, wages for all hours worked, and overtime wages in violation of the FLSA (Counts 1, 3, and 5) from 2014 to the present. The Tremont Defendants have put forward payroll records, signed time sheets, and employee handbooks rebutting any claims that they have failed to comply with FLSA. This evidence supports, and the Plaintiffs fail to satisfactorily rebut, that the Defendants have in fact complied with the relevant federal requirements. As to whether the Defendants paid the Plaintiffs the adequate minimum wage, Judge Daniels finds that the payroll records clearly demonstrate that the Tremont Defendants paid the Plaintiffs an hourly wage of $9.35/hour starting in June 2017. The Plaintiffs do not dispute that the Tremont Defendants issued these wage statements to them when they were paid. None of their three affidavits out of eight named plaintiffs challenge the hourly rate of pay provided in these wage statements. Therefore, the Defendants paid the adequate federal minimum wage from June 2017 to present. As for the period preceding June 2017, the facts in the complaint only support a claim that the Defendants paid below the federal minimum wage, 6.50/hour to $6.95/hour, from February 2014 to December 2016. However, affidavits from the Plaintiffs who were employed at the car wash during the relevant period state that they received tips from the Defendants during the course of their employment. The complaint does not allege that the Defendants failed to comply with federal requirements for taking a tip credit. Therefore, the evidence supports finding that the Defendants paid the Plaintiffs an adequate federal minimum wage during the relevant time period. Judge Daniels also finds that the Plaintiffs' claims that the Defendants did not pay them regular wages for all hours worked or overtime wages can summarily be dismissed together. As stated, the Tremont Defendants present payroll records and signed time sheets in support of their motion. These signed records together provide evidence of the wages and overtime wages due to each Plaintiff and the amount of wages the Tremont Defendants actually paid. Thus, the Plaintiffs' federal claims in counts one and three for unpaid wages and overtime pursuant to FLSA are dismissed. No claims remain in the action. For the reasons he stated, Judge Daniels grants the Tremont Defendants' summary judgment motion and the K&P Defendants' motion to dismiss. The FAC is dismissed in its entirety without prejudice. The Clerk of Court is directed to close the motions (ECF Nos. 44, 63, and 64), accordingly. A full-text copy of the Court's Aug. 17, 2022 Memorandum Decision & Order is available at https://tinyurl.com/4vmxzc6f from Leagle.com. ULTRAGREEN LLC: Austin Files TCPA Suit in E.D. Arkansas ------------------------------------------------------- A class action lawsuit has been filed against Ultragreen LLC. The case is styled as Robert Austin, individually and on behalf of others similarly situated v. Ultragreen LLC, Case No. 4:22-cv-00757-KGB (E.D. Ark., Aug. 25, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Ultragreen -- https://www.myultragreen.com/ -- offer a tailored solution for lawn care needs.[BN] The Plaintiff is represented by: Anthony I. Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln St., Suite 2400 Hingham, MA 02043 Phone: (615) 485-0018 Email: anthony@paronichlaw.com - and - Jason Michael Ryburn, Esq. RYBURN LAW FIRM 650 South Shackleford Road, Suite 231 Little Rock, AR 72211 Phone: (501) 228-8100 Email: jason@ryburnlawfirm.com USA QR CULTURE: Faces Zeng Suit Over Unpaid Restaurant Servers' OT ------------------------------------------------------------------ YANG ZENG, individually and on behalf of all other employees similarly situated, Plaintiff v. USA QR CULTURE INDSUTRIAL DEVELOPMENT LLC d/b/a Hutaoli Music Restaurant & Bar a/k/a Hutoali, WEI YOU a/k/a Mr. You, QUN CE LI a/k/a Jimmy Li, JOHN "DOE" (real name unknown) a/k/a Qun Ce Li's Partner, and SHUAI ZHANG, Defendants, Case No. 1:22-cv-07132 (S.D.N.Y., August 21, 2022) brings this complaint as a collective action against the Defendants for their alleged various and unlawful employment policies, patterns, and/or practices that violated the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants as a restaurant server at their restaurant Hutaoli from January 7, 2021 until approximately December 11, 2021. The Plaintiff claims that her work shift as a restaurant server lasted for approximately 11 hours per each work-day for 5 to 7 days per week on average. While working at the Defendants' restaurant, the Defendants did not provide her any uninterrupted break. Although she occasionally allowed to have a 30-minute lunch break, her break was always interrupted. In addition, on the days that the restaurant's customers stayed after its closing time, she was required to wait until all of the customers finished eating and had to clean the tables after they left the restaurant. The Plaintiff also claims that the Defendants regularly, customarily, and willfully reduced the employees' working hours despite that the Plaintiff typed the correct number of hours that the employees recorded. As a result, despite regularly working more than 40 hours per week, the Defendants failed to properly pay the Plaintiff appropriate overtime compensation at the applicable overtime rate. The Defendants also failed to pay the Plaintiff at least minimum wage for each hour that she worked specifically for the periods in March 2021 and December 2021 as required by NYLL, as well as an additional hour's pay at the basic minimum wage rate before allowance for each day the Plaintiff's spread of hours exceeded 10 hours. Moreover, the Defendants failed to provide the Plaintiff with an accurate wage statement, and any notice of her rate of pay, employer's regular pay day, and such other information. USA QR Culture Industrial Development LLC d/b/a Hutaoli Music Restaurant & Bar a/k/a Hutaoli operates as a Chinese restaurant. Defendant Mr. You is the founder and CEO of the Corporate Defendant. Defendant Jimmy Li is the vice general manager of the Corporate Defendant. Defendant Shuai Zhang is the Corporate Defendant's accountant. [BN] The Plaintiff is represented by: Diana Seo, Esq. SEO LAW GROUP, PLLC 136-68 Roosevelt Ave., Suite 726 Flushing, NY 11354 Tel: (718) 500-3340 E-mail: diana@seolawgroup.com VERMONT BREAD: Court Certifies Class of Employees in Chaney Suit ---------------------------------------------------------------- In the case, Matthew Chaney, Nadine Miller and Arthur Gustafson, on behalf of themselves and all others similarly situated, Plaintiffs v. Vermont Bread Company, Superior Bakery, Inc., Koffee Kup Bakery, Inc., Koffee Kup Distribution LLC, KK Bakery Investment Company LLC, KK Bakery Holding Acquisition Company, and American Industrial Acquisition Corporation, Defendants, and Linda Joy Sullivan, in her capacity as the Dissolution Receiver for Koffee Kup Bakery, Inc., Vermont Bread Company and Superior Bakery, Inc., Intervenor-Defendant-Crossclaimant, v. KK Bakery Investment Company, LLC, KK Bakery Holding Acquisition Company, and American Industrial Acquisition Corporation, Crossclaim Defendants, Case No. 2:21-cv-120 (D. Vt.), Judge William K. Sessions, III, of the U.S. District Court for the District of Vermont grants the Plaintiffs' motion for class certification, appointment of class representatives, approval of class counsel, and for approval of the form and manner of class notice. The Plaintiffs bring the action on behalf of themselves and a putative class alleging violations of the Worker Adjustment and Retraining Notification Act of 1988 ("WARN Act"), 29 U.S.C. Sections 2101-2109, et seq. On April 26, 2021, Vermont Bread, Superior Bakery, Inc., and Koffee Kup Bakery, Inc. ceased operations. As a result, over 400 people lost their jobs. The WARN Act requires that before executing a plant closing or mass layoff, a covered employer must provide 60 days' written notice to employees. The Plaintiffs allege that the Defendants failed to provide the required notice. Accordingly, the First Amended Complaint seeks wages and benefits for a maximum of 60 days on behalf of Plaintiffs, as well as a putative class of other similarly situated employees. The WARN Act's notice requirement applies to employers with 100 or more employees. The Defendants were separate corporations with plants in three different locations, two in Vermont and one in Connecticut. At least half of the 400 laid-off employees worked in the Vermont facilities. The Plaintiffs contend that despite the separate corporate entities and plant locations, the Defendants qualified as a "single employer" for purposes of the WARN Act. The Defendants dispute the "single employer" characterization, and submit that Superior Bakery and Vermont Bread Company each employed fewer than 100 full-time employees. The question of whether the Defendants constituted a "single employer" invites an inquiry into their corporate relationships. The First Amended Complaint alleges that Koffee Kup Bakery purchased Superior Bakery in 2010. In 2013, Koffee Kup Bakery purchased Vermont Bread. It is undisputed that at the time of the alleged WARN Act violations, those entities were wholly-owned subsidiaries of Kup Co. The Plaintiffs claim that in the weeks prior to April 1, 2021, in anticipation of purchasing 80% of the stock of Vermont Bread, Superior Bakery, Koffee Kup Bakery and Koffee Kup Distribution, LLC, Defendant American Industrial Acquisition Corp. AIAC ("AIAC") formed Koffee Kup Bakery Investment Co. and Koffee Kup Bakery Holding Acquisition Co. to hold its stock interests. After the stock purchase on April 1, 2021, the purchasing Defendants allegedly joined or succeeded the purchased entities as the Plaintiffs' "single employer." The Plaintiffs filed their Class Action Complaint on April 29, 2021, and their First Amended Class Action Complaint on June 15, 2021. On March 17, 2022, Linda Joy Sullivan moved to intervene as the Dissolution Receiver for Koffee Kup Bakery, Vermont Bread, and Superior Bakery. The Court granted her unopposed motion on March 30, 2022. Now before the Court is the Plaintiffs' motion regarding class certification and related issues. First, the Defendants argue that the Court should not consider the question of class certification without first determining whether they may be held liable under the WARN Act. Specifically, they submit that as separate corporate entities with separate plant locations, they may not be grouped together as a single employer. If they do not qualify as a single employer, entities such as Superior Bakery and Vermont Bread may not be liable under the WARN Act since they reportedly employed fewer than 100 employees. The Defendants also argue that they were not all involved in the decision to end the Plaintiffs' employment, and thus may not be held jointly liable for the alleged failure to provide WARN Act notice. The Plaintiffs argue that the single employer issue is a liability question to be determined after class certification. They also contest some of the Defendants' factual assertions, including claims about the number of people employed by each entity. There is no dispute that resolving the single employer question will require discovery. Judge Sessions opines that while the Defendants urge the Court to delay class certification, such a delay could give rise to due process concerns. Assuming a class is ultimately certified, members of the class are entitled to notice in the early stages of the proceeding. Early notice offers potential class members the opportunity to assess the claims, determine whether they wish to be a part of the litigation, and acknowledge that their rights may be affected. Before an absent class member may be forever barred from pursuing an individual damage claim due process requires that he receive some form of notice that the class action is pending and that his damages claims may be adjudicated as part of it." Consequently, courts generally favor early notice. For each of these reasons, Judge Sessions proceeds to a review of the proposed class under Rule 23. Rule 23(a) requires the Court to first consider four requirements: numerosity, commonality, typicality, and adequacy of representation. Moreover, under Rule 23(b)(3), a class may be certified if the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Judge Sessions opines that (i) the proposed class is comprised of hundreds of laid-off workers; (ii) the entire class will claim that the Defendants failed to provide WARN Act notice and this single employer question is a commonality that favors class certification; (iii) the interests of the Plaintiffs are largely co-extensive, focusing on the single employer question, the layoff decision, and WARN Act compliance; and (iv) the case seeks a relatively uniform remedy for a single group of workers, each of whom was terminated at the same time. Judge Sessions further opines that the predominance requirement is easily met as the question of WARN Act violations predominates. A class action is also superior to hundreds of individual claims, particularly given the relatively small value of individual WARN Act claims as compared to the aggregate relief sought by the putative class. The efficiencies of a class action as weighed against any individual interests in controlling separate lawsuits; acknowledges the desirability of concentrating the claims in a single forum; and finds that management of a class action is preferable to the management of hundreds of individual actions. Accordingly, the Plaintiffs have satisfied the superiority requirement. Because each of the named Plaintiffs will fairly and adequately represent members of the class, Judge Sessions appoints them as the class representatives. The Plaintiffs next ask the Court to approve their proposed notice to the class. Judge Sessions holds that the notice proposed by Plaintiffs satisfies the requirements of Federal Rule of Civil Procedure 23(c)(2)(B). He also finds that notice by mail, with at least 35 days from the date of mailing to opt out of the class, is sufficient. On a final note, he finds that early class notice will not prejudice the Defendants, and that a delay would heighten the chances of inefficiency and constitutional harm. Accordingly, notice to the class will not be delayed. For the reasons he set forth, Judge Sessions grants the Plaintiffs' motion for class certification, appointment of class representatives, approval of class counsel, and approval of the form and manner of class notice. A full-text copy of the Court's Aug. 17, 2022 Opinion & Order is available at https://tinyurl.com/mr33b4x7 from Leagle.com. WALGREENS BOOTS: Bell Suit Removed to E.D. Missouri --------------------------------------------------- The case styled as Joshua Bell, individually and on behalf of all others similarly situated v. Walgreens Boots Alliance, Inc., Walgreen Co., Case No. 2211-CC00665 was removed from the Circuit Court for St. Charles County, Missouri, to the U.S. District Court for the Eastern District of Missouri on Aug. 22, 2022. The District Court Clerk assigned Case No. 4:22-cv-00873-JMB to the proceeding. The nature of suit is stated as Contract Product Liability. Walgreens Boots Alliance, Inc. -- https://www.walgreensbootsalliance.com/ -- is an American-British-Swiss holding company headquartered in Deerfield, Illinois that owns the retail pharmacy chains Walgreens and Boots, as well as several pharmaceutical manufacturing and distribution companies.[BN] The Plaintiff is represented by: Daniel F. Harvath, Esq. HARVATH LAW GROUP LLC 75 W. Lockwood, Suite 1 St. Louis, MO 63119 Phone: (314) 550-3717 Email: dharvath@harvathlawgroup.com The Defendants are represented by: Rachel Carmen Groves, Esq. SHOOK HARDY LLP - Kansas City 2555 Grand Blvd., 19th Floor Kansas City, MO 64108 Phone: (816) 474-6550 Email: rcgroves@shb.com WARNACO SWIMWEAR: Dicks Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Warnaco Swimwear Products Inc. The case is styled as Valerie Dicks, on behalf of herself and all others similarly situated v. Warnaco Swimwear Products Inc. doing business as: Speedo USA, Case No. 1:22-cv-07145-JMF-GWG (S.D.N.Y., Aug. 22, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Warnaco Swimwear Products Inc. doing business as Speedo USA -- https://us.speedo.com/ -- is the world's leading swimwear brand offering swimsuits and apparel.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com WEST CREEK FINANCIAL: Towns Files Suit in Cal. Super. Ct. --------------------------------------------------------- A class action lawsuit has been filed against West Creek Financial, Inc., et al. The case is styled as Latesha Towns and on behalf of all others similarly situated v. West Creek Financial, Inc., Mattress and Furniture Express, Case No. 34-2022-00325659-CU-BT-GDS (Cal. Super. Ct., Sacramento Cty., Aug. 24, 2022). The case type is stated as "Business Tort." West Creek Financial, Inc., doing business as Koalafi -- https://koalafi.com/ -- offers a single financing platform with pay-over-time products and services for every type of customer.[BN] The Plaintiff is represented by: Raymond Yoon Ho Kim, Esq. HOLLAND & KNIGHT 400 S. Hope Street, 8th Floor Los Angeles, CA 90071 Phone: 213-896-2414 Fax: 213-896-2450 Email: raymond.kim@hklaw.com WEXFORD HEALTH: Bid to Extend Time to File Class Cert Terminated ---------------------------------------------------------------- In the class action lawsuit captioned as MILLIGAN v. WEXFORD HEALTH SOURCES, INC., Case No. 2:21-cv-01411 (W.D. Pa.), the Hon. Judge Robert J. Colville entered an order that the motion to extend time to file motion for class certification is terminated as moot. The suit alleges violation of the Fair Labor Standards Act. Wexford is a healthcare services company headquartered in Foster Plaza Two in Green Tree, Pennsylvania, near Pittsburgh.[CC] WHOLE FOODS: Faces Class Action Over Misleading Beef Products' Ads ------------------------------------------------------------------ lawstreetmedia.com reports that three individuals filed a putative consumer class action against Whole Foods, Inc. in the Central District of California. The fourth plaintiff, Farm Forward, describes itself as "a national public interest animal protection [tax exempt 501(C)3] organization" whose purpose "is to end factory farming." Plaintiffs allege that Whole Foods falsely advertises its beef products as being free of antibiotics. The three individual plaintiffs - Sara Safari, Peymon Khaghani and Jason Rose - state they are California citizens and seek to represent a class of US purchasers of "Beef Products" from the defendant beginning in 2017 and a "California Subclass" of those who purchased such products during the same period. The plaintiffs allege that Class Members would not have purchased Beef Products, or would not have paid a premium for such products, had they known that the defendant's marketing slogan, " No Antibiotics, Ever," and similar representations, which allegedly permeate Whole Foods stores, product packaging and advertising, was false as established by laboratory testing. Plaintiffs also allege that Whole Foods falsely represented that the livestock are "Animal Welfare Certified" because ". . . cattle raised with routine, subtherapeutic antibiotics are typically not raised with higher animal welfare standards." Plaintiffs link their primary antibiotic related allegations with the animal welfare allegations: "In short, a reasonable consumer upon seeing Whole Foods' 'Animal Welfare Certified' label -- particularly in combination with its 'No Antibiotics, Ever' advertising - is left with the false impression that the Beef Product was raised without antibiotics." The plaintiffs allege five causes of action: Violation of the [California] Consumers Remedy Act (on behalf of the California Subclass); Violation of the [California] Unfair Competition Law (on behalf of the California Subclass and Plaintiff Farm Forward); Violation of the [California] False Advertising Law (on behalf of the California Subclass and Plaintiff Farm Forward); Unjust Enrichment (on behalf of the Class); and Fraudulent Concealment (on behalf of the Class and Plaintiff Farm Forward). Consumer Plaintiffs seek "active damages or restitution, punitive damages, and pre- and post-judgment interest"; all Plaintiffs seek attorneys' fees and declaratory and injunctive relief, including "mandating that Whole Foods undertake a corrective campaign of notification at its expense." Plaintiffs are represented by three firms: Grime Law LLP; Girard Sharp LLP; and Elsner Law & Policy, LLC. [GN] WHOLE FOODS: Safari Sues Over False and Misleading Promotion ------------------------------------------------------------ Sara Safari, Peymon Khaghani, and Jason Rose, on behalf of themselves and all others similarly situated, and Farm Forward, on behalf of the general public v. WHOLE FOODS MARKET, INC., a Texas corporation, Case No. 8:22-cv-01562 (C.D. Cal., Aug. 23, 2022), is brought concerning Whole Foods' material misrepresentations and omissions about the use of antibiotics in the beef it sells, claiming that it sells only antibiotic-free beef which is false, and is brought to stop Whole Foods' misleading promotion and sale of beef. Whole Foods markets its beef with the slogan, "No Antibiotics, Ever" and reinforces this promotional message that its beef is antibiotic free with other similar representations at retail stores, in online marketing, and on product packaging. But, as independent testing has shown, Whole Foods' claim that it sells only antibiotic-free beef is false. Administering routine or subtherapeutic antibiotics to farmed animals creates serious health risks. It contributes to the development of antibiotic-resistant bacteria in the animals—bacteria that consumers of the meat eventually ingest. Once in the human system, these bacteria can cause infections that cannot be treated with existing antibiotics because the bacteria is antibiotic-resistant. Consumers overpaid for and were economically harmed as a result of Whole Foods' misleading promotion of its Beef Products. Whole Foods charges--and consumers pay--a substantial price premium for Beef Products based on the claim that the cattle that become these Products were not given any antibiotics. For instance, Whole Foods charges $31.99 per pound for beef tenderloin steak filet mignon. A traditional retailer charges only $24.99 per pound for the same cut of beef. Thus, Whole Foods marks up the price of this Beef Product by 28% in connection with its antibiotic-free representations. Consumer Plaintiffs would not have purchased Beef Products, or would not have paid the prices they did, had they had known the truth that cattle used in the Products were raised with antibiotics, says the complaint. The Plaintiff has purchased Beef Products at Whole Foods on numerous occasions. Farm Forward is a nonprofit organization seeking to end factory Farming.[BN] The Plaintiff is represented by: Adam E. Polk, Esq. Jordan Elias, Esq. Simon Grille, Esq. Jordan Isern, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Phone: (415) 981-4800 Email: apolk@girardsharp.com jelias@girardsharp.com sgrille@girardsharp.com jisern@girardsharp.com - and - Paige M. Tomaselli, Esq. Dylan D. Grimes, Esq. GRIME LAW LLP 730 Arizona Avenue Santa Monica, CA 90401 Phone: (310) 747-5095 Email: ptomaselli@grimelaw.com dgrimes@grimelaw.com - and - Gretchen Elsner, Esq. ELSNER LAW & POLICY, LLC 314 South Guadalupe Street, Suite 123 Santa Fe, NM 87501 Phone: (505) 303-0980 Email: gretchen@elsnerlaw.org WM BOLTHOUSE: Bid to Dismiss Mayen Wage & Hour Suit Granted in Part ------------------------------------------------------------------- In the case, JULIO MAYEN, on his own behalf and on behalf of all others similarly situated, Plaintiff v. W.M. BOLTHOUSE FARMS, INC., et al., Defendants, Case No. 1:21-cv-00318-DAD-BAK (EPG) (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California grants in part and denies in part Bolthouse's motion to dismiss. Mr. Mayen originally filed a wage-and-hour class action complaint in Kern County Superior Court on Oct. 28, 2020, against Defendant MA Medina Farm Labor Services, Inc. and Does 1 through 100, alleging violations of California's Labor Code, California's Unfair Competition Law (UCL), and the Migrant and Seasonal Agricultural Worker Protection Act (AWPA). On Jan. 25, 2021, having discovered the true names of Does 1-4, the Plaintiff amended his complaint in state court to name Defendant Bolthouse as Doe 1, Defendant Bolt House Farms as Doe 2, Defendant Bolthouse Farms Cuyama Cuyama as Doe 3, and Defendant Bolthouse Farms Kern County as Doe 4. No other amendments were made to the Plaintiff's original complaint aside from the identification of Does 1-4. After being served with the Plaintiff's FAC, Defendant Bolthouse timely filed a notice of removal in this federal court pursuant to 28 U.S.C. Section 1331. In the Plaintiff's operative FAC, he alleges as that the "Defendants," which he uses to refer collectively to Defendant Medina and Does 1 through 100, "are farm labor contractors that are engaged in providing agricultural workers/employees who work on land located in Kern County, California that is owned by various companies." He alleges that they employed thousands of seasonal agricultural workers in its harvesting, field packaging and packaging business. Specifically, the "Plaintiffs entered into working arrangements with the Defendants," which were "formed and entered into each season" when the "Defendants hire each Plaintiff." Although he lumps all the Defendants together in his FAC, alleging that all the "Defendants were the employers of the Plaintiff and the Class," he also alleges, specifically, that Medina was his former employer and is the current and former employer of the putative class members. No other Defendant aside from Medina is mentioned by name in the allegations of the FAC. Instead, the Plaintiff merely alleges that all the Defendants are "the managerial agent, employee, predecessor, successor, joint-venturer, co-conspirator, alter ego and/or representative of one or more of the other Defendants" and "the agents, servants, and/or employees of each of the other Defendants," such that all defendants "are jointly and severally liable to the Plaintiff, and the Class." Finally, nowhere in the FAC does the Plaintiff allege when he worked for Medina or the other Defendants, or when the alleged misconduct took place. Approximately one month after the removal of the action to this federal court, on April 5, 2021, Bolthouse filed the pending motion to dismiss contending that: (i) eight of the nine causes of action asserted by plaintiff are barred by the applicable statute of limitations; (ii) there are insufficient facts alleged to state any cognizable claims against Bolthouse as a joint employer of plaintiff and that dismissal of all of the Plaintiff's nine claims is warranted; and (iii) the Court should stay or dismiss this action under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) because a nearly identical action brought by a different plaintiff is pending against the same five defendants in state court. Attached to Bolthouse's pending motion to dismiss is: (i) a declaration from its counsel with three exhibits, including a copy of the complaint in the alleged parallel state court action and (ii) a declaration of Iliana Lopez, a manager for Medina to which is attached one exhibit, a payroll earnings record for plaintiff maintained in Medina's ordinary course of business that is offered in support of defendant Bolthouse's statute of limitations argument for dismissal. On May 4, 2021, the Plaintiff filed an opposition to the pending motion responding to some, but not all, of Bolthouse's arguments. Bolthouse filed a reply thereto on May 11, 2021. Bolthouse first urges the Court to incorporate by reference one of the Plaintiff's earnings statement as the basis for its argument that his first through eighth claims are barred by the applicable statute of limitations. Judge Drozd finds that Bolthouse has not presented adequate grounds on which the Court could exercise its discretion to incorporate the Medina payroll record as part of the FAC, and therefore, he declines Bolthouse's request to incorporate that record into the FAC. As a result, Bolthouse's remaining arguments contending that the Plaintiff's first eight claims are barred under the applicable statute of limitations have necessarily been rendered moot because they all depended on the court concluding that the Medina payroll record represented the Plaintiff's last day of work with Bolthouse. Accordingly, Judge Drozd denies Bolthouse's motion to dismiss to the extent it is based on a statute of limitations defense. Bolthouse next contends that all of the Plaintiff's claims against it must fail because the FAC does not "plead a single fact showing an employment relationship with Bolthouse." It admits that Medina employed the Plaintiff. Whether the FAC sufficiently alleges that Bolthouse was a joint employer of the Plaintiff along with Medina implicates state law as to the Plaintiff's California Labor Code claims and federal law as to his AWPA claim. Judge Drozd holds that the Plaintiff has failed to state any cognizable claims against Bolthouse for violations of the California Labor Code or the AWPA because his FAC is lacking any factual allegations that defendant Bolthouse jointly employed the Plaintiff. Thus, Bolthouse's motion to dismiss is granted to the extent it is based on the Plaintiff's failure to adequately allege the existence of a joint employer relationship. Lastly, Bolthouse contends that the action should be dismissed or stayed pursuant to the Supreme Court's holding in in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). In the Ninth Circuit, eight factors are to be considered in determining the appropriateness of a dismissal or stay under Colorado River: (1) which court first assumed jurisdiction over any property at stake; (2) the inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law provides the rule of decision on the merits; (6) whether the state court proceedings can adequately protect the rights of the federal litigants; (7) the desire to avoid forum shopping; and (8) whether the state court proceedings will resolve all issues before the federal court. Bolthouse contends that plaintiff Rhina Beatriz Carrillo filed a class action complaint in the Kern County Superior Court on April 30, 2019, which is before Mayen filed the present action on Oct. 28, 2020, and that a stay of the present action is therefore warranted. The complaint in the Carrillo action, attached to the declaration of defendant Bolthouse's counsel filed in support of the pending motion, shows that it was brought against the same five defendants named in the present action and that nearly the same claims were asserted in both cases. However, the claims asserted in the two actions differ slightly, because a claim under federal law for violation of the AWPA was asserted in the present action but not in the Carrillo action. Notwithstanding this difference, Bolthouse argues that "the very same claims" pending in the Carrillo action are "now pending in the present case" because the Plaintiff's "time-barred AWPA claim should be dismissed," meaning "the Carrillo action would conclusively resolve all claims brought by the Plaintiff." Judge Drozd concludes that consideration of the Colorado River factors weighs against issuing a stay. Beginning with the eighth factor, which is dispositive, he concludes that there is substantial doubt as to whether the proceedings in state court in the Carrillo action will resolve all the issues presented in this federal action. Although all but one of the claims brought in the Carrillo action and the present action overlap, a federal claim under the AWPA has not been asserted in the Carrillo action, and this difference alone is fatal to Bolthouse's request for a Colorado River stay. The Carrillo action simply cannot resolve the Plaintiff's AWPA claim because the plaintiff in the Carrillo action did not assert that claim in the state forum. In addition, due to the paucity of factual allegations presented in the operative complaints in both actions and the lack of information before the Court regarding the status of class certification in Carrillo, Judge Drozd has no assurance that the Carrillo action encompasses the Plaintiff as a class member or that it covers the factual theories underpinning his claims. In short, it remains unclear whether resolution of the purportedly overlapping state law claims in the Carrillo action would completely resolve the present dispute between Mayen and the common Defendants. Because he has substantial doubt that the Carrillo action will resolve the entire case before this federal court, Judge Drozd holds that a stay under Colorado River is inappropriate and he need not address the other relevant factors. Accordingly, Bolthouse's motion to stay or dismiss the action under Colorado River is denied. Having determined that all of the Plaintiff's claims against defendant Bolthouse should be dismissed based on his failure to adequately allege a joint employer relationship, Judge Drozd must determine whether the Plaintiff should be granted leave to file a second amended complaint to attempt to cure the noted pleading deficiency. He finds that at this early stage of the litigation, and given that the Plaintiff has not had an opportunity to address the pleading deficiencies now identified, leave to file an amended pleading is appropriate. Leave to amend is limited, however, to additional allegations of a joint employer relationship between the Plaintiff and Bolthouse. The Plaintiff should heed the Court's direction as to what the law requires to adequately allege a joint employer relationship and consider whether he is able to do so in good faith before filing a second amended complaint. For these reasons, Judge Drozd denies in part and grants in part Bolthouse's motion to dismiss as follows: a. He grants Bolthouse's motion to dismiss the Plaintiff's first through eighth claims due to his failure to adequately allege a joint employer relationship; b. He grants Bolthouse's motion to dismiss the Plaintiff's ninth claim to the extent it is derivative of his insufficiently alleged first through eighth claims; c. He grants Bolthouse's motion to dismiss the Plaintiff's prayer for injunctive relief and request for declaratory relief without leave to amend; and d. The Plaintiff is granted leave to file a second amended complaint to address the deficiencies identified with respect to the existence of a joint employer relationship as to Bolthouse; e. Bolthouse's motion to dismiss or stay the action is otherwise denied. Judge Drozd dismisses Defendants Bolt House Farms, Bolthouse Farms Cuyama, and Bolthouse Farms Kern County from the action pursuant to Federal Rule of Civil Procedure 4(m). The Clerk of the Court is directed to update the docket to reflect that Defendants Bolt House Farms, Bolthouse Farms Cuyama, and Bolthouse Farms Kern County have been terminated from the action. Within 21 days of the date of the Order, the Plaintiff will file any second amended complaint or notify the Court of his intention to proceed on his first amended complaint only against Medina, the remaining Defendant. A full-text copy of the Court's Aug. 17, 2022 Order is available at https://tinyurl.com/mvp7338v from Leagle.com. YARD HOUSE: Terpogosyan Sues Over Unpaid Minimum, Overtime Wages ---------------------------------------------------------------- Sahak Terpogosyan, an individual, on behalf of himself and all others similarly situated v. YARD HOUSE USA, INC., a Delaware Corporation; DARDEN RESTAURANTS, INC., a Florida Corporation; GMRI, INC., a Florida Corporation; and DOES 1 through 50, inclusive, Case No. 22STCV27445 (Cal. Super. Ct., Aug. 23, 2022), is brought against the Defendant' failure to pay the Plaintiff at least minimum wage for, among other things, time spent working off the clock; failure to pay the Plaintiff and the Class Members overtime and/or double time wages, as required by California Labor Code and any applicable Wage Order due to, among other things. The Defendant had and have statutory obligations to pay the Plaintiff and all Class Members at a rate of no less than minimum wage for all hours worked, and a rate of one-and-a-half times the regular rate of pay for all hours worked in excess of 8 in a workday, 40 in a workweek, and/or for the first 8 hours on the seventh day of work in any one workweek. the Plaintiff further alleges that the Defendant had and have statutory obligations to pay the Plaintiff and all other similarly situated Class Members at the rate of twice the regular rate of pay for all hours worked in excess of 12 hours in a workday and for any work in excess of 8 hours on the seventh day of a workweek, says the complaint. The Plaintiff is a former nonexempt employee of the Defendant who was employed as an hourly employee. The Defendant is engaged in the restaurant business within the State of California.[BN] The Plaintiff is represented by: S. Brett Sutton, Esq. Jared Hague, Esq. Brady Briggs, Esq. SUTTON HAGUE LAW CORPORATION, P.C. 5200 N. Palm Avenue, Suite 203 Fresno, CA 93704 Phone: (559) 325-0500 ********* 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. 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