/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220920.mbx C L A S S A C T I O N R E P O R T E R Tuesday, September 20, 2022, Vol. 24, No. 182 Headlines ABALON EXTERMINATING: Mota Sues to Recover Unpaid Wages ABBOTT LABORATORIES: RM Law Files Suit Over Securities Violations ACTIVE INTEREST: Murphy Sues Over Disclosed Private Reading Info AFLAC INCORPORATED: Valenzuela Suit Removed to C.D. California AIG DIRECT: Valenzuela Files Suit in C.D. California ALFON PROTECTION: Hernandez Sues Over Unpaid Minimum, OT Wages ARGYLE VOLUNTEER: Ring Files Bid for Class Certification ASSERTIO HOLDINGS: Settles Huang Shareholder Suit in CA Court ATERIAN INC: Settlement of Consumer Suit for Court Approval AUSSIE HOMES: Faces Class Action Over Unlawful Insurance Policies BAR 9 ENTERTAINMENT: Cruz Files ADA Suit in S.D. New York BENGALS & BANDITS: Dicks Files ADA Suit in S.D. New York BERRY'S RELIABLE: Appeals Partial Summary Judgment in Badon Suit BIG CITY: Harlem Tenants Can Proceed With Rent Fraud Class Action BUCCANEERS LTD: Bid to Seal Docs & Testimony in Cin-Q Suit Granted CANE BAY: District of Maryland Dismisses Manago Consumer Suit CASELLA WASTE: Rodney, et al., Seek to Conditionally Certify Class CHUNG SOL GARDEN: Underpays Servers, Shin Suit Alleges CIGNA CORP: Medical Societies Join Physicians' Wage Class Action CIGNA HEALTH: N.D. California Narrows Claims in RJ ERISA Class Suit CLOVER HEALTH: Loses Bid to Dismiss Bond Securities Suit CLOVER HEALTH: Loses Bid to Junk Kaul Suit CLOVER HEALTH: Loses Bid to Toss Tremblay Class Suit CLOWERS ENTERPRISES: Monroe Sues Over Failure to Pay OT Wages COCA-COLA CO: Mislabels Dragon Fruit Flavored Soda, Smith Claims COFFEE & GREEN: Bonilla Suit Claims Restaurant Staff's Unpaid Wages COLONIAL LIFE: Alvitre Labor Suit Removed to C.D. California COLOURPOP COSMETICS: Faces Class Action Over Unsafe Eye Makeup COMPASS HEALTH: Underpays Nurse Practitioners, Barber Suit Claims CSI FINANCIAL: Agrees to Settle Data Breach Class Suit for $2.65M DESKTOP METAL: Faces Guzman-Martinez Shareholder Suit in MA Court DESKTOP METAL: Faces Hathaway Suit in Massachusetts Court DESKTOP METAL: Faces Luongo Suit in Massachusetts Court DESKTOP METAL: Faces Xie Shareholder Suit in Massachusetts DOW AGROSCIENCES: Duzman et al. Sue Over Operators' Unpaid Wages ELON MUSK: Bernstein Litowitz Named Lead Counsel in Rasella Suit ENVIRONMENTAL AND SAFETY: Faces Bazilio Suit Over Unpaid Overtime EQT CORP: Appeals Class Cert. Ruling in Securities Suit to 3rd Cir. EQUIFAX INC: Rogers Fair Credit Suit Seeks to Appoint Counsel EVERYONE'S MD: Faces Greenberg Suit Over Illegal Sales Calls EXECUPHARM INC: Third Circuit Vacates Dismissal of Clemens Suit EZCORP INC: Lopez Sues Over Pawnbrokers' Unpaid Overtime Wages FAY DA: Angon Seeks Unpaid Overtime Wages for Bakery Employees FCA US: Court Grants Bid to Dismiss Diaz Suit Without Prejudice FLORIDA: Federal Judge Denies Certification in Prison Class Suit FLUKE CORP: Fails to Pay Proper Overtime Wages, Bond Suit Says FORCE PRESSURE: Cale Sues Over Failure to Pay Proper OT Wages FORD MOTOR: Faces Beck Suit Over Vehicles' Weak Roof Structure FORD MOTOR: Simmons Loses Bid for Reconsideration of March 21 Order FUTURE MOTION: Sued Over Defective Electronic Skateboards GEICO CASUALTY: Continuance to Hold in Abeyance Any Orders Sought GEICO CHOICE: Jones Appeals Insurance Suit Dismissal to 3rd Cir. GEICO CHOICE: Purcell Appeals Insurance Suit Dismissal to 3rd Cir. GENERAL MOTORS: Bid to Stay Response Brief Granted in Counts Suit GENERAL MOTORS: Napoli-Bosse Appeals Summary Judgment Ruling GOOGLE LLC: $100M Deal in Privacy Class Action Wins Final OK GRAYSON COUNTY, KY: Thomas Files Bid for Class Certification HCA HEALTHCARE: Motion to Dismiss Filed in Monopoly Class Action INOVIO PHARMACEUTICALS: Settlement in McDermid Gets Initial OK INSTAGRAM LLC: Adult Entertainers Sue Over Unfair Business Scheme INTERNATIONAL BROTHERHOOD: Byebee Appeals ERISA Suit Dismissal JUUL LABS: City of Marietta Sues Over Deceptive E-Cigarette Ads JUUL LABS: Entices Youth to Buy E-Cigarette, Clayton Cty. Claims JUUL LABS: Triggers Youth E-Cigarette Crisis, Alachua Suit Claims KELLOGG SALES: Faces Moore Suit Over Crackers' Deceptive Labels KIM KARDASHIAN: Hit With $40M Class Action Over Fake Lottery KONINKLIJKE PHILIPS: Rubenstein Consumer Suit Removed to S.D.N.Y. KROGER CO: Agee Sues Over Misleading Lidocaine Patch Labels LYNEER STAFFING: Faces Abuhassouna Wage-and-Hour Suit in Cal. MARISCOS LOS PRIMOS: Romero Sues Over Unlawful Labor Practices MCMENAMINS INC: Court Denies Bid to Dismiss Amended Leonard Suit MDL 2985: Bids to Dismiss Casino-Style Games Suit Granted in Part MICHIGAN: Court Dismisses O'Connor v. Eubanks, Stanton and State MOBIS ALABAMA: Parties Seek Extension to File Class Cert Bid MRS BPO LLC: Pollack Sues Over Misleading Collection Letters MULTI-COLOR CORP: Nagal Labor Suit Removed to N.D. California MY PILLOW: Extension of Class Certification Deadline Sought NASHVILLE, TN: $1M Settlement in TCPA Class Action Gets Approval NAVIENT SOLUTIONS: Court Denies Bid to Stay TRO in Homaidan Suit NEW YORK: Marciano Files Bid for Writ of Injunction w/ Supreme Ct. NICKO'S PIZZA: Sullivan Sues Over Unpaid Wages, Unreimbursed Costs NORTH CENTRAL: $705K Class Settlement in Compton Suit Has Final OK OURISMAN CHEVROLET: Barmby Sues Over Failure to Pay Commissions PHARMACA INTEGRATIVE: Court Sets Case Deadlines in Guerra Suit PROCTER & GAMBLE: Tampons Contain Titanium Dioxide, Fountain Says PROGRESSIVE UNIVERSAL: Scheduling Order Entered in Jones Suit PRUDENTIAL SECURITY: Cowley Appeals FLSA Suit Dismissal to 6th Cir. ROMEO POWER: Court Narrows Claims in Nichols Suit ROMEO POWER: Court Narrows Claims in Toner Suit SAMSUNG ELECTRONICS: Zortea MMWA Suit Goes to W.D. Pennsylvania SANOFI-AVENTIS US: Court Grants Joint Bid to Dismiss Mosaic Suit SEMA4 HOLDINGS: Bronstein Reminds of Nov. 7 Lead Plaintiff Due SHAUM'S CASABLANCA: Jones, et al., Seek FLSA Conditional Status SIG SAUER: N.H. Judge Rejects Lawsuit Over Pistols' Design Defect SOUTHCOAST HEALTH: Souza Civil Rights Suit Goes to D. Massachusetts SOUTHERN COMPANY: Drummond Balks at Denied ERISA-Protected Benefits SPICE & TEA EXCHANGE: Velazquez Files ADA Suit in S.D. New York SPIRIT AIRLINES: Improperly Denies FMLA Leave, Flannery Claims STATE FARM: Scheduling Order Entered in Fleming Class Suit STATE FARM: Sisia Appeals Insurance Suit Dismissal to 11th Circuit STRATA EQUITY: Zito Appeals Suit Dismissal to 4th Circuit SUN PHARMACEUTICAL: Loses Bid to Dismiss Antitrust Class Action TASMANIA: Faces Class Suit Over Mismanaged Youth Detention Centre TEAM HEALTH: $15M Class Settlement in Forward Suit Wins Final Nod TESLA INC: Faces Class Action Over Misleading Self-Driving Features TPG BOCA RATON: Betancourt Says Hotel Inaccessible to Amputees TURQUOISE HILL: Bid to Dismiss 2nd Amended Securities Suit Granted TWITTER INC: Portnoy Law Firm Discloses Securities Class Action UNIFIN INC: Meisels Files Suit Over Misleading Collection Letter UNITED STATES: Vaccine Case Will Remain Class-Action, Court Rules UNIVERSAL CITY: Amended Mellon Suit Dismissed With Leave to Amend VALENTINO USA: Joint Request for Briefing Sched Filed in Benitez VERVENT INC: Second Amended Scheduling Order Entered in Aliff VITAL RECOVERY: Faces Klein Suit Over Deceptive Collection Letter VOPAK TERMINAL: Morris Wage-and-Hour Suit Goes to C.D. California WAL-MART STORES: Zanetich Labor Suit Removed to D. New Jersey WALLACE ENTERPRISES: Basilio Suit Alleges Unpaid Wages and Tips WELLPET LLC: Brown Files Bid for Class Certification WESTMINSTER-CANTERBURY: Wheaton Sues Over Nurses' Unpaid Wages WILCO LIFE: Parties Seek More Time to File Class Certification Bid XPO LAST: Muniz, et al., Seek to Certify Class of Delivery Drivers [*] Efficacy of Class Action Waivers in Australia Discussed ********* ABALON EXTERMINATING: Mota Sues to Recover Unpaid Wages ------------------------------------------------------- Kendall Mota, Travis Subaran, Natheniel Emilia, Hector Briganti and Michael Miranda, in their individual capacities and on behalf of others similarly situated v. ABALON EXTERMINATING COMPANY, INC., IRWIN NOVAL, an individual, and DOROTHY GOMEZ FROST, an individual, Case No. 1:22-cv-07602-MKV (S.D.N.Y., Sept. 7, 2022), is brought against the Defendants to recover unpaid or underpaid wages and other damages under the provisions of the Fair Labor Standards Act of 1938 and the New York Labor Law. The Defendants regularly failed to pay the Plaintiffs overtime premium pay despite working more than 40 hours a week; failed to pay them the correct prevailing wage rates despite working at several public New York City project sites such as Grand Central Station and various New York City public libraries; and frequently paid them late. Specifically, when the Plaintiffs worked above forty hours in a given workweek, the Defendants would divide their hours into separate paychecks so that their check never reflected their accurate hours, in an attempt to avoid paying overtime, says the complaint. The Plaintiffs all worked for the Defendants' exterminating company for varying lengths of time and in different capacities, ranging from seventeen months to around eight years. Abalon Exterminating Company, Inc. is a New York corporation doing business within New York County.[BN] The Plaintiffs are represented by: Penn A. Dodson (PD 2244) ANDERSONDODSON, P.C. 11 Broadway, Suite 615 New York, NY 10004 Direct: (212) 961-7639 Fax: (646) 998-8051 Email: penn@andersondodson.com ABBOTT LABORATORIES: RM Law Files Suit Over Securities Violations ----------------------------------------------------------------- RM LAW, P.C. announces that a class action lawsuit has been filed on behalf of all persons or entities that purchased Abbott Laboratories ("Abbott" or the "Company") ( NYSE: ABT) securities during the period from February 19, 2021 through June 8, 2022, inclusive (the "Class Period"). Abbott shareholders may, no later than October 31, 2022, move the Court for appointment as a lead plaintiff of the Class. If you purchased shares of Abbott and would like to learn more about these claims or if you wish to discuss these matters and have any questions concerning this announcement or your rights, contact Richard A. Maniskas, Esquire toll-free at (844) 291-9299 or to sign up online, click here. The lawsuit alleges that defendants put profitability ahead of children's safety. During the Class Period, Abbott Laboratories engaged in a scheme to maximize revenues and inflate its stock price while disregarding and then concealing lapses in safety protocols that ultimately were linked to serious infant illnesses and even deaths. On February 17, 2022, the U.S. Food and Drug Administration ("FDA") announced that it was investigating four consumer complaints of infant illness related to powdered infant formula produced by Abbott Laboratories in Sturgis. The FDA stated that it had initiated an onsite inspection at the facility, and to date had found several positive contamination results from environmental samples for a bacteria, Cronobacter sakazakii ("Cronobacter"), linked to infant illnesses and death. On the same day, Abbott Laboratories issued a recall of certain infant formula products, including the popular brands Similac, Alimentum and EleCare, all manufactured in Sturgis. On this news, the price of Abbott Laboratories common stock declined by more than 3%. Then, on March 22, 2022, the FDA released reports from its three inspections of the Sturgis facility conducted in September 2019, September 2021, and, most recently, between January 31, 2022 and March 18, 2022. The FDA stated that these reports "do not constitute final FDA determinations" of specific violations, but highlighted that during its most recent inspection that (a) Abbott failed to establish process controls "designed to ensure that infant formula does not become adulterated due to the presence of microorganisms in the formula or in the processing environment" and (b) Abbott failed to "ensure that all surfaces that contacted infant formula were maintained to protect infant formula from being contaminated by any source." On this news, Abbott Laboratories' stock price fell by an additional 4%. On April 28, 2022, the FDA released a redacted copy of a whistleblower complaint sent to the FDA in October 2021, revealing that the issues disclosed in February and March 2022 were actually known to Abbott Laboratories' management far earlier. The whistleblower complaint identified numerous serious examples of misconduct by Abbott Laboratories management at Sturgis, including the falsification of testing records, the release of untested infant formula to the market, efforts to mislead the FDA during its 2019 inspection audit, the continuation of known deficient testing procedures, and an inability to trace products to properly implement recalls of affected pallets of formula. On this news, Abbott Laboratories' stock price fell nearly 4%. Finally, on June 8, 2022, investors learned that Abbott Laboratories was aware of the whistleblower's formal allegations in early 2021, when it was reported that the FDA whistleblower had filed a complaint in February 2021 with the U.S. Labor Department's Occupational Safety & Health Administration ("OSHA"), and that OSHA delivered that complaint to Abbott Laboratories and the FDA during the same month. On this news, Abbott Laboratories' stock price fell by an additional 3.5%, further damaging investors. If you are a member of the class, you may, no later than October 31, 2022, request that the Court appoint you as lead plaintiff of the class. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain RM LAW, P.C. or other counsel of your choice, to serve as your counsel in this action. For more information regarding this, please contact RM LAW, P.C. (Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by email at rm@maniskas.com or click here. For more information about class action cases in general or to learn more about RM LAW, P.C. please visit the website. RM LAW, P.C. is a national shareholder litigation firm. RM LAW, P.C. is devoted to protecting the interests of individual and institutional investors in shareholder actions in state and federal courts nationwide. [GN] ACTIVE INTEREST: Murphy Sues Over Disclosed Private Reading Info ---------------------------------------------------------------- ALEXUS MURPHY, MARKITTA WITCHER, and DIANE HAINES, on behalf of themselves and all others similarly situated, Plaintiffs v. ACTIVE INTEREST MEDIA, INC., Defendant, Case No. 2:22-cv-12159-DML-APP (E.D. Mich., September 12, 2022) is a class action against the Defendant for violation of Michigan's Preservation of Personal Privacy Act. The case arises from the Defendant's alleged practice of renting, exchanging, and/or otherwise disclosing Plaintiffs' AIM magazine subscriptions, including their Private Reading Information, to data aggregators, data appenders, data cooperatives, and list brokers during the relevant pre-July 31, 2016 time period. The Defendant did not obtain its customers' written consent prior to disclosing their Private Reading Information to third parties. As a result, the Plaintiffs and similarly situated customers have received a barrage of unwanted junk mail and are at risk of serious harm from scammers, says the suit. Active Interest Media, Inc. is a publishing company based in Boulder, Colorado. [BN] The Plaintiffs are represented by: E. Powell Miller, Esq. THE MILLER LAW FIRM, P.C. 950 W. University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841-2200 E-mail: epm@millerlawpc.com - and - Joseph I. Marchese, Esq. Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: jmarchese@bursor.com pfraietta@bursor.com - and - Frank S. Hedin, Esq. Arun G. Ravindran, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 1140 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 E-mail: fhedin@hedinhall.com aravindran@hedinhall.com AFLAC INCORPORATED: Valenzuela Suit Removed to C.D. California -------------------------------------------------------------- The case styled as Sonya Valenzuela, individually and on behalf of all others similarly situated v. Aflac Incorporated, Does 1 through 25, inclusive, Case No. 22STCV23742 was removed from the Los Angeles County Superior Court, to the U.S. District Court for Central District of California on Sept. 6, 2022. The District Court Clerk assigned Case No. 2:22-cv-06348-SPG-MRW to the proceeding. The nature of suit is stated as Other Contract. Aflac Inc. -- https://www.aflac.com/ -- is an American insurance company and is the largest provider of supplemental insurance in the United States.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. David W. Reid, Esq. Victoria C. Knowles, Esq. PACIFIC TRIAL ATTORNEYS APC 4100 Newport Place Drive Suite 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com dreid@pacifictrialattorneys.com vknowles@pacifictrialattorneys.com The Defendants are represented by: Ivette Zamora, Esq. Brandon P Reilly, Esq. MANATT PHELPS AND PHILLIPS LLP 695 Town Center Drive 14th Floor Costa Mesa, CA 92626 Phone: (714) 371-2535 Fax: (714) 371-2550 Email: izamora@manatt.com breilly@manatt.com - and - Brad W Seiling, Esq. MANATT PHELPS AND PHILLIPS LLP 2049 Century Park East Suite 1700 Los Angeles, CA 90067 Phone: (310) 312-4000 Fax: (310) 312-4224 Email: bseiling@manatt.com AIG DIRECT: Valenzuela Files Suit in C.D. California ---------------------------------------------------- A class action lawsuit has been filed against AIG Direct Insurance Services, Inc., et al. The case is styled as Sonya Valenzuela, individually and on behalf of all others similarly situated v. AIG Direct Insurance Services, Inc., Does 1 through 25, inclusive, Case No. 5:22-cv-01561-SSS-KK (C.D. Cal., Sept. 6, 2022). The nature of suit is stated as Other P.I. for Personal Injury. AIG Direct Insurance Services, Inc. -- https://www.aigdirect.com/ -- is a leading global insurance organization.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS APC 4100 Newport Place Drive Suite 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com ALFON PROTECTION: Hernandez Sues Over Unpaid Minimum, OT Wages -------------------------------------------------------------- FERNANDO HERNANDEZ, and other similarly situated individuals, Plaintiff v. ALFON PROTECTION GUARD SERVICES COMPANY and GUILLERMO ALFONSO, Defendants, Case No. 1:22-cv-22802-CMA (S.D. Fla., Sept. 2, 2022) is an action to recover money damages for unpaid minimum and overtime pay pursuant to the Fair Labor Standards Act. The Plaintiff was employed as a security guard by the Defendant from approximately February 10, 2020, through November 29, 2021, performing the same or similar duties as that of those other similarly situated whom Plaintiff observed working in excess of 40 hours per week without overtime compensation. The Corporate Defendant willfully and intentionally refused to pay Plaintiff overtime wages as required by the laws of the United States and remains owing Plaintiff these minimum and overtime wages since the commencement of Plaintiff's employment with the Corporate Defendant, says the suit. Alfon Protection Guard Services Company is a security guard service provider.[BN] The Plaintiff is represented by: Julisse Jimenez, Esq. R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com ARGYLE VOLUNTEER: Ring Files Bid for Class Certification -------------------------------------------------------- In the class action lawsuit captioned as HAROLD "TREY" RING, v. ARGYLE VOLUNTEER FIRE DEPARTMENT (AVFD), d/b/a ARGYLE FIRE DISTRICT, DENTON COUNTY EMERGENCY SERVICES DISTRICT #1, also d/b/a FIRE DISTRICT, AS THE SUCCESSOR OF THE ARGYLE VOLUNTEER FIRE DEPARTMENT, and TROY MAC HOHENBERGER, Case No. 4:21-CV-917-SDJ (E.D. Tex.), the Plaintiff asks the Court to enter an order certifying a class, defined as follows: "All persons who are current or former beneficiaries of the Argyle Fire District 401K Plan, a single employer, ERISA protected, defined contribution retirement plan." By his Second Amended Complaint, the Plaintiff has asserted, individually and on behalf of similarly situated individuals, a claim under Section 1132(a)(3) of ERISA for failure to pay 401K benefits as represented to employees under the AVFD 401K retirement benefits plan. Specifically, the Plaintiff contends that Defendants AVFD and Hohenberger breached their fiduciary duty to Plaintiff and the class by failing to make timely deposits into the 401K accounts of eligible employees. Plaintiff seeks injunctive relief to in the form of an accounting and monetary relief in the form of back pay for unpaid or late paid amounts and/or loss of investment worth due to failure to timely deposit amounts in accordance with the 401K plan. The discovery to this point has identified at least 46 persons by name who are beneficiaries of the plan. More specifically, there are at least 46 persons who as employees of AVFD received the employment benefit of participation in a 401K retirement plan that provided the benefit of tax-advantaged deductions from the employee’s salary (Voluntary Contributions) and the benefit of two for one matching payments for up to the employee's first 7% of salary withheld (Matching Contributions). The Court should grant class certification under Rule 23 of the Federal Rules of Civil Procedure, the Plaintiff contends. A copy of the Plaintiff's motion to certify class dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3L2tOIy at no extra charge.[CC] The Plaintiff is represented by: Eric N. Roberson, Esq. KILGORE & KILGORE PLLC 3141 Hood Street, Suite 500 Dallas, TX 75219 Telephone: (214) 969-9099 Facsimile: (214) 953-0133 E-mail: ENR@kilgorelaw.com ASSERTIO HOLDINGS: Settles Huang Shareholder Suit in CA Court ------------------------------------------------------------- Assertio Holdings, Inc. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that the settlement of the class action lawsuit captioned captioned "Huang v. Depomed et al.," No. 4:17-cv-4830-JST was approved by the court in July 2022. On August 23, 2017, the company, two individuals who formerly served as its chief executive officer and president, and its former chief financial officer were named as defendants in a purported federal securities law class action filed in the U.S. District Court for the Northern District of California (the District Court). The case captioned "Huang v. Depomed et al.," No. 4:17-cv-4830-JST, alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 relating to certain prior disclosures of the company about its business, compliance, and operational policies and practices concerning the sales and marketing of its opioid products and contends that the conduct supporting the alleged violations affected the value of company common stock and is seeking damages and other relief. In an amended complaint filed on February 6, 2018, the lead plaintiff (referred to in its pleadings as the Depomed Investor Group), which seeks to represent a class consisting of all purchasers of company common stock between July 29, 2015 and August 7, 2017, asserted the same claims arising out of the same and similar disclosures against the company and the same individuals as were involved in the original complaint. The company and the individuals filed a motion to dismiss the amended complaint on April 9, 2018. On March 18, 2019, the District Court granted the motion to dismiss without prejudice, and the plaintiffs filed a second amended complaint on May 2, 2019. The second amended complaint asserted the same claims arising out of the same and similar disclosures against the company and the same individuals as were involved in the original complaint. The company and the individuals filed a motion to dismiss the second amended complaint on June 17, 2019, and the District Court granted that motion with prejudice on March 11, 2020. On April 9, 2020, the plaintiffs filed a notice of appeal with the United States Court of Appeals for the Ninth Circuit. The parties completed their briefing of the appeal on December 14, 2020. On March 1, 2021, the court granted the parties' joint motion to stay the appeal pending settlement discussions. On July 30, 2021, the company reached an agreement to settle the matter subject to District Court approval. On August 13, 2021, the plaintiffs filed an unopposed motion for preliminary approval of the settlement with the District Court. The District Court issued an order preliminarily approving the settlement on March 21, 2022. On May 26, 2022, in full satisfaction of its payment obligations under the settlement agreement, the company funded an escrow account which will be released to the plaintiffs following the District Court's final approval of the settlement. On July 28, 2022, the District Court held the final settlement hearing and approved the settlement. Assertio Holdings, Inc. is a commercial pharmaceutical company based in Illinois ATERIAN INC: Settlement of Consumer Suit for Court Approval ----------------------------------------------------------- Aterian, Inc. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that the class settlement in a consumer suit is subject to court approval. In October 2021, the company received a class action notification and pre-lawsuit demand letter demanding corrective action with respect to the marketing, advertising, and labeling of certain products under the Mueller Austria brand. In April 2022, the parties reached an agreement in principle to resolve this potential action for $0.5 million in cash and $0.3 million worth of coupons, which the company accrued $0.8 million in the three months ended March 31, 2022, subject to negotiation of a formal memorandum of understanding, the execution of final settlement documents and court approval. Aterian, Inc. is a technology-enabled consumer products platform based in New York. AUSSIE HOMES: Faces Class Action Over Unlawful Insurance Policies ----------------------------------------------------------------- James Mitchell at mortgagebusiness.com.au reports that Aussie, ALI Group and the FBAA have responded to news that Shine Lawyers are investigating a class action against the major brokerage. On September 15, The Adviser reported that Shine Lawyers had launched a class action investigation on behalf of borrowers who were sold personal risk protection insurance by Aussie Home Loans. The personal risk protection insurance, which is also sold via many major broker groups, is provided by ALI Group. Responding to the class action claims, ALI CEO Huy Truong said the allegations about the worth of the policies are baseless. "Both Aussie and ALI Group are considering our options in relation to these allegations," he said. "To date, $147.8m have been paid to policy holders who have suffered from loss of employment, accidents, serious illness or worse. Many of these claimants have subsequently shares heartfelt gratitude to ALI and the mortgage broker who offered the policy. We expect to pay many more claims in the future as life events continue to impact our policy holders." An Aussie spokesperson said the group is aware of recent media reports regarding aspects of an ALI insurance product. "While our Aussie brokers assist thousands of customers to understand their home loan journey through an approved panel of lenders, we do not sell insurance ourselves," the brokerage said. "Aussie have not received any legal correspondence relating to these particular claims." Commenting on the class action investigation by Shine Lawyers, FBAA managing director Peter White said: "This looks to me like an early digging exercise. To me it reads like a call to action, rather than any firm case. Sometimes there are opportunistic businesses looking for a cause when there is no cause there at all. However, we will have to wait for the investigations to be completed." ALI Group told The Adviser that it has protected over 225,000 customers to date through its authorised mortgage brokers. During that time, only 42 policyholders (0.02 per cent) made a complaint to the Australian Financial Complaints Authority (AFCA). Of those 42 complaints, 40 were found in ALI's favour, the group said. "This data reinforces how much ALI cares about the quality of experience we provide to our broker partners and policy holders," CEO Mr Truong said. Independent research of ALI customers found that 98 per cent of customers felt it was reasonable for the broker to offer MPP to them within the context of a home loan. "I am very disappointed that such fundamentally inaccurate and unfounded allegations receive such media coverage as it causes unnecessary concern with consumers and our broker partners," Mr Truong said. [GN] BAR 9 ENTERTAINMENT: Cruz Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Bar 9 Entertainment, Corp. The case is styled as Miriam Cruz, on behalf of herself and all others similarly situated v. Bar 9 Entertainment, Corp., Case No. 1:22-cv-07611 (S.D.N.Y., Sept. 7, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bar Nine -- https://bar9ny.com/ -- is the best dueling piano bar in NYC.[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 BENGALS & BANDITS: Dicks Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Bengals & Bandits, LLC. The case is styled as Valerie Dicks, on behalf of herself and all others similarly situated v. Bengals & Bandits, LLC, Case No. 1:22-cv-07597 (S.D.N.Y., Sept. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bengals & Bandits -- https://www.bengalsandbandits.com/ -- is a boutique in Baton Rouge, Louisiana offering a unique selection of apparel for Bengals, bandits and of course the Lil' Bengals & bandits in training.[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 BERRY'S RELIABLE: Appeals Partial Summary Judgment in Badon Suit ---------------------------------------------------------------- BERRY'S RELIABLE RESOURCES, et al., are taking an appeal from a court ruling granting the Plaintiffs' motion for partial summary judgment in the lawsuit entitled Stacey Badon, et al., Plaintiffs, v. Berry's Reliable Resources, et al., Defendants, Case No. 2:19-CV-12317, in the U.S. District Court for the Eastern District of Louisiana. The Plaintiffs, individually and on behalf of all others similarly situated, brought this class action suit against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act (FLSA) and the Louisiana Wage Payment Act (LWPA). On April 26, 2022, the Plaintiffs filed a motion for partial summary judgment on the issue of whether Plaintiffs are properly classified as "independent contractors" or "employees." On June 10, 2022, the Court granted the Plaintiffs' motion for partial summary judgment through an Order entered by Judge Wendy B. Vitter. The Court held that evidence revealed that the Defendants controlled hiring and firing, supervised Plaintiffs' work with consumers and required Plaintiffs to comply with Berry's policies and attend trainings arranged by the Defendants. In addition, the Defendants handled the payroll and paid the Plaintiffs on an hourly basis. The evidence in the record clearly supported that the Defendants not only had the right to control the work of the Plaintiffs, but they actually did so. Accordingly, the Plaintiffs are deemed employees under the LWPA. The Court ruled that the Plaintiffs are properly classified as employees under the FLSA and LWPA. The appellate case is captioned as Badon v. Berry's Reliable Resources, Case No. 22-30547, in the United States Court of Appeals for the Fifth Circuit, filed on August 24, 2022. [BN] Plaintiffs-Appellees STACEY BADON, et al., on behalf of themselves and all others similarly situated, are represented by: Jody Jackson, Esq. JACKSON & JACKSON 201 Saint Charles Avenue New Orleans, LA 70170 Defendants-Appellants Berry's Reliable Resources, et al., are represented by: Larry M. Aisola, Esq. 208 W. Judge Perez Drive Chalmette, LA 70043 Telephone: (504) 913-6182 BIG CITY: Harlem Tenants Can Proceed With Rent Fraud Class Action ----------------------------------------------------------------- citylimits.org reports that a state judge granted class certification to past and present tenants in 11 buildings who have sued their landlord for "systemic evasion of the rent regulations" in a case that attorneys say could set a precedent for future actions. Hundreds of tenants across 11 Harlem buildings can now band together to challenge a landlord accused of illegally hiking rents in their stabilized apartments after a state judge approved their unique class action lawsuit last month. The tenants say the landlord, a collection of single-entity LLCs tied to the firms Big City Properties and Magnolia Holdings, inflated rents by making phony individual apartment improvement claims, failing to register units with the state and withholding stabilized leases despite receiving city tax breaks. Following an investigation by the housing watchdog group Housing Rights Initiative (HRI), residents sued the landlord in 2016 and, after a series of court challenges, won an appeal paving the way for the class action case in 2019. A state judge granted class certification to past and present tenants in 11 buildings who have sued their landlord for "systemic evasion of the rent regulations" in a case that attorneys say could set a precedent for future actions. A building at 110 Convent Ave. in Harlem. Adi TalwarTenants at 110 Convent Ave. in Harlem are part of a class action lawsuit claiming their landlord fraudulently raised their rents in stabilized apartments. Hundreds of tenants across 11 Harlem buildings can now band together to challenge a landlord accused of illegally hiking rents in their stabilized apartments after a state judge approved their unique class action lawsuit last month. The tenants say the landlord, a collection of single-entity LLCs tied to the firms Big City Properties and Magnolia Holdings, inflated rents by making phony individual apartment improvement claims, failing to register units with the state and withholding stabilized leases despite receiving city tax breaks. Following an investigation by the housing watchdog group Housing Rights Initiative (HRI), residents sued the landlord in 2016 and, after a series of court challenges, won an appeal paving the way for the class action case in 2019. Manhattan Supreme Court Justice Sabrina Kraus formally certified the class on Aug. 15, writing that the landlords are accused of "systemic evasion of the rent regulations" and that tenants showed in great detail a "methodical attempt to illegally inflate rents and evade the requirements of rent-stabilization." She ordered the landlords to provide the tenants' attorneys, from the firm Newman Ferrara, with current rent rolls, as well as information about former residents dating back to December 2012 so they can be added to the case. Attorney Roger Sachar said the class could include around 2,000 past and present residents of the 11 buildings who may be entitled to damages as well as new stabilized leases. The case appears to be the first certified class action lawsuit in New York State for individual apartment improvement fraud, in which owners raise rents in stabilized units based on repair costs that may be fictional, according to HRI and the tenants' attorneys. "This is the first time this has happened in New York State court that we have been able to put all of these tenants in one case and hold a landlord responsible on a multi-building scale for cheating on improvements," Sachar said. Each building is located north of West 129th Street, but the judge's order could have an "astonishing" impact for tenants elsewhere in the city, added lawyer Lucas Ferrara. "This sends a chilling message that cheaters cannot prosper," Ferrara said. A landlord attorney in 2019 told The Real Deal that such a class action lawsuit would be a "nightmare" for property owners because the precedent could lead to longer, costlier cases. New York City has just over 1 million rent-stabilized apartments-mostly concentrated in buildings with six or more units built before 1974 and newer properties where owners receive tax breaks or other subsidies. Under state law, annual rent increases must adhere to a formula set by a nine-member board selected by the mayor-the Rent Guidelines Board-except in cases where the property owner makes building-wide or apartment-specific renovations. Since new tenant protection laws took effect in 2019, landlords can only increase rents on stabilized units by a small percentage with state approval after completing an individual apartment improvement, or IAI, like installing a new stove, refrigerator, cabinets or flooring. Prior to 2019, however, owners did not have to alert the state or new tenants that they had raised rents as a result of an IAI. Most IAI rent increases occurred when units were empty, coinciding with significant rent increases that landlords were also allowed to apply to vacant units until 2019. At the time, apartments could be deregulated-no longer subject to stabilization price restrictions-after rents surpassed a certain threshold, often through a combination of annual increases, improvement hikes and the vacancy bump. All of the examples of alleged fraud in this lawsuit occurred prior to the new 2019 laws. The financial incentives and lack of oversight for property owners spurred rampant IAI fraud, critics long charged. Landlords say that while some fraud occurs, IAIs are essential for covering the cost of needed rehabilitation, especially since the state ended the vacancy increase. Indeed, many of the improvements are justified, especially in older housing stock. But in the case of the 11 Harlem buildings, the property owners used false IAI claims to inflate rents, the lawsuit charges. One unit at 408 West 129th St. had its legal regulated rent raised by about $969 per month between 2013 and 2014-a move that would require nearly $44,000 in work, the tenants say. Another apartment in the building went up by $1,060 from 2012 to 2013, a 97 percent increase that would have required over $45,800.00 in improvements. The owners of a third stabilized apartment at 3750 Broadway increased the rent from $620.77 to $2,200 between 2008 and 2011, a spike that would have required more than $83,200 in IAIs. The ownership group never provided documents proving the work was performed, according to the lawsuit. Other tenants simply never received a stabilized lease, according to the lawsuit, even as the landlords received J-51 tax breaks-incentives for owners who make improvements to their buildings but automatically extend stabilization status to apartments for 30 years. Some tenants were given free-market leases upon moving into apartments though the landlord had not provided any information to show why the unit was deregulated, the suit states. A lawyer representing the landlord group did not respond to multiple emails and phone calls seeking comment for this story. The phone number for Big City went directly to an automated system for employees. In court documents, the property owners argued that each claim was distinct because some tenants claimed dubious IAI increases while others were given incorrect leases, and because some currently live in the building while others have moved out. They also said the tenants should have their claims heard individually before the state's Department of Homes and Community Renewal (HCR). Kraus, the state judge, disagreed with those arguments in her decision. An HCR spokesperson declined to comment on the specific lawsuit, but said the state has "zero tolerance for landlords who unlawfully overcharge tenants." But the practice has persisted, HCR data shows. A 2012 investigation by the agency's Tenant Protection Unit (TPU), created to investigate illegal eviction and deregulation, conducted more than 1,100 landlord audits and found no proof of the IAIs that were used to justify rent increases in 40 percent of cases. The investigation returned around 28,000 apartments to the stabilized rolls, according to a city comptroller report. The HCR spokesperson said that TPU enforcement has helped return almost 95,000 apartments to the regulated system after they were improperly registered. Still, the amount of unexamined fraud far outpaces accountability, said HRI Founder and Executive Director Aaron Carr, who spearheaded the months-long investigation triggering the class action lawsuit. "Individual Apartment Improvement fraud is by far and wide the most common type of fraud pervading the rent stabilization system," Carr said. "The potential impact of this ruling on the lives of tenants cannot be overstated." If the tenants win the lawsuit or reach a settlement, the monthly rent in their apartments would likely revert to legally mandated stabilization levels and tenants in deregulated units would receive stabilized leases. Many, like tenants who moved out as prices rose, could receive money to cover any wrongful expenses. Carr said he expects that the case "will undoubtedly open the floodgates" for similar lawsuits on behalf of tenants who have experienced fraud. "Let the games begin," he said [GN] BUCCANEERS LTD: Bid to Seal Docs & Testimony in Cin-Q Suit Granted ------------------------------------------------------------------ In the case, CIN-Q AUTOMOBILES, INC., et al., Plaintiffs v. BUCCANEERS LIMITED PARTNERSHIP, Defendant, Case No. 8:13-cv-1592-AEP (M.D. Fla.), Magistrate Judge Anthony E. Porcelli of the U.S. District Court for the Middle District of Florida, Tampa Division, issued an order: a. granting in part and denying in part (i) the Defendant's Motion to Address for Purposes of the Notice Program the Limitation of Reverse Lookups Under the Circumstances of the Case and (ii) Plaintiffs' Motion to order fax notice and publication notice; b. denying as moot (i) the Defendant's Unopposed Motion to Seal Documents attached to Defendant's Motion for an Extension of Time, (ii) the Defendant's Motion for Extension of Time to File/Submit its memorandum regarding ascertainability and supplemental notice, and (iii) the Defendant's Motion for Leave to file a response to the Plaintiff's Request to Alter and Amend the Settlement Agreement by using for Purposes of Mailed Notice the Reverse Lookup Unilaterally Directed by Class Counsel; and c. granting the Defendant's Motion to Seal Documents and Testimony. On Aug. 31, 2022, the cause came before the Court for an evidentiary hearing regarding the Motion to Address for Purposes of the Notice Program the Limitation of Reverse Lookups Under the Circumstances of this Case filed by Defendant Buccaneers Team LLC f/k/a Buccaneers Limited Partnership ("BTL" or "Defendant") and upon Plaintiffs Cin-Q Automobiles, Inc. and Medical & Chiropractic Clinic, Inc. (collectively, "Cin-Q") Motion to order fax notice and publication notice. The heart of the issue presented by the parties' competing motions was how to identify absentee Class Members to receive direct notice. On March 29, 2022, the Court granted the Plaintiff's unopposed motion for preliminary approval of class settlement. At that time, it approved the proposed Notice program as it appeared to satisfy the requirements of Federal Rule of Civil Procedures 23(c)(2)(B). The Notice program in the Settlement Agreement, which the Court incorporated into its Order, provides for Cin-Q and BTL to provide Notice to Class Members via U.S. mail to the addresses associated with the fax numbers at issue and by Settlement Website. The Settlement Administrator, Epiq Class Action & Claim Solutions, Inc., would obtain the mailing addresses through a reverse-lookup of the fax numbers. The Claim Form would be included with the mailed Notice and would also be accessible to download from the Settlement Website. Additionally, the Settlement Agreement leaves to the Court's discretion whether to provide notice by facsimile and/or publication, following issuance of the notice via U.S. mail and by Settlement Website. The Court noted that if it determined at a later time that the combination of providing notice by posting it on the Settlement Website and by mailing it through the reverse-lookup process lacked efficacy in sufficiently notifying Class Members, it would order that notice be provided by other means, including by publication and/or by facsimile According to the Settlement Agreement and the Court's Order, within 10 days of the preliminary approval Order, Cin-Q and BTL were to provide Epiq with the records identifying the fax numbers to which the facsimile advertisements offering tickets to Tampa Bay Buccaneers games were allegedly sent, which Epiq would then use to locate addresses for Class Members. By May 31, 2022, the parties were directed to file simultaneous briefing as to whether the Court should order additional publication and/or fax notice based on the results of the reverse-lookup process. What ensued was multiple filings by the parties and hearings to address concerns over the results of Epiq's reverse lookup, where they used TransUnion as a vendor. Ultimately, the Court ordered that a second reverse lookup be conducted by Epiq. Epiq conducted a second reverse lookup using LexisNexis as a vendor, which led to BTL filing a motion to address the reverse lookups for the purposes of the Notice Program. In contemplating what Cin-Q and BTL agreed to and balancing the due process rights of the absentee Class Members and BTL, Judge Porcelli finds that direct mail notice remains appropriate in the case. However, in considering the reliability and verifiability of the reverse lookups and the unique circumstances presented by this case where the facsimile advertisements were allegedly sent more than a decade ago, he must direct the best notice that is practicable under the circumstances to all Class Members. Therefore, he finds that it is appropriate to send direct mail notice to all individuals and entities identified as a single match to a unique fax number in the TransUnion reverse lookup, as this appears to be the most reliable set of results from the reverse lookup. Additionally, Judge Porcelli finds that direct mail notice to all individuals and entities identified as one of multiple matches to a unique fax number in the TransUnion reverse lookup is also appropriate because the TransUnion reverse lookup is the industry standard for this type of search and it is focused on identifying individuals and entities who were associated with the phone number during the relevant time period. While he recognizes that direct notice to multiple individuals associated with the same unique fax number during the relevant time period may be somewhat overinclusive, to not send notice to those multiple matches would deprive direct notice to Class Members. Moreover, Judge Porcelli finds that direct mail notice to all individuals and entities identified as a single match to a unique phone number in the LexisNexis reverse lookup is also appropriate. He also finds that the single matches would include more Class Members and be more easily verifiable. Based upon the representations from the parties, although not clear from the record, the sum of all matches from TransUnion and single matches from LexisNexis result in potentially delivering direct notice to approximately 63% of the class. This, in addition to publication notice as contemplated in the Settlement Agreement, will reasonably notify Class Members. There are multiple limitations in place for the claims process, including that the claimant must provide the fax number associated with the claim (which will not be included in the notice) and certify under penalty of perjury that the information they have provided in the Claim Form is true and correct. Additionally, Epiq will reject any claim that does not substantially comply with the instructions on the Claim Form or the terms of the Agreement or is postmarked later than the Claim Deadline. The decision of Epiq as to whether a claim is valid is final and binding upon the parties, subject to an appeal by a party or any absent Class Member, which the parties will endeavor to resolve without Court intervention. Any disputes regarding such determination, including as to whether a claim is fraudulent or valid, is subject to review by the Court. Judge Porcelli finds that these are sufficient safeguards against non-class member claims while reaching as many Class Members as reasonably possible. Cin-Q's request for facsimile notice is not appropriate because the safeguards referenced would fail to provide BTL with adequate safeguards against claims by non-class members and the record does not support that notice by facsimile would be reliable in reaching Class Members. At the hearing, the Intervenors argued that the Court should consider independent advice from a notice expert in order to determine the best possible notice with the furthest reach. The Court found the request to be a prudent one, but the Intervenors did not provide the Court with supporting authority for its proposition that the Court has the authority to amend the Notice Program outside the bounds of the Settlement Agreement and the Court's preliminary approval Order. As such, Judge Porcelli directs the Intervenors to brief the issue. Accordingly, he grants in part and denies in part (i) the Defendant's Motion to Address for Purposes of the Notice Program the Limitation of Reverse Lookups Under the Circumstances of the Case. The Settlement Administrator will provide Notice to all of the matched results from the TransUnion reverse lookup and to the single matched results from the LexisNexis reverse lookup. The Settlement Administrator will engage in its standard process of verification, including but not limited to deduplication and updating mailing addresses with the National Change of Address Database, and any other process contemplated in the Settlement Agreement. Judge Porcelli also grants in part and denies in part the Plaintiffs' Motion to order fax notice and publication notice. The motion is granted to the extent that Publication Notice will occur as contemplated in the Settlement Agreement and as ordered at the hearing, and otherwise denied. The Defendant's Unopposed Motion to Seal Documents attached to Defendant's Motion for an Extension of Time, its Motion for Extension of Time to File/Submit its memorandum regarding ascertainability and supplemental notice, and its Motion for Leave to file a response to Plaintiff's Request to Alter and Amend the Settlement Agreement by using for Purposes of Mailed Notice the Reverse Lookup Unilaterally Directed by Class Counsel are denied as moot. Judge Porcelli grants the Defendant's Motion to Seal Documents and Testimony to the extent that BTL's Exhibit 3A was admitted into evidence at the hearing and given that the document includes the results of the reverse lookups including personal identifying information and the class fax numbers at issue in the case, it is appropriate to have those documents sealed. For the same reasons, BTL moved to seal Exhibit 4 (Parts 1-3) in the Plaintiffs' Motion to Certify, which the Court granted. The Court sua sponte orders that Exhibit 1 in Plaintiffs' Response in Opposition to Defendant's Motion to Address the Notice Program will be sealed as it contains some fax numbers of the Class Members. Absent further order of the Court, these filings will remain under seal until the case is closed. The parties are directed to review the docket for any additional disclosures of the class fax numbers and if found, will file a motion requesting those matters be sealed pursuant to Local Rule 1. The Intervenor may file a legal memorandum regarding the issues raised at the hearing. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/yruspy8w from Leagle.com. CANE BAY: District of Maryland Dismisses Manago Consumer Suit ------------------------------------------------------------- In the case, GLENDORA MANAGO, et al., On behalf of themselves and all others similarly situated, Plaintiffs v. CANE BAY PARTNERS VI, LLLP et al., Defendants, Civil Action No. 20-cv-0945-LKG (D. Md.), Judge Lydia Kay Griggsby of the U.S. District Court for the District of Maryland grants the Defendants' motions to dismiss and dismisses the amended complaint. The Plaintiffs in this putative class action matter allege that the Defendants have engaged in a scheme to provide short-term, usurious loans, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sections 1961-68; the Maryland Consumer Loan Law ("MCLL"), Md. Code Ann., Com. Law Sections 12-301-12-307, 11-201-11-223; the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law Sections 13-101-13-501d; and other state laws. The putative class action matter relates to an alleged tribal lending scheme to make online short-term loans that carry high interest rates. Specifically, the Plaintiffs allege that Defendants David Johnson and Kirk Chewning, and their company Cane Bay Partners VI, LLLP, (collectively, the "Cane Bay Defendants"), operated a lending company known as Makes Cents, Inc. d/b/a MaxLend. They also allege that the Cane Bay Defendants, and members of the Mandan, Hidatsa, and Arikara Nation (the "MHA Nation") of North Dakota (the "Tribal Defendants"), have collaborated to make usurious loans to persons located throughout the United States through MaxLend, including certain loans made to the individually named Plaintiffs in this action. The Plaintiffs assert the following 21 counts against the Cane Bay Defendants and the Tribal Defendants in the amended complaint: (1) Civil RICO claim against the Cane Bay Defendants (Count I); (2) RICO Conspiracy claim against the Cane Bay Defendants (Count II); (3) Maryland Consumer Loan Law claim against the Cane Bay Defendants (Count III); (4) Maryland Consumer Protection Act claim against the Cane Bay Defendants (Count IV); (5) Florida usury law claim against the Cane Bay Defendants (Count V); (6) Florida Deceptive and Unfair Trade Practices Act claim against the Cane Bay Defendants (Count VI); (7) Texas usury law claim against the Cane Bay Defendants (Count VII); (8) Texas Deceptive and Unfair Trade Practices Act claim against the Cane Bay Defendants (Count VIII); (9) North Carolina usury law claim against the Cane Bay Defendants (Count IX); (10) North Carolina Consumer Finance Act claim against the Cane Bay Defendants (Count X); (11) North Carolina Unfair Trade Practices Act claim against the Cane Bay Defendants (Count XI); (12) Oregon usury law claim against the Cane Bay Defendants (Count XII); (13) Michigan usury law claim against the Cane Bay Defendants (Count XIII); (14) Michigan Consumer Protection Act claim against the Cane Bay Defendants (Count XIV); (15) South Carolina usury law claim against the Cane Bay Defendants (Count XV); (16) South Carolina Unfair Trade Practices Act claim against the Cane Bay Defendants (Count XVI); (17) Unjust Enrichment claim against the Cane Bay Defendants (Count XVII); (18) Civil Conspiracy claim against the Cane Bay Defendants (Count XVIII); (19) Civil RICO and RICO Conspiracy claims against the Tribal Defendants (Count XIV); (20) Declaratory Judgment claim against the Tribal Defendants (Count XX); and (21) Violations of state law claims against the Tribal Defendants (Count XXI). As relief, the Plaintiffs seek, among other things, to recover monetary damages from the Cane Bay Defendants and to receive prospective injunctive and declaratory relief from the Tribal Defendants. Plaintiff Manago is a Maryland resident who applied for, and received, two loans from MaxLend in 2019. The other named Plaintiffs are Karen Peterson, Diana Costa, Colleen Hunter, Sharon Davis, Leslie Turner, Camilla Vernon, and Lashaunya Morris (collectively, the "Out-of-State Plaintiffs"). The Out-of-State Plaintiffs are residents of Florida, Texas, North Carolina, Oregon, Michigan, and South Carolina, respectively, who applied for, and received, loans from MaxLend. The Cane Bay Defendants -- Kirk Chewning, David Johnson, and Cane Bay Partners VI, LLLP -- founded MaxLend in December 2011. The Tribal Defendants, Richard Mayer, Mark Fox, Cory Spotted Bear, Sherry Turner-Lone Fight, Mervin Packineau, V. Judy Brugh, Fred Fox, Monica Mayer, Karen Rabbithead, David Blacksmith, and Wesley Scott Eilson are members of the MHA Nation. The Plaintiffs allege that the Cane Bay Defendants entered into a tribal lending scheme with the MHA Nation in 2011. They also allege that, pursuant to this scheme, MaxLend offers high-interest short-term loans and charges up to 841.4532% annual interest on short-term loans in the amount of up to $2,500. In this regard, they contend that MaxLend "is merely a front for Kirk Chewning's and David Johnson's business which is operated through non-tribal entity Cane Bay Partners and other non-tribal companies associated with Johnson and Chewning." They also contend that the Cane Bay Defendants, and other affiliated entities, operate this lending business by "securing funding, registering domains, designing the websites, marketing the business, underwriting and approving loans, and analyzing returns to adjust the lending algorithms. And so, the Plaintiffs maintain that the MHA Nation "has little meaningful involvement in" MaxLend. The Plaintiffs also allege that the Cane Bay Defendants violated RICO "by participating, directly or indirectly, in the conduct of the Enterprise's affairs in the collection of unlawful debt." And so, they contend that they have been injured as a result of the Cane Bay Defendants' alleged RICO violations by, among other things, "the payment of unlawful and usurious rates of interest on loans made by the Enterprise." Manago alleges that she ultimately paid $1,836.20 to pay off this loan. She also alleges that she received another loan from MaxLend in the amount of $600 and that the interest rate for this loan was 581.89%. The Plaintiffs commenced the matter on April 13, 2020, and they amended the complaint on Dec. 15, 2020. On Feb. 4, 2022, the Defendants filed a motion to dismiss the Out-of-State Plaintiffs' claims, pursuant to Fed. R. Civ. P. 12(b)(2) and (b)(3). THe Plaintiffs filed a response in opposition to the Defendants' motion on March 4, 2022. The Defendants filed a reply in support of their motion on March 25, 2022. Def. 1st Reply. On Feb. 4, 2022, the Defendants also filed a motion to dismiss Manago's claims, pursuant to Fed. R. Civ. P. 12(b)(6). The Plaintiffs filed a response in opposition to this motion on March 4, 2022. The Defendants filed a reply in support of their motion on March 25, 2022. The Defendants have moved to dismiss the matter, pursuant to Fed. R. Civ. P. 12(b)(2), (b)(3) and (b)(6), upon the grounds that: (1) Manago fails to state plausible RICO and Maryland state law claims in the amended complaint; (2) the Court lacks personal jurisdiction over all Defendants as to the Out-of-State Plaintiffs' claims; and (3) venue is improper over all Defendants as to the Out-of-State Plaintiffs' claims. Specifically, the Defendants argue that Manago fails to state plausible civil RICO claims in this action, because: (1) she cannot pursue a RICO claim against the Tribal Defendants for only injunctive relief; (2) she does not allege sufficient facts to establish the elements of a RICO enterprise; and (3) she fails to allege a plausible RICO conspiracy claim against the Cane Bay Defendants. They also argue that Manago's Maryland state law claims should be dismissed, because her declaratory judgment and violation of state law claims against the Tribal Defendants are not standalone claims and she fails to state plausible MCLL, MCPA, unjust enrichment and civil conspiracy claims in the amended complaint. Lastly, they argue that venue is not proper in this District, and that the Court lacks personal jurisdiction over all Defendants with regards to the Out-of-State Plaintiffs' claims, because these Plaintiffs cannot rely upon the federal RICO claims asserted in this action to establish pendant jurisdiction. In their responses in opposition to the Defendants' motions, the Plaintiffs concede that they cannot pursue their RICO claim against the Tribal Defendants. But, they counter that the Court should not dismiss the remaining RICO claims against the Cane Bay Defendants, because the amended complaint plausibly states a RICO claim with regards to these Defendants. They further argue that they state plausible MCLL, MCPA, unjust enrichment, civil conspiracy, declaratory judgment, and injunctive relief claims in the amended complaint. In addition, they contend that venue is proper, and that the Court possesses personal jurisdiction over all Defendants, with regards to the Out-of-State Plaintiffs' claims. And so, they request that the Court denies the Defendants' motions to dismiss. Judge Griggsby opines that a careful reading of the amended complaint makes clear that the Plaintiffs have not plausibly alleged civil RICO and RICO conspiracy claims in the amended complaint, because the amended complaint lacks sufficient factual allegations to demonstrate the existence of a RICO enterprise. In the absence of a viable federal RICO claim, the Out-of-State Plaintiffs cannot establish pendant jurisdiction to pursue their state law claims. A careful reading of the amended complaint also shows that Manago's MCLL, MCPA, unjust enrichment, and civil conspiracy claims are not plausible, and that without these state law claims, there is no legal basis for her requests for declaratory and injunctive relief. And so, Judge Griggsby grants the Defendants' motions to dismiss and dismisses the amended complaint. Judgment is entered accordingly. Each party to bear its own costs A full-text copy of the Court's Sept. 2, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/4h2y38cr from Leagle.com. CASELLA WASTE: Rodney, et al., Seek to Conditionally Certify Class ------------------------------------------------------------------ In the class action lawsuit captioned as JOSEPH WILSON RODNEY, JR., et al., Individually and on behalf of all others similarly situated, v. CASELLA WASTE SYSTEMS, INC., Case No. 2:21-cv-00196-cr (D. Vt.), the Plaintiffs Joseph Wilson Rodney, Jr., Rosemarie Sibley, and Kenneth Messom ask the Court to enter an order: 1. conditionally certifying a class of: "all current and former Waste Disposal Drivers who worked for Casella Waste Systems, Inc., anywhere in the United States, at any time from August 17, 2018 through the final disposition of this matter” pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b);" 2. approving the form of Plaintiffs' proposed Notice; 3. setting a 60-day notice period; 4. authorizing Plaintiffs' counsel to mail, e-mail, and text- message the Notice at the beginning of the 60 notice period; 5. authorizing Plaintiffs' counsel to send a reminder Notice 30 days prior to the notice deadline; 6. ordering the Defendant, Casella Waste Systems, Inc. to post the Court-approved Notice in a conspicuous location next to the time clocks at all Casella worksites for the duration of the 60-day opt-in period; 7. directing Casella to produce a list of all Putative Class Members, in a computer readable format (such as Excel), who worked for Casella at any time from August 17, 2018 through the final disposition of this matter, including each Putative Class Members' contact information. Casella is a waste management company based in Rutland, Vermont, United States. A copy of the Plaintiffs' motion dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3L8qxYi at no extra charge.[CC] The Plaintiffs are represented by: Tristan Christopher Larson, Esq. LARSON & GALLIVAN LAW, PLC 128 Merchants Row, Suite 405 Rutland, Vt. 05701 Telephone: (802) 779-9771 E-mail: larson@larsongallivan.com - and - Clif Alexander, Esq. Austin W. Anderson, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com CHUNG SOL GARDEN: Underpays Servers, Shin Suit Alleges ------------------------------------------------------ JIN HEE SHIN, individually and on behalf of others similarly situated, Plaintiff v. CHUNG SOL GARDEN CORP dba CHUNG SOL BAT and NAN I YI, Defendants, Case No. 2:22-cv-05293 (D.N.J., August 30, 2022) is a collective action complaint brought against the Defendants for their alleged violations of the Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (NJWHL). The Plaintiff was employed by the Defendants as a server at Chung Sol Garden from in or around November 2021 until July 22, 2022. According to the complaint, the Plaintiff and other similarly situated servers were required by the Defendants to perform a substantial amount of non-tipped "side work" in excess of 20% of their time at work. However, the Defendants compensated them at the tipped minimum wage rate rather than the full minimum wage rate. The Plaintiff claims that the Defendants failed to post and/or keep posted in a conspicuous place on their premises a notice explaining the tipped minimum wage or tip credit provisions of the FLSA. The Plaintiff also alleges that the Defendants illegally took and retained credit card tips and cash tips, intended for servers and kitchen workers, chefs in the restaurant. In addition, the Defendants sometimes made the hourly tipped food service workers work off-the-clock without any compensation. Moreover, the Defendants allegedly manipulated the time cards of their employees by manually punching them in and out, says the Plaintiff. The Plaintiff seeks to recover, for himself and all other similarly situated servers, all unpaid wages, misappropriated tips, overtime compensation, and other damages due under the FLSA and the NJWHL, as well as liquidated and/or punitive damages, costs and expenses of this action together with reasonable attorneys' fees, pre- and post-judgment interest, and other relief as the Court deems just and proper. Chung Sol Garden Corp. operates a Korean restaurant located in Edison, New Jersey. Defendants Chung Sol Bat and Na I Yi are co-owners of the Corporate Defendant. [BN] The Plaintiff is represented by: Ryan J. Kim, Esq. RYAN KIM LAW, P.C. 222 Bruce Reynolds Blvd., Suite 490 Edison, NJ 07024 E-mail: ryan@RyanKimLaw.com CIGNA CORP: Medical Societies Join Physicians' Wage Class Action ---------------------------------------------------------------- insidernj.com reports that the following is a statement from Steven Orland, MD, the 230th president of the Medical Society of New Jersey (MSNJ): "MSNJ has joined together with the American Medical Association (AMA) and the Washington State Medical Association in a class-action lawsuit against Cigna (Stewart v. Cigna). Through this suit, which alleges that Cigna has been wrongly underpaying physicians, we hope to bring any misconduct by Cigna to the forefront and stop it in its tracks, all the while encouraging solutions that benefit patients and physicians alike. MSNJ continues to support all work that aligns with our mission - we are proud to join the AMA and the Washington State Medical Association in this effort to promote the betterment of public health, while safeguarding the rights of patients and physicians, both here in New Jersey and throughout the nation." About the Medical Society of New Jersey (MSNJ): MSNJ is the oldest professional medical society in the United States, with more than 6,500 members. MSNJ is the leading advocate for physicians in the state of New Jersey, including physicians in every specialty and practice setting. Its mission is to promote the betterment of the public health and the science and art of medicine, to enlighten public opinion in regard to the problems of medicine, and to safeguard the rights of the practitioners of medicine. For more information, visit www.msnj.org. [GN] CIGNA HEALTH: N.D. California Narrows Claims in RJ ERISA Class Suit ------------------------------------------------------------------- In the case, RJ, as the representative of her beneficiary son, SJ; LW, as the representative of her beneficiary spouse MW; and DS, an individual, and on behalf of themselves and all others similarly situated, Plaintiffs v. CIGNA HEALTH AND LIFE INSURANCE COMPANY, et al., Defendants, Case No. 5:20-cv-02255-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, grants in part and denies in part the motions to dismiss the First Amended Class Action Complaint brought by Cigna and MultiPlan, Inc. In this putative class action suit, the Plaintiffs challenge Cigna's alleged failure to reimburse covered mental health provider claims at the usual, customary, and reasonable ("UCR") rates. RJ is a participant in an employee benefits plan subject to the Employee Retirement Income Security Act of 1974 ("ERISA"), which is sponsored and funded by "Inuit, Inc." She is the parent of her beneficiary son, SJ, who is also a behavioral health patient. LW is a participant in an employee benefits plan subject to ERISA, which is sponsored and funded by International Paper Co. LW is the spouse of plan beneficiary, MW, who is a behavioral health patient. DS is a participant in an employee benefits plan subject to ERISA, which is sponsored and funded by Impossible Foods, Inc. DS is also a behavioral health patient. Cigna is responsible for the administration and payment of claims for behavioral services covered under health plans sponsored or administered by Cigna Corp. or its many wholly owned and controlled subsidiaries, including Cigna Behavioral Health. The Plaintiffs were all members of policies offering out of network ("OON") benefits which Cigna either sold and underwrote or administered on behalf of employers. MultiPlan is a Delaware corporation with a business address in New York. Viant is a Nevada corporation and wholly owned subsidiary of MultiPlan. Summit Estate, Inc. contacted Cigna to verify coverage before providing treatment ("VOB" calls). A Cigna representative confirmed that RJ's son, SJ, had coverage through an "MRC-1" plan, with benefits covered at the 80th percentile of charges for similar services in the same geographic area. A Cigna representative confirmed MW's and DS's plans were "MRC-2" policies and verified that claims would be paid at 150% and 110%, respectively, of the Medicare-based schedule rate for all services. There is, however, no Medicare schedule rates for the substance use disorder services MW and DS were to receive. The MRC-2 policy provides that where a Medicare based amount is not available, "the MRC is determined based on the lesser of: The health care professional or facility's normal charge for a similar service or supply; or the MRC Option I methodology based on the 80th percentile of billed charges." Thus, all claims at issue were required to be paid using the MRC-1 methodology. The Plaintiffs received intensive outpatient program ("IOP") services from Summit Estate for behavioral health disorders, including for mental health and substance use disorders. They submitted timely claims for their treatment to Cigna. Cigna approved the claims for payment, but underpaid all of them. The Plaintiffs used their own funds and resources to pay the unpaid portion of their claims to their treatment providers. The Plaintiffs allege that Cigna was required, but failed to pay each and every one of the claims at issue at the UCR. That is, it was required to pay an amount based on the competitive fees of similar MH/SUD treatment providers in the same geographic area. UCR is a commonly accepted term in the healthcare industry and means generally, the competitive rate charged by similar providers of the same specialty in the same geographic area. For the claims at issue, the UCR rate is "what Cigna was required to reimburse as the `Maximum Reimbursable Charge' ('MRC')." The Plaintiffs understood the UCR rate for MRC I policies to mean the same as or substantially similar to what was published on Cigna's website For many years and until about 2015, Cigna was legally required to use the "FAIR Health" database to calculate UCR in its payment of claims. The significant differences between the publicly available FAIR Health estimates and actual payments provide compelling evidence that the Plaintiffs' claims were not paid based on the UCR. Instead of applying the MCR I methodology, the Defendants used Viant's methodology to "fabricate a fraudulent UCR rate and withhold a substantial part of the payment owed for the Plaintiffs' claims." "Viant's methodology operates by culling data from a 'Outpatient Standard Analytical File' ('SAF')." An SAF is composed of data collected from Medicare Part B providers for services rendered to Medicare beneficiaries by the Department of Health and Human Services (DHHs)/Centers for Medicaid and Medicaid Services (CMS). This methodology produced rates that are a fraction of the FAIR Health benchmark. As part of the MultiPlan "repricing" process, the Plaintiffs received Patient Advocacy Department ("PAD") letters indicating that they should contact Cigna if they "get a bill from a provider for more than the 'What I Owe' amount" indicated in the Cigna Explanation of Benefit ("EOB"). The PAD letters informed them for the first time that Cigna has contracted with Viant to negotiate on your behalf." The letters stated, "we will work with Viant on your behalf to attempt to reduce your expenses from this out-of-network provider." Notwithstanding the absence of any such agreement, Cigna and MultiPlan applied "an unlawful discount" to the rate they paid Summit Estate. As a result, RJ has paid balance bills to Summit Estate totaling more than $36,303.16; MW is financially responsible for a balance owed of $38,372.20; and DS is financially responsible for a balance owed of $37,932.62. The Plaintiffs paid the "underpayment amounts" to their providers from their own funds and resources. On April 2, 2020, RJ filed the original complaint. The Defendants moved to dismiss the complaint, which the Court partially granted on March 23, 2021. It dismissed with prejudice the ERISA ection 502(c) claim for failure to provide plan materials and the ERISA Section 502(a)(3) claim for failure to provide a full and fair review. It also dismissed the following claims with leave to amend: RICO claim (Count I); claim for equitable relief to enjoin acts (Count VII), and "claim for other appropriate equitable relief" (Count VIII). Finally, the Court allowed RJ's ERISA Section 502(a)(1)(B) claims for underpayment of plan benefits (Counts II and III), and alternative claim under ERISA Section 502(a)(3) for violation of fiduciary duties (Count V) to proceed. On April 30, 2021, the Plaintiffs filed the FAC. They assert the following claims: (1) violations of RICO, 18 U.S.C. Section 1962(c) against both Defendants; (2) RICO conspiracy, 18 U.S.C. Section 1962(d) against both Defendants; (3) underpayment of benefits in violation of ERISA against Cigna; (4) breach of plan provisions in violation of ERISA Section 502(a)(1)(B) against Cigna; (5) violation of fiduciary duties of loyalty and duty of care under ERISA and a request for declaratory and injunctive relief against Cigna; and (6) violation of fiduciary duties of loyalty and due care and request for declaratory and injunctive relief against MultiPlan. Presently before the Court are two motions to dismiss the FAC brought by Cigna and MultiPlan. Cigna seeks dismissal of the RICO claims. It contends that the Plaintiffs (1) fail to plausibly allege predicate acts by Cigna; (2) fail to plead a RICO enterprise; and (3) fail to allege that LW and DS suffered a RICO injury. It contends that because the RICO claim fails, the RICO conspiracy claim also necessarily fails. Cigna also argues that LW's claims must be brought in the U.S. District Court for the Western District of Tennessee in accordance with the forum selection clause in her health benefits plan. MultiPlan similarly argues that the RICO claims are deficient because the Plaintiffs fail to adequately plead an "association-in-fact"; a pattern of racketeering activity; RICO standing; and proximate causation. Further, it contends that the sixth claim for equitable relief under ERISA fails to allege sufficient facts to establish a breach of fiduciary duties. Lastly, it contends that the Plaintiffs fail to allege sufficient facts to establish they are entitled to injunctive relief. The Plaintiffs filed oppositions and the Defendants filed replies. Judge Davila finds these matters suitable for disposition without oral argument pursuant to Civil Local Rule 7-1(b). As to the RICO claims, Judge Davila holds that (i) he rejects Cigna's argument that the Plaintiffs must allege reasonable reliance on a specific promise to pay in order to plead a RICO violation based on mail or wire fraud; (ii) the FAC also plausibly alleges that Cigna misled Plaintiffs and their providers by omitting any information about repricing; and (iii) construing these allegations in the light most favorable to the Plaintiffs and considering all reasonable inferences, they are sufficient to support a plausible inference that at the time the VOB calls occurred, Cigna knew what services would be rendered and how they should have been priced, so the FAC satisfactorily alleges two predicate acts of mail and wire fraud. Judge Davila further holds that (i) because the Plaintiffs have self-funded plans, it is not plausible for Cigna to engage in money laundering; (ii) the Plaintiffs' non-conclusory allegations are sufficient to "nudge their claims across the line from conceivable to plausible; (iii) he accepts the Plaintiffs' unequivocal allegation that they paid their treatment providers and finds that LW and DS have satisfactorily alleged a RICO injury; and (iv) the Plaintiffs satisfactorily allege that Cigna and MultiPlan were co-participants in a RICO scheme that caused harm. With respect to the RICO conspiracy claim, Judge Davila holds that the Plaintiffs plead a substantive violation of RICO based on the predicate acts of mail and wire fraud, but not based on the predicate act of money laundering. Therefore the RICO conspiracy claim survives to the extent it is based on mail and wire fraud. The RICO conspiracy claim fails to the extent it is based on money laundering. Regarding forum selection clause in LW's plan, Cigna contends that LW's claims should be dismissed because her health benefits plan contains a forum selection clause requiring a participant or beneficiary to bring an action in connection with the plan in the United States District Court for the Western District of Tennessee. The Plaintiffs raise several arguments in response. First, they assert that a Rule 12(b)(6) motion to dismiss is not the appropriate procedural mechanism for enforcing a forum selection clause. Second, they contend that the forum selection clause is unenforceable because it is stated in the benefits booklet (summary plan description ("SPD")), and not the governing employee benefits plan document. Third, they argue that the forum selection clause is void as a matter of public policy because it is contrary to the language and purpose of ERISA. Fourth, they argue that LW is not asserting "an action in connection with the plan" because the plan is not a defendant, and therefore her claims do not fall within the scope of the forum selection clause. Judge Davila finds these arguments unpersuasive. He says (i) consistent with the First, Third and Sixth Circuit and the district court decisions, a Rule 12(b)(6) motion is an acceptable means of enforcing a forum selection clause: (ii) the SPD states that the "booklet also serves as the portion of the official plan document governing covered benefits" and "constitutes part of, and is incorporated by reference into" LW's benefits plan; and the benefits plan contains the same forum selection clause; (iii) the Plaintiffs have not shown that the prospect of LW having to travel to Tennessee to litigate her claims is so burdensome such that it will effectively deny her of her day in court; and (iv) the forum selection clause applies to actions "in connection with the plan" without regard to who is named as a defendant." As to the sixth claim for breach of ERISA fiduciary duties against it, MultiPlan maintains that the FAC fails to rectify any of the pleading deficiencies. It also contends that the Plaintiffs fail to plead they are entitled to equitable relief. Judge Davila determines that (i) the allegations that support the Plaintiffs' RICO claim also support the breach of fiduciary claim; and (ii) at the pleading stage, "it is exceedingly premature to engage in a battle over whether or not a specific equitable remedy is appropriate." For the reasons he stated, Judge Davila grants in part and denies in part the Defendants' motions to dismiss. The RICO claims are dismissed to the extent they are based on the predicate act of money laundering. LW's claims are also dismissed. These claims are dismissed without leave to amend because further amendments would be futile. The Defendants' motions are denied in all other respects. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/2p93pvph from Leagle.com. CLOVER HEALTH: Loses Bid to Dismiss Bond Securities Suit -------------------------------------------------------- Clover Health Investments, Corp. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that the company moved to dismiss an amended class action complaint but was denied by the court on February 28, 2022. In February 2021, the company and certain of its directors and officers were named as defendants in putative class actions filed in the United States District Court for the Middle District of Tennessee captioned "Bond v. Clover Health Investments Corp. et al.," Case No. 3:21-cv-00096. Said complaint asserts violations of sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated under the Exchange Act. The Kaul action asserts additional claims under sections 11 and 15 of the Securities Act. 26 The complaints generally relate to allegations published in an article issued on February 4, 2021, by Hindenburg Research LLC. The complaints seek unspecified damages on behalf of all persons and entities who purchased or acquired Clover securities during the class period (which began in October 6, 2020, and, depending on the complaint, ends on February 3, 2021, or February 4, 2021), as well as certain other costs. In April 2021, the Middle District of Tennessee class actions were consolidated under "Bond v. Clover Health Investments, Corp. et al.," Case No. 3:21-cv-00096 as the lead case. On June 28, 2021, the plaintiffs filed an amended complaint, which also generally relates to allegations published in the Hindenburg article, but adds, among other things, allegations from confidential witnesses who purport to be former employees of the company. The company moved to dismiss the amended complaint on August 28, 2021. That motion was denied on February 28, 2022. Clover Health Investments, Corp. provides Medicare Advantage plans through a software platform based in Tennessee. CLOVER HEALTH: Loses Bid to Junk Kaul Suit ------------------------------------------- Clover Health Investments, Corp. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that the company moved to dismiss the amended class action captioned "Kaul v. Clover Health Investments Corp. et al.," Case No. 3:21-cv-00101 but was denied by the court on February 28, 2022. In February 2021, the company and certain of its directors and officers were named as defendants in putative class actions filed in the United States District Court for the Middle District of Tennessee captioned "Kaul v. Clover Health Investments Corp. et al.," Case No. 3:21-cv-00101. Said complaint assert violations of sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated under the Exchange Act including additional claims under sections 11 and 15 of the Securities Act. The complaint generally relate to allegations published in an article issued on February 4, 2021, by Hindenburg Research LLC. The complaints seek unspecified damages on behalf of all persons and entities who purchased or acquired Clover securities during the class period (which began in October 6, 2020, and, depending on the complaint, ends on February 3, 2021, or February 4, 2021), as well as certain other costs. In April 2021, the Middle District of Tennessee class actions were consolidated under "Bond v. Clover Health Investments, Corp. et al.," Case No. 3:21-cv-00096 as the lead case. On June 28, 2021, the plaintiffs filed an amended complaint, which also generally relates to allegations published in the Hindenburg article, but adds, among other things, allegations from confidential witnesses who purport to be former employees of the company. The company moved to dismiss the amended complaint on August 28, 2021. That motion was denied on February 28, 2022. Clover Health Investments, Corp. provides Medicare Advantage plans through a software platform based in Tennessee. CLOVER HEALTH: Loses Bid to Toss Tremblay Class Suit ---------------------------------------------------- Clover Health Investments, Corp. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that the company moved to dismiss the amended class action captioned "Tremblay v. Clover Health Investments, Corp." et al., Case No. 3:21-cv-00138 but was denied by the court on February 28, 2022. In February 2021, the company and certain of its directors and officers were named as defendants in putative class actions filed in the United States District Court for the Middle District of Tennessee captioned "Tremblay v. Clover Health Investments, Corp." et al., Case No. 3:21-cv-00138. The complaints assert violations of sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated under the Exchange Act. The Kaul action asserts additional claims under sections 11 and 15 of the Securities Act. The complaint generally relate to allegations published in an article issued on February 4, 2021, by Hindenburg Research LLC. The complaints seek unspecified damages on behalf of all persons and entities who purchased or acquired Clover securities during the class period (which began in October 6, 2020, and, depending on the complaint, ends on February 3, 2021, or February 4, 2021), as well as certain other costs. In April 2021, the Middle District of Tennessee class actions were consolidated under "Bond v. Clover Health Investments, Corp. et al.," Case No. 3:21-cv-00096 as the lead case. On June 28, 2021, the plaintiffs filed an amended complaint, which also generally relates to allegations published in the Hindenburg article, but adds, among other things, allegations from confidential witnesses who purport to be former employees of the company. The company moved to dismiss the amended complaint on August 28, 2021. That motion was denied on February 28, 2022. Clover Health Investments, Corp. provides Medicare Advantage plans through a software platform based in Tennessee. CLOWERS ENTERPRISES: Monroe Sues Over Failure to Pay OT Wages ------------------------------------------------------------- JOHN MONROE, individually and on behalf of all others similarly situated, Plaintiff v. CLOWERS ENTERPRISES, INC., and JONATHAN CLOWERS, Defendants, Case No. 6:22-cv-06094-SOH (W.D. Ark., August 30, 2022) is a collective action complaint brought against the Defendants for their alleged violations of the overtime provisions of the Fair Labor Standards Act and the overtime provisions of the Arkansas Minimum Wage Act. The Plaintiff was employed by the Defendants as a pest control technician from July 2021 until May 2022. Throughout the Plaintiff and other pest control technicians, they regularly worked more than 40 hours per week. They recorded their hours worked via the Defendants' electronic timekeeping system. However, the Defendants deprived 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, says the suit. On behalf of himself and all other similarly situated pest control technicians, the Plaintiff seeks to recover all unpaid wages, liquidated damages, reasonable attorney's fee and all costs connected with this action, and other relief as the Court may deem just and proper. Clowers Enterprises, Inc. provides pest control services. Jonathan Clowers is the owner and director of the Corporate Defendant. [BN] The Plaintiff is represented by: Lydia H. Hamlet, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Tel: (800) 615-4946 Fax: (888) 787-2040 E-mail: lydia@sanfordlawfirm.com josh@sanfordlawfirm.com COCA-COLA CO: Mislabels Dragon Fruit Flavored Soda, Smith Claims ---------------------------------------------------------------- Antionette Smith, individually and on behalf of all others similarly situated, Plaintiff v. The Coca-Cola Company, Defendant, Case No. 0:22-cv-61643 (S.D. Fla., Sept. 2, 2022) is a class action against the Defendant for negligent misrepresentation, fraud, unjust enrichment, and for violations of the Florida Deceptive and Unfair Trade Practices Act, State Consumer Fraud Acts, and Magnuson Moss Warranty Act. The case arises from the Defendant's false, deceptive, and misleading representations of the dragon fruit flavored soda purporting to have "100% Natural Flavors" under the Fanta brand. Though the ingredients include "Natural Flavors," they also include "Malic Acid." The product contains more malic acid than natural flavors, as the former is the second ingredient listed while the latter is the third, which reflects their order of predominance. Unbeknownst to consumers, including Plaintiff, the ingredient list does not disclose that this malic acid is an artificial ingredient which imparts dragon fruit flavoring to the product, says the suit. As a result of the false and misleading representations, the product is sold at a premium price, approximately no less than $2.29 for 20 ounces, 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, the suit asserts. The Coca-Cola Company is an American multinational beverage corporation founded in 1892, best known as the producer of Coca-Cola. The Coca-Cola Company also manufactures, sells, and markets other non-alcoholic beverage concentrates and syrups, and alcoholic beverages.[BN] The Plaintiff is represented by: Will Wright, Esq. THE WRIGHT LAW OFFICE, P.A. 515 N Flagler Dr Ste P-300 West Palm Beach, FL 33401 Telephone: (561) 514-0904 E-mail: willwright@wrightlawoffice.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com COFFEE & GREEN: Bonilla Suit Claims Restaurant Staff's Unpaid Wages ------------------------------------------------------------------- RAMIRO ESPANA BONILLA, individually and on behalf of all others similarly situated, Plaintiff v. COFFEE & GREEN INC. and JAY GURUNG, Defendants, Case No. 1:22-cv-05432 (E.D.N.Y., September 12, 2022) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay minimum wages, failure to pay overtime wages, failure to provide accurate wage statements, and failure to comply with notice and recordkeeping requirements. Mr. Bonilla was employed by the Defendants as a food preparer, delivery worker, cleaner and dishwasher in New York from September 2020 until August 2022. Coffee & Green Inc., is a restaurant company, with principal executive offices located at 2106 36th Ave., Astoria, New York. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 COLONIAL LIFE: Alvitre Labor Suit Removed to C.D. California ------------------------------------------------------------ The case styled SOCORRO OLIVIA ALVITRE, individually, and on behalf of others similarly situated, Plaintiff v. COLONIAL LIFE & ACCIDENT INSURANCE CO., and DOES 1 to 20, inclusive, Defendants, Case No. 22STCV24601, was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California on Sept. 2, 2022. The Clerk of Court for the Central District of California assigned Case No. 2:22-cv-06289 to the proceeding. In the class action complaint, the Plaintiff asserts the following causes of action: (1) failure to pay state minimum wage; (2) failure to pay overtime compensation; (3) failure to pay meal period compensation; (4) failure to pay rest period compensation; (5) failure to furnish timely and accurate wage statements; (6) waiting time penalties; (7) failure to indemnify for all necessary expenditures and losses; and (8) unfair competition. Colonial Life & Accident Insurance Co. is an American insurance company based in Columbia, South Carolina.[BN] The Corporate Defendant is represented by: Robert D. Vogel, Esq. Danielle C. Cepeda, Esq. JACKSON LEWIS P.C. 725 South Figueroa Street, Suite 2500 Los Angeles, CA 90017-5408 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 E-mail: robert.vogel@jacksonlewis.com danielle.cepeda@jacksonlewis.com COLOURPOP COSMETICS: Faces Class Action Over Unsafe Eye Makeup -------------------------------------------------------------- Corrado Rizzi at classaction.org reports that a proposed class action alleges ColourPop Cosmetics eyeshadow palettes and eyeliners are "adulterated" and thus unlawful to sell since they contain certain color additives that are unsafe for use around the eye area. The 32-page complaint alleges the ColourPop products at issue, including the company's shadow palettes, pigment palettes, and pressed powder palettes, are "inherently dangerous" given they contain color additives the Food and Drug Administration has made clear should not be used around the eyes. Per the suit, the presence of the harmful ingredients renders the ColourPop eyeshadow palettes and eyeliners unsafe, adulterated and misbranded under the Federal Food, Drug, and Cosmetic Act (FDCA). Accordingly, it is unlawful for ColourPop to advertise, promote, market, or sell the eye makeup, the filing says. "Defendant markets ColourPop Eye Makeup for a purpose (cosmetic application around the eye area) for which it cannot be used for [sic] both legally and because such use is inherently dangerous," the lawsuit reads. "The Products cannot be used for their principal intended purpose. The Products are thus worthless by virtue of the Defect." According to the lawsuit, ColourPop has deliberately and willfully deceived consumers into believing its eye makeup is safe for its intended use. The suit charges that ColourPop knew that the products were unsafe for use around the eyes but nevertheless marketed the items as safe "without warning consumers of the known dangers." There are more than 100 variations of ColourPop eyeshadow palettes, which range in price from roughly $10 to nearly $40, the filing states. Each product contains between four and 35 distinct colors or shades, the suit relays. The use of color additives is "tightly regulate[d]" by both the FDA and California Health & Safety Code, the complaint says, and the FDA states online that if a product contains a color additive, it must be approved by the agency. Moreover, a color additive may be safe for use in one product, such as lipstick, while still considered unsafe for use in another, such as eyeshadow, the case adds. According to the complaint, the FDA does not allow the following color additives to be included in products intended for use around the eye area: FD&C Red No. 4; D&C Red No. 6, 7, 17, 21, 22, 27, 28, 30, 31, 33, 34, 36; D&C Violet No. 2; Ext. D&C Violet No. 2; FD&C Yellow No. 6; D&C Yellow No. 7, 8, 10, 11; Ext. D&C Yellow No. 7; D&C Orange No. 4, 5, 10, 11; D&C Green No. 6, 8; FD&C Green No. 3; D&C Brown No. 1; and D&C Blue No. 4. Lastly, the lawsuit contends that any disclaimer language used by ColourPop falls short of adequately informing consumers of the risks of using its eye makeup around the eyes in that it "does not assist the consumer in understanding the danger," and is likely to be missed or overlooked. Crucially, ColourPop's disclaimer "does not actually instruct consumers to not use the product in the eye area," and does nothing to suggest any danger exists, the suit says. The case looks to cover all United States residents who bought ColourPop eye makeup containing any of the ingredients listed on this page during the maximum period allowed by law. [GN] COMPASS HEALTH: Underpays Nurse Practitioners, Barber Suit Claims ----------------------------------------------------------------- LAUREN BARBER, KATE HUME, and CATHERINE BAUM, on behalf of themselves and all others similarly situated, Plaintiffs v. COMPASS HEALTH, Defendant, Case No. 2:22-cv-01289 (W.D. Wash., September 12, 2022) is a class action against the Defendant for violations of the Fair Labor Standards Act, the Washington wage statutes, the Wage Rebate Act, and the Consumer Protection Act including failure to pay proper overtime wages, failure to provide uninterrupted meal and rest breaks, and failure to pay all wages and benefits. The Plaintiffs worked for the Defendant as nurse practitioners at any time between 2015 and 2022. Compass Health is a nonprofit corporation, with its principal place of business in Everett, Washington. [BN] The Plaintiffs are represented by: Jeffrey L. Taren, Esq. Lauren I. Freidenberg, Esq. MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, WA 98104 Telephone: (206) 622-1604 Email: JeffreyT@mhb.com LaurenF@mhb.com CSI FINANCIAL: Agrees to Settle Data Breach Class Suit for $2.65M ----------------------------------------------------------------- topclassactions.com reports that CSI Financial Services will pay $2.65 million to resolve claims that it mismanaged a 2021 data breach. The settlement benefits a nationwide Class of individuals whose personal identifying information was compromised in the CSI Financial Services data breach between March 8, 2021 and April 26, 2021. The settlement also covers a subclass of Class Members who lived in California at the time of the data breach. In April 2021, CSI Financial Services—also known as ClearBalance—learned of a data breach when it detected and prevented an unauthorized wire transfer from a ClearBalance account. An investigation into the issue reportedly revealed that a third party gained access to ClearBalance email accounts in March and April of 2021. According to a data breach notice, patients of certain hospitals or healthcare providers could have had their information compromised. This includes names, Social Security numbers, birth dates, ID numbers, contact information, banking information, clinical data, health insurance information and more. Affected consumers took legal action against CSI Financial Services in a class action lawsuit, arguing that the company failed to prevent the data breach or, once the breach was discovered, inform consumers in a timely fashion. Plaintiffs say that CSI Financial could have prevented or mitigated the data breach by taking reasonable cybersecurity measures to protect its systems from third parties. The class action lawsuit also contends that CSI Financial Services should have informed consumers of the breach as soon as they learned of the issue instead of waiting months to inform authorities and affected individuals. CSI Financial Services hasn't admitted any wrongdoing but agreed to a $2.65 million settlement deal to resolve these allegations. Under the terms of this settlement, Class Members can receive a cash payment for losses resulting from the data breach. Class Members who spent time remedying the data breach can claim up to three hours of lost time at a rate of $22.50 per hour, for a maximum lost time payment of $67.50. Class Members can claim up to $1,000 in out of pocket expenses such as credit monitoring, miscellaneous expenses, credit freeze costs and more. Additional payments of $5,000 are available to Class Members who experienced extraordinary out of pocket losses such as falsified tax returns, fraudulent government or medical claims and more. Class Members from California can recover an additional $100 to resolve claims that CSI Financials violated California privacy laws. In addition to receiving cash payments as described above, Class Members can receive two years of identity theft protection free of charge. The deadline for exclusion and objection is Nov. 9, 2022. The final approval hearing for the settlement is scheduled for Jan. 20, 2023. In order to receive settlement benefits, Class Members must submit a valid claim form by Nov. 24, 2022. Who's Eligible Individuals whose personal identifying information was compromised in the CSI Financial Services data breach between 03/08/2021 - 04/26/2021 Potential Award Varies Proof of Purchase Proof of purchase not applicable NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 11/24/2022 Case Name Ivo Kolar v. CSI Financial Services LLC, Case No. 37-2021-00030426, in the Superior Court for the State of California, County of San Diego Final Hearing 01/20/2023 Settlement Website ClearBalanceClassActionSettlement.com Claims Administrator ClearBalance Settlement Administrator 1650 Arch St. Suite 2210 Philadelphia, PA 19103 info@ClearBalanceClassActionSettlement.com 844-999-2066 Class Counsel Timothy G Blood BLOOD HURST & O'REARDON LLP David Lietz MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC Defense Counsel Jon Kardassakis LEWIS BRISBOIS BISGAARD & SMITH LLP DESKTOP METAL: Faces Guzman-Martinez Shareholder Suit in MA Court ----------------------------------------------------------------- Desktop Metal, Inc. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that a class action lawsuit was consolidated in the District of Massachusetts appointing Sophia Zhou as lead plaintiff. In December 21, 2021, January 14, 2022, February 2, 2022, and February 22, 2022, four alleged shareholders of Desktop Metal stock filed purported securities class action complaints in the United States District Court for the District of Massachusetts captioned "Guzman-Martinez v. Desktop Metal," Case No. 1:22-cv-10173. Said complaint alleges that Desktop Metal and certain of its officers and directors violated Sections 10(b) and 20(a) of the Securities and Exchange Act by making false or misleading statements regarding its subsidiary EnvisionTEC's manufacturing and product compliance practices and procedures. On February 4, 2022, the court issued an order consolidating the securities class actions. Desktop Metal, Inc. is pioneering a new generation of additive manufacturing technologies based in Massachusetts. DESKTOP METAL: Faces Hathaway Suit in Massachusetts Court --------------------------------------------------------- Desktop Metal, Inc. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that in January 14, 2022, an alleged shareholder of Desktop Metal stock filed purported securities class action complaints in the United States District Court for the District of Massachusetts captioned "Hathaway v. Desktop Metal, D. Mass.," Case No. 1:22-cv-10059-IT. Said complaint alleges that Desktop Metal and certain of its officers and directors violated Sections 10(b) and 20(a) of the Securities and Exchange Act by making false or misleading statements regarding its subsidiary EnvisionTEC's manufacturing and product compliance practices and procedures. On February 4, 2022, the court issued an order consolidating said action. On July 7, 2022, the court appointed Sophia Zhou lead plaintiff for the class period of February 17, 2021 through November 15, 2021. Desktop Metal, Inc. is pioneering a new generation of additive manufacturing technologies based in Massachusetts. DESKTOP METAL: Faces Luongo Suit in Massachusetts Court ------------------------------------------------------- Desktop Metal, Inc. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that in December 21, 2021, an alleged shareholder of Desktop Metal stock filed purported securities class action complaints in the United States District Court for the District of Massachusetts captioned "Luongo v. Desktop Metal, D. Mass.," Case No. 1:21-cv-12099-IT. Said complaint alleges that Desktop Metal and certain of its officers and directors violated Sections 10(b) and 20(a) of the Securities and Exchange Act by making false or misleading statements regarding its subsidiary, EnvisionTEC's, manufacturing and product compliance practices and procedures. On February 4, 2022, the court issued an order consolidating said securities class actions in the District of Massachusetts. On July 7, 2022, the court appointed Sophia Zhou lead plaintiff for the class period of February 17, 2021 through November 15, 2021. Desktop Metal, Inc. is pioneering a new generation of additive manufacturing technologies based in Massachusetts. DESKTOP METAL: Faces Xie Shareholder Suit in Massachusetts ----------------------------------------------------------- Desktop Metal, Inc. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that a class action lawsuit was consolidated in the District of Massachusetts appointing Sophia Zhou as lead plaintiff. In February 2, 2022, and alleged shareholders of Desktop Metal stock filed purported securities class action complaints in the United States District Court for the District of Massachusetts captioned "Xie v. Desktop Metal," Case No. 1:22-cv-10297-IT). Said complaint alleges that Desktop Metal and certain of its officers and directors violated Sections 10(b) and 20(a) of the Securities and Exchange Act by making false or misleading statements regarding its subsidiary EnvisionTEC's manufacturing and product compliance practices and procedures. In February 4, 2022, the court issued an order consolidating the securities class actions. The court also vacated its earlier order consolidating the Xie action with the other lawsuits and will allow that action to proceed separately, with a new notice to investors, based on a class period of January 15, 2021 to February 16, 2021. Desktop Metal, Inc. is pioneering a new generation of additive manufacturing technologies based in Massachusetts. DOW AGROSCIENCES: Duzman et al. Sue Over Operators' Unpaid Wages ---------------------------------------------------------------- DIEGO GUZMAN and KEVIN WHITLATCH, individually and on behalf of all similarly situated current and former employees, Plaintiffs v. DOW AGROSCIENCES LLC, THE DOW CHEMICAL CO., and DOES 1 through 10, inclusive, Defendants, Case No. 3:22-cv-04962 (N.D. Cal., August 30, 2022) is a class action complaint brought against the Defendants for their alleged violations of the California Labor Code. The Plaintiffs were employed by the Defendants as Plant Operators at the Pittsburg plant. Plaintiff Guzman began his employment with the Defendant from January 6, 2016 and is currently employed and assigned to the 660 Block. Plaintiff Whitlatch was hired on May 14, 2014 and his last date of employment was September 9, 2019. According to the complaint, the Plaintiffs and other similarly situated Plant operators were scheduled by the Defendants to work continuous rotating 12-hour shifts to ensure that there are always employees monitoring. In addition to their usual 12-hour shifts, the Defendants regularly scheduled them to be on-call for primary relief shifts and required them to be available to be contacted and to appear within a designated period of time to work a primary relief shift. Notwithstanding the Defendants' on-call policy, the Plaintiffs were only compensated when they are actually called in to work the relief shift. The Defendants allegedly failed to credit and compensate the Plaintiffs for "reporting for work" when they are on-call and available to report to work within a designated period of time. Moreover, the Defendants failed to maintain complete and accurate payroll records, thereby failed to provide the Plaintiffs with accurate wage statements, says the suit. Dow Agrosciences LLC and The Dow Chemical Co. own and operate the Pittsburg chemical manufacturing plant, located in Contra Costa County, California. [BN] The Plaintiffs are represented by: Jay Smith, Esq. Joshua F. Young, Esq. GILBERT & SACKMAN, A LAW CORPORATION 3699 Wilshire Blvd., Suite 1200 Los Angeles, CA 90010 Tel: (323) 938-3000 Fax: (323) 937-9139 E-mail: js@gslaw.org jyoung@gslaw.org - and – Randy Renick, Esq. Cornelia Dai, Esq. HADSELL STORMER RENICK & DAI LLP 128 North Fair Oaks Ave., Suite 204 Pasadena, CA 91103-3645 Tel: (626) 585-9600 Fax: (626) 577-7079 E-mail: rrr@hadsellstormer.com cdai@hadsellstormer.com ELON MUSK: Bernstein Litowitz Named Lead Counsel in Rasella Suit ---------------------------------------------------------------- In the case, MARC BAIN RASELLA, individually and on behalf of all others similarly situated, Plaintiff v. ELON R. MUSK, Defendant, Case No. 22 Civ. 3026 (ALC) (GWG) (S.D.N.Y.), Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York grants Oklahoma Firefighters Pension and Retirement System's Motion for Appointment as Lead Plaintiff and its request to appoint Bernstein Litowitz Berger & Grossmann LLP as the Lead Counsel. Plaintiff Rasella has sued Musk for securities fraud under 15 U.S.C. Section 78j(b) and 17 C.F.R. Section 240.10b-5 in connection with Musk's alleged failure to timely disclose his acquisition of shares in Twitter in early 2022. Amalgamated Bank, as Trustee for the LongView LargeCap 500 Index VEBA Fund, LongView LargeCap 500 Index Fund, LongView Large Cap 1000 Index Value Fund, and LongView Broad Market 3000 Index Fund; and Oklahoma Firefighters Pension and Retirement System have each moved for appointment as lead plaintiff pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4(a)(3)(B), and Federal Rule of Civil Procedure 23. Mr. Musk "is the founder of Tesla and SpaceX, and according to Forbes, is the richest person in the world." In January 2022, he began purchasing Twitter shares. By March 14, he had acquired more than 5% of Twitter stock. Thus, 17 C.F.R. Section 240.13d-1(a) required Musk to file a "Schedule 13" with the Securities and Exchange Commission ("SEC") by March 24, revealing that his ownership interest exceeded 5%. Musk did not file a Schedule 13 until April 4, however, by which point Musk had acquired a 9.1% ownership interest in Twitter. Once Musk filed the Schedule 13, the price of Twitter shares rose approximately 27%. By failing to disclose that his ownership interest exceeded 5%, Musk was able to acquire Twitter shares at artificially low prices between March 24 and April 4. Rasella and other putative class members sold Twitter shares during this period and therefore "missed the resulting share price increase," instead selling at artificially low prices. According to Rasella, Musk's conduct violated Section 10(b) of the Exchange Act of 1934, 15 U.S.C. Section 78j(b) and SEC Rule 10b-5, 17 C.F.R. Section 240.10b-5. Plaintiff Rasella filed the complaint in the action on April 12, 2022. On June 13, 2022, Oklahoma Firefighters, Amalgamated Bank, and an individual named Partha Pratim Palit moved for appointment as lead plaintiff. Palit subsequently filed a notice of non-opposition to the competing motions. Judge Gorenstein explains that the PSLRA directs a court to "appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of class members." One of the key presumptions in the statute is that the most adequate plaintiff is the person who "has the largest financial interest in the relief sought by the class." The PSLRA carefully sets forth the procedure for doing so and the criteria to be applied. First, within 20 days of filing a putative class action, the plaintiff must publish in a widely circulated national business-oriented publication or wire service, a notice to the class, informing the members of the class of the pendency of the action, and their right to file a motion for appointment as lead plaintiff. Next, within 60 days of publication of the notice, any member or members may apply to the court to be appointed as lead plaintiff(s). Finally, "within 90 days of the publication of the notice, the Court will consider any motion made by a purported class member in response to the notice. First, Judge Gorenstein finds that both Amalgamated Bank and Oklahoma Firefighters have satisfied the PSLRA's procedural requirements. Both have "made a motion in response to a notice under" 15 U.S.C. Section 78u-4(a)(3)(A)(i). Both entities' claims are typical of the class because their claims and injuries arise from the same conduct from which the other class members' claims and injuries arise -- namely, Musk's acquisition of Twitter shares before the belated filing of the Schedule 13 with the SEC on April 4, 2022. They have retained counsel that is capable and qualified to vigorously represent the interests of the class they seek to represent, and there is no evidence that either movant has interests that are antagonistic to the class they seek to represent. Finally, as to financial interest, Oklahoma Firefighters has the largest financial interest in the relief sought by the class, and is the presumptive lead plaintiff. Next, other than the number of litigations in which Oklahoma Firefighters is involved, Judge Gorenstein finds that Amalgamated Bank offers nothing to suggest that Oklahoma Firefighters is not up to serving as lead plaintiff. Amalgamated Bank thus has not rebutted the presumption in Secton 78u-4(a)(3)(B)(iii)(I) that Oklahoma Firefighters should be the Lead Plaintiff. Amalgamated Bank requests in the alternative to be appointed co-lead plaintiff, noting that Elon Musk is "one of the richest people in the world with vast resources at his disposal" and contending that Oklahoma Firefighters is "spread too thin" because of its other litigations to handle the case alone. Oklahoma Firefighters opposes the request. Notwithstanding Amalgamated Bank's professed desire to benefit the class members through its appointment as co-lead plaintiff, Judge Gorenstein finds that "rejecting co-lead plaintiffs and counsel better serves the interests of the investors" because the use of co-lead plaintiffs, each represented by its own counsel, is likely to increase unnecessarily attorney's fees and expenses, or result in unnecessary disagreement among co-counsel. Accordingly, Amalgamated Bank's request for appointment as co-lead plaintiff is denied. Finally, Oklahoma Firefighters has provided evidence that its chosen firm, Bernstein Litowitz, "has extensive experience serving as lead counsel in securities class actions." Indeed, it has been represented that Bernstein Litowitz "is among the few law firms with experience successfully prosecuting claims for securities fraud under Section 10(b) of the Exchange Act on behalf of investors who were harmed by selling (rather than purchasing) shares of a company's stock at prices that were artificially depressed (rather than inflated) by violations of the federal securities laws." Based on these representations, Judge Gorenstein approves Oklahoma Firefighters' selection of Bernstein Litowitz as the Lead Counsel. For the foregoing reasons, Oklahoma Firefighters' Motion for Appointment as Lead Plaintiff is granted, and Amalgamated Bank's Motion to Appoint is denied. Oklahoma Firefighters' request to appoint Bernstein Litowitz as the Lead Counsel is granted. A full-text copy of the Court's Sept. 2, 2022 Opinion & Order is available at https://tinyurl.com/au5h2zvn from Leagle.com. ENVIRONMENTAL AND SAFETY: Faces Bazilio Suit Over Unpaid Overtime ----------------------------------------------------------------- KENNETH BAZILIO, individually and on behalf of all others similarly situated, Plaintiff v. ENVIRONMENTAL AND SAFETY SOLUTIONS, INC., Defendant, Case No. 3:22-cv-03067-SAL (D.S.C., September 12, 2022) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated employees overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act, the South Carolina Payment of Wages Act, and the South Carolina common law. Mr. Bazilio worked for the Defendant as a health and safety specialist from December 2015 until March 2021. Environmental and Safety Solutions, Inc. is a provider of environmental, health, safety, and engineering staffing solutions to businesses throughout the United States, including South Carolina. [BN] The Plaintiff is represented by: T. Christopher Tuck, Esq. T.A.C. Hargrove, II, Esq. ROGERS, PATRICK, WESTBROOK & BRICKMAN, LLC 1037 Chuck Dawley Blvd. Building A Mt. Pleasant, SC 29464 Telephone: (843) 727-6500 Facsimile: (843) 216-6509 E-mail: ctuck@rpwb.com thargrove@rpwb.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com rschreiber@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com EQT CORP: Appeals Class Cert. Ruling in Securities Suit to 3rd Cir. ------------------------------------------------------------------- EQT CORP, et al., are taking an appeal from a court ruling denying their motion to exclude a rebuttal report and testimony of Dr. Steven Feinstein, and granting the Plaintiffs' motion for class certification in In re: EQT Corporation Securities Litigation, Case No. 2-19-cv-00754, in the U.S. District Court for the Western District of Pennsylvania. The Plaintiffs, individually and on behalf of all persons or entities who purchased or otherwise acquired EQT Corporation securities between June 19, 2017 and October 24, 2018, alleged that during the Class Period, the Defendants falsely stated that EQT's acquisition of Rice, a rival gas producer, would yield billions of dollars in synergies based on purported operational benefits. Specifically, on June 19, 2017, the Defendants announced that EQT had entered into an agreement to acquire Rice for $6.7 billion. The Defendants represented that because Rice had an acreage footprint largely contiguous to EQT's existing acreage, the acquisition would allow EQT to achieve "a 50% increase in average lateral [drilling] lengths" (as opposed to more traditional vertical well drilling). EQT claimed that as a result, the merger would result in $2.5 billion in synergies, including $100 million in cost savings in 2018 alone. After the closing in November 2017, the Company continued to tout the "significant operational synergies" of the merger. However, as a result of Defendants' misrepresentations, EQT shares traded at artificially inflated prices throughout the Class Period. On March 15, 2018, just five months after the acquisition closed, EQT announced the sudden and unexpected resignation of its CEO. Then, on October 25, 2018, the Company reported poor third-quarter financial results caused by an increase in total costs, and disclosed that its estimated capital expenditures for well development in 2018 would increase by $300 million. As a result, the Company reduced its full-year forecast for 2018. These disclosures caused EQT shares to decline by 13%, dropping from a close of $40.46 per share on October 24, 2018 to $35.34 on October 25, 2018. On April 2, 2021, the Plaintiffs filed a motion for class certification. On August 13, 2021, the Defendants filed a motion to exclude the rebuttal report and testimony of Dr. Steven Feinstein. On August 11, 2022, Judge Robert J. Colville denied the Defendants' motion to exclude the rebuttal report and testimony of Dr. Steven Feinstein, and granted the Plaintiffs' motion for class certification. The Court ruled that Dr. Feinstein has articulated a common damage methodology in his Report and Rebuttal Report, and the out-of-pocket methodology described by Dr. Feinstein is the type of model that has been accepted by courts as a method of measuring damages in securities fraud actions. Moreover, the Court determined that the Plaintiffs satisfied the superiority and ascertainability requirements for class certification. The appellate case is captioned as In re: EQT Corporation Securities Litigation, Case No. 22-8041, in the United States Court of Appeals for the Third Circuit, filed on August 25, 2022. [BN] Plaintiffs-Respondents GOVERNMENT OF GUAM RETIREMENT FUND, et al., on behalf of themselves and all others similarly situated, are represented by: Stephen D. Bunch, Esq. Daniel S. Sommers, Esq. Susan G. Taylor, Esq. Steven J. Toll, Esq. COHEN MILSTEIN SELLERS & TOLL 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 - and - M. Janet Burkardt, Esq. WEISS BURKARDT KRAMER 445 Fort Pitt Boulevard, Suite 503 Pittsburgh, PA 15219 Telephone: (412) 391-9890 - and - Salvatore J. Graziano, Esq. Jesse L. Jensen, Esq. Brenna D. Nelinson, Esq. Thomas Z. Sperber, Esq. Adam H. Wierzbowski, Esq. Jai K. Chandrasekhar, Esq. Alexander Thomas Payne, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN 1251 Avenue of the Americas, 44th Floor New York, NY 10020 Telephone: (212) 554-1400 - and - Benjamin F. Jackson, Esq. PATTERSON BELKNAP WEBB & TYLER 1133 Avenue of the Americas New York, NY 10036 Telephone: (212) 336-2255 - and - Ji Eun Kim, Esq. COHEN MILSTEIN 88 Pine Street, 14th Floor New York, NY 10005 Telephone: (212) 838-7797 - and - Christina D. Saler, Esq. CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH 361 West Lancaster Avenue One Haverford Centre Haverford, PA 19041 Telephone: (610) 642-8500 Defendants-Petitioners EQT CORP, et al., are represented by: Courtney Carvill, Esq. Daniel Cellucci, Esq. Sandra C. Goldstein, Esq. Jeehyeon Lee, Esq. Sarah Schultes, Esq. Lindsey Weiss Harris, Esq. KIRKLAND & ELLIS 601 Lexington Avenue New York, NY 10022 Telephone: (347) 446-2983 - and - James L. Rockney, Jr., Esq. REED SMITH 225 Fifth Avenue, Suite 1200 Pittsburgh, PA 15222 Telephone: (412) 288-4046 EQUIFAX INC: Rogers Fair Credit Suit Seeks to Appoint Counsel ------------------------------------------------------------- In the class action lawsuit Re: Equifax Fair Credit Reporting Act Litigation, Case No. 1:22-cv-03072-LMM (N.D. Ga.), the Plaintiff Derrick Rogers asks the Court to enter an order appointing his attorneys at Girard Sharp LLP as interim lead or co-lead class counsel, and Skaar & Feagle, LLP as liaison counsel. This consolidated litigation centers on Equifax's misreporting of millions of credit reports to lenders, causing harm to consumers ranging from increased down payments and higher interest rates to a failure to secure financing. Delivering adequate and timely relief to these victims will require experienced, focused leadership in all phases of this class action litigation through trial. Girard Sharp has focused almost exclusively on class actions since its founding in 1995, has consistently prevailed on class certification in similar cases involving harm to millions of consumers, and has recently tried federal cases to verdict, Rogers contends. Equifax Inc. is an American multinational consumer credit reporting agency headquartered in Atlanta, Georgia and is one of the three largest consumer credit reporting agencies, along with Experian and TransUnion. Wikipedia A copy of the Plaintiff's motion dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3DgIhie at no extra charge.[CC] The Plaintiff is represented by: Justin T. Holcombe, Esq. Kris Skaar, Esq. James M. Feagle, Esq. Cliff R. Dorsen, Esq. Chelsea R. Feagle, Esq. SKAAR & FEAGLE, LLP 133 Mirramont Lake Drive Woodstock, GA 30189 Telephone: (770) 427-5600 Facsimile: (404) 601-1855 E-mail: jholcombe@skaarandfeagle.com kskaar@skaarandfeagle.com jfeagle@skaarandfeagle.com cdorsen@skaarandfeagle.com cfeagle@skaarandfeagle.com - and - Dena C. Sharp, Esq. Adam E. Polk, Esq. Jordan Elias, Esq. Mikaela Bock, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dsharp@girardsharp.com apolk@girardsharp.com jelias@girardsharp.com mbock@girardsharp.com EVERYONE'S MD: Faces Greenberg Suit Over Illegal Sales Calls ------------------------------------------------------------ CHARLES GREENBERG, individually and on behalf of all others similarly situated, Plaintiff v. DR. DONALD D. DAVIDSON, INC., d/b/a EVERYONE'S M.D., Defendant, Case No. CACE-22-013105 (Fla. Cir., 17th Judicial, Broward Cty., Sept. 2, 2022) is a class action brought by the Plaintiff under the Florida Telephone Solicitation Act. According to the complaint, the Defendant engages in telephonic sales calls to consumers to promote its goods and services without having secured prior express written consent as required by the FTSA. The Defendant's telephonic sales calls have caused Plaintiff and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy, says the suit. Through this action, Plaintiff seeks an injunction and statutory damages on behalf of himself and the Class members and any other available legal or equitable remedies resulting from the unlawful actions of Defendant, the suit asserts. Dr. Donald D. Davidson, Inc. maintains its primary place of business and headquarters in Las Vegas, Nevada. It directs, markets, and provides business activities throughout the state of Florida.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - 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 EXECUPHARM INC: Third Circuit Vacates Dismissal of Clemens Suit --------------------------------------------------------------- In the case, JENNIFER CLEMENS, Appellant v. EXECUPHARM INC.; PAREXEL INT'L CORP., Case No. 21-1506 (3d Cir.), the U.S. Court of Appeals for the Third Circuit vacates the District Court's dismissal of Clemens' complaint. In this appeal, Jennifer Clemens asks the Panel to reverse the District Court's dismissal of her complaint seeking equitable and monetary relief in connection with a data breach that resulted in the publication of her sensitive personal information on the Dark Web. She argues that her injury was sufficiently imminent to constitute an injury-in-fact for purposes of standing. Ms. Clemens is a former employee of ExecuPharm, a subsidiary of the global biopharmaceutical company Parexel International Corp. As a condition of her employment, Clemens was required to provide ExecuPharm with sensitive personal and financial information, including her address, social security number, bank and financial account numbers, insurance and tax information, her passport, and information relating to her husband and child. In exchange, her employment agreement provided that ExecuPharm would "take appropriate measures to protect the confidentiality and security" of this information. Based on the complaint's allegations, ExecuPharm did not perform its obligation. After Clemens had left ExecuPharm, a hacking group known as CLOP accessed ExecuPharm's servers through a phishing attack in March 2020, stealing sensitive information pertaining to current and former employees, including Clemens. Specifically, the stolen information contained social security numbers, dates of birth, full names, home addresses, taxpayer identification numbers, banking information, credit card numbers, driver's license numbers, sensitive tax forms, and passport numbers. In addition to exfiltrating the data, CLOP installed malware to encrypt the data stored on ExecuPharm's servers. Then, CLOP held the decryption tools for ransom, threatening to release the information if ExecuPharm did not pay the ransom. Either because ExecuPharm refused to pay or for nefarious reasons unknown, the hackers made good on their threat and posted the data on underground websites located on the Dark Web, which is "a portion of the Internet that is intentionally hidden from search engines and requires the use of an anonymizing browser to be accessed. It is most widely used as an underground black market where individuals sell illegal products like sensitive stolen data that can be used to commit identity theft or fraud." Screenshots by an Israel-based intelligence firm confirm that CLOP made available for download at least one archive containing nearly 123,000 files and 162 gigabytes of data pertaining to ExecuPharm and Parexel, including sensitive employee information. Throughout March and April of 2020, ExecuPharm provided periodic updates to current and former employees to inform them of the breach and encourage them to take precautionary measures. It appreciated the risks, cautioning current and former employees that "unauthorized access to the compromised information may potentially lead to the misuse of their personal data to impersonate them and/or to commit, or allow third parties to commit, fraudulent acts such as securing credit in their name." To mitigate potential harm, Clemens took immediate action. She conducted a review of her financial records and credit reports for unauthorized activity; placed fraud alerts on her credit reports; transferred her account to a new bank; enrolled in ExecuPharm's complimentary one-year credit monitoring services; and purchased three-bureau credit monitoring services for herself and her family for $39.99 per month for additional protection. As a result of the breach, she alleges that she has sustained a variety of injuries -- primarily the risk of identity theft and fraud—in addition to the investment of time and money to mitigate potential harm. Seeking redress, Clemens brought suit against ExecuPharm and Parexel in the U.S. District Court for the Eastern District of Pennsylvania. She sought to represent herself and a class of all others whose personal information was compromised, as well as a subclass of current and former ExecuPharm employees whose employment agreements promised that the Company would take appropriate measures to protect their personal data. She invoked the subject matter jurisdiction of the District Court under the Class Action Fairness Act, 28 U.S.C. Section 1332(d). Ms. Clemens asserted claims for negligence (Count I), negligence per se (Count II), and breach of implied contract (Count III) against both Defendants. She also asserted claims for breach of contract (Count IV), breach of fiduciary duty (Count V), and breach of confidence (Count VI) against ExecuPharm. Lastly, she sought a declaratory judgment that the Defendants' existing data security measures fail to comply with their fiduciary duties of care and that instructs them to implement and maintain industry-standard measures. ExecuPharm and Parexel filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). The District Court ordered the parties to submit supplemental briefing regarding Clemens's standing, and, after receiving that briefing, granted the motion to dismiss on Feb. 25, 2021 based on lack of Article III standing. Specifically, the District Court stated that it sought to follow its "bright line" rule providing that allegations of an increased risk of identity theft resulting from a security breach are insufficient for standing. Applying its decision in Reilly v. Ceridian Corp., 664 F.3d 38 (3d Cir. 2011), the District Court concluded that Clemens's risk of future harm was not imminent, but "speculative," because she had not yet experienced actual identity theft or fraud. This conclusion also meant that any money Clemens spent to mitigate the speculative risk was likewise insufficient to confer standing. It additionally held that, even if ExecuPharm breached the employment agreement, it would not have automatically given Clemens standing to assert her breach of contract claim. Ms. Clemens timely appealed and seeks vacatur of the District Court's dismissal of her complaint. She argues that her injury was sufficiently imminent to constitute an injury-in-fact for purposes of standing. The Third Circuit exercises de novo review over the District Court's dismissal of a complaint for lack of subject matter jurisdiction. It opines that Clemens' complaint asserts contract, tort, and secondary contract claims -- each based on the same underlying facts. It says, a plaintiff must demonstrate standing for each claim he seeks to press. Accepting the well-pleaded factual allegations in Clemens' complaint as true, it holds that Clemens has standing to assert her contract, tort, and secondary contract claims. Her alleged injuries are sufficiently imminent and concrete to qualify as injuries-in-fact. Initially, the Third Circuit finds that the District Court erred in dismissing Clemens' contract claims, which are raised in Counts III (breach of implied contract) and IV (breach of contract). These claims arise from her employment agreement with ExecuPharm. As employment agreements have become routine, information security provisions like the one in the instant case have assumed a new prominence. Likewise, the failure to uphold these provisions -- particularly in the digital age -- can yield uniquely drastic consequences. Clemens has alleged facts that establish traceability, at least at the pleading stage. Specifically, she has identified her injuries as "a direct and proximate result of the Defendants' breach" of contract: ExecuPharm's failure to safeguard her information enabled CLOP to publish it on the Dark Web as part of the stolen dataset of ExecuPharm and Parexel employee information. Likewise, Clemens satisfied redressability. The injuries caused by a data breach are "easily and precisely compensable with a monetary award," and Clemens is seeking those damages to compensate for her losses. This traceability and redressability analysis applies with equal force to the tort and secondary contract claims as well. The Third Circuit vacates the District Court's dismissal regarding these claims and remand for a consideration of the merits of these claims. In addition, the District Court erred in dismissing Clemens's tort claims, which are raised in Counts I (negligence) and II (negligence per se). The Third Circuit rules that the tort claims have the same factual genesis as the contract claims: namely, that ExecuPharm breached its duty to adequately safeguard sensitive employee information, which allowed CLOP to steal and misuse the data, and subjected Clemens to a substantial risk of identity theft or fraud. Clemens' alleged risk of identity theft or fraud is sufficiently imminent. Her asserted injury is also concrete, as intangible harms like the disclosure of private information qualify as concrete. Because Clemens has sufficiently asserted her standing to bring her tort claims, the Third Circuit vacates the District Court's dismissal and remand for a consideration of the merits of those claims. Finally, the Third Circuit opines that the District Court erred in dismissing Clemens' secondary contract claims which are raised in Counts V (breach of fiduciary duty) and VI (breach of confidence). It says the breach of the duties underlying these claims and the resulting harm are based on the same facts as the contract and tort claims. As with the prior claims, the District Court identified the failure to allege an imminent injury as fatal to standing. Because it has rejected the contention that a risk of identity theft or fraud cannot qualify as sufficiently imminent, and holds that Clemens has alleged an injury-in-fact, the Third Circuit likewise vacates the District Court's decision and remand for a determination of the merits of these claims. The Third Circuit concludes that Clemens has standing to assert her contract, tort, and secondary contract claims. For all claims, she has alleged a future injury -- the risk of identity theft or fraud -- that is sufficiently imminent. The breach was conducted by a known hacking group CLOP, which intentionally stole the information, held it for ransom, and published it to the Dark Web, thereby making it accessible to criminals worldwide. The nature of the information -- a combination of personal and financial data -- is the type that can be used to perpetrate identity theft or fraud. Given that intangible harms like the publication of personal information can qualify as concrete, and because the Plaintiffs cannot be forced to wait until they have sustained the threatened harm before they can sue, the risk of identity theft or fraud constitutes an injury-in-fact. Accordingly, it vacates the judgment of the District Court on all counts and remand for consideration of the merits. A full-text copy of the Court's Sept. 2, 2022 Opinion is available at https://tinyurl.com/yckdpbjh from Leagle.com. Mark S. Goldman -- goldman@lawgsp.com -- Goldman Scarlato & Penny, 161 Washington Street 8 Tower Bridge, Suite 1025, Conshohocken, PA 19428. J. Austin Moore -- moore@stuevesiegel.com -- [ARGUED] Norman E. Siegel -- siegel@stuevesiegel.com -- Barrett J. Vahle -- Vahle@stuevesiegel.com -- Caleb J. Wagner -- wagner@stuevesiegel.com -- Stueve Siegel Hanson, 460 Nichols Road, Suite 200, Kansas City, MO 64112, Counsel for the Appellant. Shifali Baliga -- shifali.baliga@alston.com -- Kristine M. Brown -- kristy.brown@alston.com -- Donald M. Houser -- donald.houser@alston.com -- [ARGUED] Alston & Bird, 1201 West Peachtree Street One Atlantic Center, Suite 4900, Atlanta, GA 30309. Mathieu Shapiro -- mathieu.shapiro@obermayer.com -- Obermayer Rebmann Maxwell & Hippel, 1500 Market Street Centre Square West, 34th Floor, Philadelphia, PA 19102, Counsel for the Appellees. EZCORP INC: Lopez Sues Over Pawnbrokers' Unpaid Overtime Wages -------------------------------------------------------------- STEPHANIE LOPEZ, individually and on behalf of all other similarly situated persons, Plaintiffs v. EZCORP, INC. and TEXAS EZPAWN, L.P., Defendants, Case No. 1:22-cv-00889 (W.D. Tex., Sept. 2, 2022) is brought by the Plaintiff under the Fair Labor Standards Act seeking to recover Defendants' unpaid overtime compensation. Ms. Lopez worked for EZCorp as a pawnbroker from approximately March 2021 until June 2022. She claims Defendants failed to include bonuses and commissions in the regular rate for the purposes of calculating overtime pay for all hours worked over 40 in a workweek. As a result, Defendants failed to pay her and other pawnbrokers time and one-half the regular rate for all hours worked over 40 in a workweek, says the complaint. EZCorp, Inc. is a provider of pawn services in the United States.[BN] The Plaintiff is represented by: Austin Kaplan, Esq. Trenton Lacy, Esq. KAPLAN LAW FIRM, PLLC 3901 S Lamar Blvd., Suite 260 Austin, TX 78704 Telephone: (512) 553-9390 Facsimile: (512) 692-2788 E-mail: akaplan@kaplanlawatx.com tlacy@kaplanlawatx.com - and - Karen Kithan Yau, Esq. Matt Dunn, Esq. GETMAN, SWEENEY & DUNN, PLLC 260 Fair Street Kingston, NY 12401 Telephone: (845) 255-9370 Facsimile: (845) 255-8649 E-mail: mdunn@getmansweeney.com kyau@getmansweeney.com FAY DA: Angon Seeks Unpaid Overtime Wages for Bakery Employees -------------------------------------------------------------- BERNARDA TORRES ANGON, individually and on behalf of all others similarly situated, Plaintiff v. FAY DA MANUFACTURING CORP., PATISSERIE DE FAY DA, LLC, BOULANGERIE DE FAY DA INC., LE PAIN SUR LE MONDE INC., BRAVURA SKY VIEW CORP., PANARIUM KISSENA INC., PANARIUM INC., LE PETIT PAIN INC., FAY DA ON BROADWAY LLC, FAY DA ROOSEVELT GEN 2 CORP., FAY DA MOTT ST., INC., LA PAN MIETTE INC., BRAVURA PATISSERIE (BELL BLVD) CORP., and CJJ FAY DA GROUP LLC, Defendants, Case No. 526391/2022 (N.Y. Sup. Ct., Kings Cty., September 12, 2022) is a class action against the Defendants for failure to compensate the Plaintiff and similarly situated employees overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was hired as a baker at Fay Da Bakery, located at 259 Meserole St., Brooklyn, New York from 2015 until May 2021. Fay Da Manufacturing Corp. is a bakery owner and operator under the trade name Fay Da Bakery, located at 259 Meserole St., Brooklyn, New York. Patisserie De Fay Da, LLC is a bakery owner and operator under the trade name Fay Da Bakery, located at 107-50 Queens Blvd., Forest Hills, New York. Boulangerie De Fay Da Inc. is a bakery owner and operator under the trade name Fay Da Bakery, located at 136-18 39th Ave., Queens, New York. Le Pain Sur Le Monde Inc. is a bakery owner and operator under the trade name Fay Da Bakery, located at 321 6th Ave., New York, New York. Bravura Sky View Corp. is a bakery owner and operator under the trade name Fay Da Bakery, located at 40-24 College Point Blvd., Flushing, New York. Panarium Kissena Inc. is a bakery owner and operator under the trade name Fay Da Bakery, located at 41-33 Kissena Blvd., Flushing, New York. Panarium Inc. is a bakery owner and operator under the trade name Fay Da Bakery, located at 41-60 Main St., Flushing, New York. Le Petit Pain Inc. is a bakery owner and operator under the trade name Fay Da Bakery, located at 46-15 Kissena Blvd., Flushing, New York. Fay Da On Broadway LLC is a bakery owner and operator under the trade name Fay Da Bakery, located at 61-31 Roosevelt Ave., Woodside, New York. Fay Da Roosevelt Gen 2 Corp. is a bakery owner and operator under the trade name Fay Da Bakery, located at 75-08 Broadway, Elmhurst, New York. Fay Da Mott St., Inc. is a bakery owner and operator under the trade name Fay Da Bakery, located at 83 Mott St., New York, New York. La Pan Miette Inc. is a bakery owner and operator under the trade name Fay Da Bakery, located at 86-12 Justice Ave., Elmhurst, New York. Bravura Patisserie (Bell Blvd) Corp. is a bakery owner and operator under the trade name Fay Da Bakery, located at 259 Meserole St., Brooklyn, New York. CJJ Fay Da Group LLC is a bakery owner and operator under the trade name Fay Da Bakery, located at 350 Trolley Line Blvd., Mashantucket, Connecticut. [BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 FCA US: Court Grants Bid to Dismiss Diaz Suit Without Prejudice --------------------------------------------------------------- In the case, GUSTAVO DIAZ, et al., individually and on behalf of all others similarly situated, Plaintiffs v. FCA US LLC, Defendant, Civil Action No. 21-cv-00906-EJW (D. Del.), Judge Evan J. Wallach of the U.S. District Court for the District of Delaware grants the Defendant's Motion to Dismiss Plaintiffs' Complaint in its entirety without prejudice. The Plaintiffs are residents of California, Florida, and New York, and bring a putative consumer class action on behalf of themselves, a proposed class comprised of "all persons in the United States who purchased or leased 2014-2019 model year Dodge Challengers and Chargers equipped with the V8 engine," and, in the alternative, a number of proposed sub-classes comprised of residents of California, Florida, and New York who purchased or leased a Class Vehicle. Further, the Plaintiffs assert that the Defect exists because the rear differential is not adequately designed and/or manufactured for the torque loads of the engines and transmissions exerted during acceleration. Accordingly, the high torque loads degrade the differential, causing the rear differential and its internal components including, but not limited to, the ring gear, pinion gear, differential housing and/or axles to fail. All named Plaintiffs purchased their Class Vehicles from FCA-authorized dealerships in the state in which they reside. FCA is a Delaware limited liability company with its principal place of business in Michigan. It "designs, manufactures, markets, distributes, services, repairs, sells, and leases passenger vehicles, including the Class Vehicles, nationwide." FCA has a "performance automobile division" called SRT, through which it "designed, manufactured, imported, distributed, offered for sale, sold, and leased" the Class Vehicles. The Plaintiffs allege that they purchased their Class Vehicles as performance vehicles, and have been harmed by the Differential Defect, which causes the Class Vehicles to "not live up to expectations to provide safe, reliable transportation for a normal vehicle, much less the quality necessary for a performance vehicle." There are a number of allegations common to the named Plaintiffs, who reside in California, Florida, and New York. Specifically, all named Plaintiffs allege that they purchased their Class Vehicles "primarily for personal, family, or household use," and that they still own their (allegedly defective) Class Vehicles. "Passenger safety and reliability were important factors" in all named Plaintiffs' purchase decisions. Unbeknownst to the Plaintiffs at the time of purchase, however, each "Class Vehicle was equipped with a rear differential that was defective and not robust enough for the horsepower and torque loads of the driveline." According to them, FCA knew of the Differential Defect at the time of their purchases, but did not disclose it to any of them, which resulted in them making purchases "on the reasonable but mistaken belief that their Class Vehicles would be safe and reliable on public roadways, and capable of track use," which they were not. In addition to information about the Class Vehicles' capabilities that each Plaintiff alleges he obtained or reviewed during the purchase process, the Plaintiffs allege that "FCA also produced and distributed uniform marketing materials about the Class Vehicles to dealerships with the expectation that this information would be passed on to the consumer through dealer interactions." "None of the information provided," however, "disclosed any defects in the rear differential or drivetrain system or that the Class Vehicles were not capable of safe driving on public roadways and track use. If the Plaintiffs had been aware of the Differential Defect, each alleges that "he would not have purchased his Class Vehicle or would have paid less." They claim that, as of the time of their filing this action, they have "received no notification from FCA about any potential repair or aftermarket modification that would repair the Drivetrain or the Differential Defect and render the Class Vehicles safe to drive on public roadways, or during occasional track use, that would also be compliant with FCA's express warranties." Accordingly, because the Plaintiffs aver that "the Differential Defect can cause unexpected failures that significantly impair the safety, reliability, and operability of the Class Vehicles to such an extent that they are rendered unfit for the ordinary purpose of driving on public roadways," they have "lost confidence" in their Class Vehicles, consider themselves "unable to rely on the Defendant's advertising or labeling in the future," and do not plan to purchase Class Vehicles again although they "would like to." The Plaintiffs summarize the injuries suffered by themselves and other putative Class members as follows: As a direct and proximate result of FCA's concealment of, and failure to disclose, the Differential Defect, the Plaintiffs and the Class members: (1) overpaid for the Class Vehicles because the Defect significantly diminishes the value of the Vehicles; (2) have Vehicles that suffer premature differential failures; (3) have and/or must expend significant money to have their Vehicles (inadequately) repaired; and (4) are not able to use their Vehicles for their intended purpose and in the manner FCA advertised. Plaintiffs Diaz, Santos, Sinclair, and Veal allege facts purporting to show the damages they allegedly suffered due to having to repair, or attempt to repair, their Class Vehicles. Plaintiffs Gibson (Florida) and Scorziello (New York) do not allege that they experienced any actual issues driving their Class Vehicles, and do not allege that they sought or obtained any repairs on account of the alleged Defect. Indeed, at Oral Argument, the Plaintiffs' Counsel conceded that the Plaintiffs did not pay for the repairs. As a general matter, the Plaintiffs allege that "costs to repair or replace a rear differential in the Class Vehicles often run thousands of dollars, excluding any other repairs necessary to the other vehicle components that may have been damaged by the defective rear differential." According to them, the "Defendant has not recalled all the Class Vehicles to repair the Differential Defect, has not offered to its customers a free suitable repair or free replacement of parts and has not reimbursed all Class Vehicle owners and leaseholders who incurred costs for repairs related to the Differential Defect." The Plaintiffs filed their putative Class Action Complaint and Jury Demand on June 24, 2021. They primarily seek declaratory relief, injunctive relief, monetary damages, and restitution. They also make allegations in support of class certification, and seek to equitably toll various statutes of limitations on their California state law claims that would otherwise apply. The Plaintiffs' Complaint contains fourteen counts. Counts I, II, and III are brought by all the Plaintiffs "on behalf of the Class, or in the alternative, on behalf of all Sub-Classes against the Defendant." Count I is a common law claim for "fraud by omission or fraudulent concealment." Count II is a common law claim for unjust enrichment. Count III is a federal claim for violation of the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2301 et seq. Counts IV, V, and VII are California state law claims brought by California Plaintiffs Diaz and Santos on behalf of themselves and the California Sub-Class, alleging breach of express warranty (Count IV), implied warranty of merchantability under California's Song-Beverly Consumer Warranty Act (Count V), and violations of California's Unfair Competition Law ("UCL") provisions prohibiting "unfair competition" including fraudulent acts and misleading advertising (Count VII). Relatedly, Plaintiffs Diaz and Santos bring Count VI on behalf of the "CLRA Sub-Class," alleging violations of the California Consumers Legal Remedies Act ("CLRA"). Counts VIII, IX, and X are Florida state law claims brought by Florida Plaintiffs Gibson, Sinclair, and Veal on behalf of themselves and the Florida Sub-Class, alleging breach of express warranty (Count VIII), implied warranty of merchantability (Count IX), and violations of the Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"). Finally, Counts XI, XII, XIII, and XIV are New York state law claims brought by New York Plaintiff Scorziello on behalf of himself and the New York Sub-Class, alleging breach of express warranty (Count XI), implied warranty of merchantability (Count XII), and violations of New York General Business Law ("NYGBL") provisions aimed at protecting against deceptive consumer-oriented practices (Count XIII) and false advertising (Count XIV). By its Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), the Defendant challenges all of the pleaded counts on the basis that the Plaintiffs have "failed to adequately allege cognizable damages." It further seeks to dismiss as time-barred the Counts brought on behalf of California Plaintiffs (Counts I-VII). In addition to its Count-specific arguments that the Plaintiffs have failed to allege facts sufficient to obtain relief on any of their claims, the Defendant further argues that the claims brought on behalf of the putative nationwide Class (Counts I, II, and III) must be dismissed (or stricken) because the Plaintiffs lack standing to sue on behalf of residents of states of which they themselves are not residents. Finally, the Defendant argues that the Plaintiffs cannot obtain injunctive relief in the form of a recall of the Class Vehicles because it is preempted by the exclusive jurisdiction of NHTSA. First, as to jurisdiction, Judge Wallach determines that the Plaintiffs have sufficiently alleged that diversity jurisdiction exists under the Class Action Fairness Act of 2005. Accordingly, his assessment of its own jurisdiction primarily concerns the Plaintiffs' Article III standing for the various claims they bring, and the types of relief they seek. Judge Wallach concludes that the Plaintiffs have established Article III standing as to all their claims that seek (1) damages, (2) injunctive relief, and (3) declaratory relief arising under two theories of economic injury. He concludes, however, that the Plaintiffs do not have standing to seek restitution, and thus their potential recovery under Counts I and II (common law claims for fraud and unjust enrichment) is limited in that regard, while Count VII (seeking restitution under California's UCL, which does not allow for other types of monetary recovery) is dismissed in its entirety, without prejudice, for lack of standing. Judge Wallach further determines that the Plaintiffs' established standing permits them to bring claims on behalf of the proposed state-based sub-classes, as well as the California-specific CLRA Sub-Class. The Plaintiffs lack standing, however, to bring claims under the laws of states in which they do not reside, and in which none of their injuries are alleged to have taken place. Therefore, Counts I, II, and III (common law claims and a federal claim that depends on the viability of accompanying state law warranty claims) are dismissed, without prejudice, as to the proposed "nationwide" Class. Second, Judge Wallach opines that the named Plaintiffs have established individual standing to bring claims for damages, injunctive, and declaratory relief against FCA based on their allegations of economic injury, under both the "benefit of the bargain" and "premium price" theories. He says, the Plaintiffs have sufficiently alleged that they have suffered or will imminently suffer economic injury caused by FCA's actions, and that such injury is likely to recur in future. Because each of their claims -- with the exception of Counts I and II (in part) and Count VII -- seek those types of relief and are linked to one or both of the two established theories, Judge Wallach proceeds to evaluate the merits of those claims. He determines, however, that the Plaintiffs lack standing to seek restitution because they relied on conclusory statements rather than well-pleaded facts. Accordingly, they cannot seek restitution under Counts I and II, and he dismisses Count VII in its entirety without prejudice brought by Plaintiffs Diaz and Santos on behalf of themselves and the California Sub-Class. Third, Judge Wallach dismisses, without prejudice, Counts I, II, and III of the Complaint, to the extent that they are brought on behalf of a proposed nationwide Class of individuals residing in states other than those in which named Plaintiffs reside. He says, the Plaintiffs do not allege or argue that they have suffered injuries in states other than those in which they reside -- i.e., California, Florida, and New York. It stands to reason, therefore, that Plaintiff Diaz, a resident of California, would not have standing to bring a claim for unjust enrichment under the laws of Oklahoma or Virginia. Yet, by bringing common law claims "on behalf of all persons in the United States who purchased or leased Class Vehicles," the Plaintiffs necessarily ask the court to permit such claims to proceed. They could have joined, as named plaintiffs, individuals residing in all fifty states, but they chose to limit themselves to three states. Finally, FCA moves to dismiss all of the Plaintiffs' claims under Rule 12(b)(6). As a threshold matter, Judge Wallach distinguishes between the applicable pleading standards that govern the Plaintiffs' claims. Their surviving claims can be divided into two categories: Those that are grounded in fraud, and those that are grounded in contract. As to the fraud-based claims, Counts I, II, VI, X, XIII, and XIV, Judge Wallach dismisses all on the basis that the Plaintiffs have failed to allege any actionable omission, concealment, or misrepresentation by FCA as to the Differential Defect. As to the contract-based claims, he dismisses Counts IV, VIII, and XI for failure to allege a breach of FCA's Basic Limited Warranty, dismisses Count V as time-barred, and dismisses Counts IX and XII for lack of privity. Because Count III depends on the viability of the Plaintiffs' state law warranty claims, all of which are dismissed, Count III is likewise dismissed. Among other things, Judge Wallach opines that (i) because the Plaintiffs have represented that the circumstances leading to FCA's unjustly obtained profits are fraudulent in nature, their allegations showing those circumstances must be pleaded with particularity; (ii) FCA "failed to disclose and concealed" the Differential Defect, falsely represented characteristics of the Class Vehicles while knowing of the Defect, and induced Plaintiffs' reliance on these misrepresentations and omissions; (iii) the Plaintiffs have failed to establish that FCA had pre-sale knowledge of the Differential Defect, such that their theory of fraud by omission could succeed; (iv) the Plaintiffs have not sufficiently alleged that FCA knew of the Defect at any time, such that their claims based on active concealment or affirmative misrepresentation could succeed; (v) because there are no facts in the Complaint to support application of Florida's third-party beneficiary exception, the Florida Plaintiffs have failed to successfully allege any exception to the vertical privity requirement, and their claims for breach of the implied warranty of merchantability must fail. For the foregoing reasons, Judge Wallach dismisses the Plaintiffs' Complaint in its entirety without prejudice. Because no claims presently survive on which relief could be granted, he does not reach the Defendant's additional arguments regarding the applicability of the doctrine of economic loss, the adequacy of remedies at law obviating the need for remedies at equity, or the potential federal preemption of a court-ordered recall of the Class Vehicles. The Plaintiffs have 30 days from the date of this Memorandum Opinion to file a motion for leave to amend their Complaint. In the absence of such a motion, the dismissal without prejudice will convert to a dismissal with prejudice. A full-text copy of the Court's Sept. 2, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yvex7p2t from Leagle.com. Russell D. Paul -- rpaul@bm.net -- Abigail J. Gertner -- agertner@bm.net -- Amey J. Park -- apark@bm.net -- BERGER MONTAGUE PC, Philadelphia, PA; Cody R. Padgett, Laura E. Goolsby, Tarek H. Zohdy, CAPSTONE LAW APC, Los Angeles, CA; Steven Calamusa, Geoff Stahl, GORDON & PARTNERS, Palm Beach Gardens, FL - Attorneys for the Plaintiffs. Patrick Brannigan -- pbrannigan@eckertseamans.com -- ECKERT SEAMANS CHERIN & MELLOTT LLC, Wilmington, DE; Stephen A. D'Aunoy -- sdaunoy@thompsoncoburn.com -- Thomas L. Azar -- tazar@thompsoncoburn.com -- Scott H. Morgan -- smorgan@thompsoncoburn.com -- THOMPSON COBURN LLP, St. Louis, MO - Attorneys for the Defendant. FLORIDA: Federal Judge Denies Certification in Prison Class Suit ---------------------------------------------------------------- cltampa.com reports that a federal judge has denied a request to certify a class action in a lawsuit against the Florida Department of Corrections over the use of solitary confinement in prisons. U.S. District Judge Allen Winsor on Monday issued a 22-page ruling rejecting requests by plaintiffs to turn the case into a class action on behalf of a wide range of inmates. Winsor said the plaintiffs had not met legal tests, including not providing specific details about relief they sought. "Plaintiffs' inability to specify the injunctive relief sought necessarily means they have not shown a single injunction would benefit all class (or subclass) members. . . . And Plaintiffs cannot sidestep this rule by requesting an injunction so broad that it technically covers the entire class but that would compel different conduct as to each class member," Winsor wrote. He also said the plaintiffs had not shown "commonality" in their claims. "The problem is that plaintiffs have not presented evidence that all (or even most) class members face the same conditions or combination of interrelated conditions," Winsor wrote. Attorneys from Florida Legal Services, the Florida Justice Institute and the Southern Poverty Law Center filed the lawsuit in 2019, alleging the Department of Corrections' use of solitary confinement violates the constitutional rights of inmates, including inmates with disabilities. While Winsor denied class certification, the underlying lawsuit remains pending. [GN] FLUKE CORP: Fails to Pay Proper Overtime Wages, Bond Suit Says -------------------------------------------------------------- PAMELA BOND, individually and on behalf of all others similarly situated Plaintiff v. FLUKE CORPORATION and FLUKE MANUFACTURING CORPORATION, Defendants, Case No. 2:22-cv-01241 (W.D. Wash., Sept. 2, 2022) seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act and the Washington Minimum Wage Act and its implementing regulations. Ms. Bond was employed by the Defendant as a buyer from 1982 to March 2022 in a manufacturing facility in Everett, Washington. She alleges that Defendants paid her and the Class Members a salary with no overtime premium for hours worked in excess of 40 in a workweek. Fluke Corp. produces electronic test and measurement instruments and systems.[BN] The Plaintiff is represented by: Nicholas D. Kovarik, Esq. PISKEL YAHNE KOVARIK, PLLC 522 W. Riverside Ave. Ste. 700 Spokane, WA 99201 Telephone: (509) 321-5930 Facsimile: (509) 321-5935 E-mail: nick@pyklawyers.com - and - Richard J. (Rex) Burch, Esq. David. I. Moulton, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com dmoulton@brucknerburch.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Ste. 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com FORCE PRESSURE: Cale Sues Over Failure to Pay Proper OT Wages ------------------------------------------------------------- BAILEY CALE, individually and on behalf of all others similarly situated, Plaintiff v. Force Pressure Control, LLC, Defendant, Case No. 7:22-cv-00187-DC-RCG (W.D. Tex., Sept. 2, 2022) seeks a declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and a reasonable attorney's fee and costs as a result of Defendant's failure to pay proper overtime compensation under the Fair Labor Standards Act. The Plaintiff was employed by the Defendant from December of 2021 until July of 2022 as a senior operator. The Plaintiff was required to drive from his home in Waco to Defendant's job sites in places such as Artesia, New Mexico; Laredo, Texas; Karnes City, Texas; and Pecos, Texas. At all relevant times herein, Defendant has deprived Plaintiff and other traveling employees of overtime compensation for all of the hours worked over 40 per week, asserts the complaint. Force Pressure Control, LLC offers surface pressure control solutions in the oilfield services market.[BN] The Plaintiff is represented by: Lydia H. Hamlet, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: lydia@sanfordlawfirm.com josh@sanfordlawfirm.com FORD MOTOR: Faces Beck Suit Over Vehicles' Weak Roof Structure -------------------------------------------------------------- STEVEN BECK, individually and on behalf of all others similarly situated, Plaintiff v. FORD MOTOR COMPANY, a Delaware Limited Liability Company, Defendant, Case No. 2:22-cv-12079-PDB-DRG (E.D. Mich., Sept. 2, 2022) is a class action brought by the Plaintiff seeking damages and a repair under the Magnuson-Moss Warranty Act, state consumer protection acts, state implied warranty acts, and for unjust enrichment at common law due to Defendant's misconduct of selling Super-Duty pick-up trucks with defective design. According to the complaint, Ford Motor breached fundamental duties by selling Ford Super-Duty pick-up trucks that Ford knew had a dangerously weak roof structure that would collapse in the event of a roll-over accident, gravely injuring or killing vehicle occupants. Though Ford knew of the roof crush risk prior to selling the Super-Duty pick-up trucks at issue, it did nothing to promptly warn owners and lessees, instead entering into secret settlements with crash victims to hide the deadly nature of its roof design defect, says the suit. Plaintiff and proposed class representative Steven Beck is a resident and citizen of Paso Robles, California. On June 1, 2015, the Plaintiff purchased a new Ford F-350 Super-Duty from South Bay Ford in Hawthorne, California. Plaintiff's Ford F-350 Super-Duty vehicle suffers from the roof-crush defect. Ford Motor Company is an American multinational automobile manufacturer headquartered in Dearborn, Michigan.[BN] The Plaintiff is represented by: Steve W. Berman, Esq. Thomas E. Loeser, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com toml@hbsslaw.com - and - E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Dennis A. Lienhardt, Esq. THE MILLER LAW FIRM PC 950 W. University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841-2200 E-mail: epm@millerlawpc.com ssa@millerlawpc.com dal@millerlawpc.com FORD MOTOR: Simmons Loses Bid for Reconsideration of March 21 Order ------------------------------------------------------------------- In the class action lawsuit captioned as CLARENCE SIMMONS, et al., v. FORD MOTOR COMPANY, Case No. 9:18-cv-81558-RAR (S.D. Fla.), the Hon. Judge Rodolfo A. Ruiz II entered an order denying the Plaintiffs' motion for reconsideration of the Court's March 21, 2022 denying Plaintiffs' Motion for Class Certification. In their Motion, the Plaintiffs assert that "the Court committed manifest or clear error on issues of standing, ascertainability, predominance, damages, and superiority." The source of this error, the Plaintiffs contend, is two-fold: (1) the Court "misapprehended" Ford's hem design; and (2) "the Court did not address whether the existence of this design defect at the time of sale could be resolved by common proof." In sum, Plaintiffs have not identified any clear errors in the Court's Order. Nor have they presented any new evidence warranting reconsideration, the Court says. Ford Motor is an American multinational automobile manufacturer headquartered in Dearborn, Michigan, United States. A copy of the Court's order dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3DerU5C at no extra charge.[CC] FUTURE MOTION: Sued Over Defective Electronic Skateboards --------------------------------------------------------- Jessica A. York at santacruzsentinel.com reports that the Santa Cruz-based creator of the motorized Onewheel board is facing a new federal class-action lawsuit related to what three plaintiffs refer to as the equipment's alleged dangerous sudden stop and "nose-dive" defect. Attorneys for Raymond Wang, of San Mateo, Devon Holt, of La Mesa, and Jerrod Hunter Nichols, of Edgewater, Florida, filed the suit Sept. 9 in U.S. District Court, Northern District in San Jose. The plaintiffs are seeking an undetermined amount of damages, as decided by jury trial. The complaint details the plaintiffs' injuries, including being thrown into the street and experiencing scrapes, bruising, a separated shoulder AC joint and a broken arm. "In the course of Defendant's business, it willfully failed to disclose and actively concealed that the Onewheel electronic skateboard is prone to sudden stopping or nose-diving, which can cause the rider to be catapulted into the air without warning," the plaintiffs' filing states. "Particularly in light of Defendant's advertising campaign, a reasonable American consumer would expect the Onewheel electronic skateboard to function smoothly and safely, without a Nose-Dive Defect." The Onewheel is a self-balancing electronic board with a single large center wheel encasing a battery-powered hub. Onewheel manufacturer Future Motion Inc., led by CEO Kyle Doerksen, relocated to Santa Cruz's Westside industrial area from Mountain View in 2015. Future Motion, now employing about 50 people at its Shaffer Road headquarters, offers several Onewheel models ranging in cost from $1,050 for its most compact "pint" model to the full-sized $2,200 GT model. The boards also range in distance from 6 to 32 battery-powered miles, depending on the model, according to the company's website. As described on Future Motion's website, Onewheel's models include a "pushback" feature, a warning that causes the nose of the board to lift and slow the rider down by leaning backward. Situations where the feature is engaged can occur when riders attempt to go too fast, descend a very steep hill or ride with a low battery. The "push back" feature can be overridden by users at their own risk and is a function that is defined by a number of parameters including but not limited to battery percentage, grade of terrain, speed, tire pressure and rider weight, according to a Onewheel tutorial. The latest lawsuit is not the first the company has faced since its 2013 founding, Doerksen said. He added that it was "interesting and exciting being an innovator and bringing this new sport into the world." "We have not had a judgment against us in any case," Doerksen told the Sentinel. "We are creating a new board sport here in Santa Cruz and unfortunately, in any board sport, people can fall off and they can get hurt. Because it's new, people are trying to figure out what is their responsibility and what the product is supposed to be able to do." As to the class action lawsuit, Doerksen said he did not expect it to gain traction. "We're still reviewing and investigating the case but we don't believe that it has any merit," Doerksen said. "We anticipate bringing a motion to dismiss the case and expect to prevail on the motion, or at trial." [GN] GEICO CASUALTY: Continuance to Hold in Abeyance Any Orders Sought ----------------------------------------------------------------- In the class action lawsuit captioned as CARLA WRIGHT, Individually and on behalf of others similarly situated, v. GEICO CASUALTY COMPANY, Case No. 3:20-cv-00823-BAJ-SDJ (M.D. La.), the Parties file a joint motion requesting that the Court continue to hold in abeyance any orders on the Plaintiff's Motion for Class Certification until September 30, 2022, as the Parties continue to engage in substantive settlement negotiations. On December 12, 2021, Ms. Wright filed a Motion for Class Certification, which was fully briefed on April 1, 2022. On July 14, 2022, the parties filed a Joint Motion to Hold Class Certification Order in Abeyance requesting that the Court hold any orders on Plaintiff's Motion for Class Certification in abeyance until at least August 31, 2022, to allow the parties to engage in settlement discussions. The Court granted the Parties' motion. The Parties continue to engage in substantive settlement discussions. The Parties respectfully request that any ruling on Plaintiff's Motion for Class Certification continue to be held in abeyance until September 30, 2022, to allow the parties to continue to explore settlement negotiations. The issuance of a class certification order in this case would likely impede settlement. GEICO operates as an insurance company. A copy of the Court's order dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3QEuG77 at no extra charge.[CC] The Plaintiff is represented by: Amy L. Judkins, Esq. Edmund A. Normand, Esq. NORMAND PLLC 3165 McCrory Place, Suite 175 Orlando, FL 32803 Telephone: 407 603-6031 Facsimile: (888) 974-2175 E-mail: ed@ednormand.com amy.judkins@normandpllc.com ean@normandpllc.com - and - Christopher B. Hall, Esq. HALL & LAMPROS, LLP 400 Galleria Parkway, Suite 1150 Atlanta, GA 30339 Telephone: (404) 876-8100 Facsimile: (404) 876-3477 E-mail: chall@hallandlampros.com The Defendant is represented by Kymberly Kochis, Esq. Alexander P. Fuchs, Esq. EVERSHEDS SUTHERLAND (US) LLP 1114 Avenue of the Americas The Grace Building, 40th Floor New York, NY 10036 Telephone: (212) 389-5068 Facsimile: (212) 389-5099 E-mail: kymkochis@eversheds-sutherland.com alexfuchs@eversheds-sutherland.com - and - Stephen R. Barry, Esq. Daphne P. McNutt, Esq. W. Briggs Scott, Esq. BARRY & CO., LLC 612 Gravier Street New Orleans, LA 70130 Telephone: (504) 525-1101 Facsimile: (504) 525-1909 E-mail: sbarry@barrylawco.com dmcnutt@barrylawco.com bscott@barrylawco.com GEICO CHOICE: Jones Appeals Insurance Suit Dismissal to 3rd Cir. ---------------------------------------------------------------- ISIAH JONES, III, et al., are taking an appeal from a court order dismissing their lawsuit entitled Isiah Jones, III, et al., Plaintiffs, v. Geico Choice Insurance Co., et al., Defendants, Case No. 2-22-cv-00558, in the U.S. District Court for the Eastern District of Pennsylvania. Plaintiffs Isiah A. Jones, III and Michael Purcell, Jr. filed separate complaints against Defendants Geico Choice Insurance Co. and Geico Casualty Co., Case Nos. 2-22-cv-00558 and 2-22-cv-00825, on February 11, 2022 and March 4, 2022, respectively, for allegedly offering illusory automobile insurance coverage under a single-vehicle policy. The Plaintiffs brought claims for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, unjust enrichment, fraud, return of premiums, declaratory relief, and injunctive relief. On March 2, 2022, and March 24, 2022, Defendants Geico Choice Insurance Co. and Geico Casualty Co. filed a motion to dismiss Plaintiffs Jones and Purcell's complaints, respectively, for failure to state a claim. On May 20, 2022, the Court ordered the consolidation of Case No. 2-22-cv-00825 to Case No. 2-22-cv-00558. On July 27, 2022, the Court granted the Defendants' motion to dismiss through an Order entered by District Judge Gene E.K. Pratter. The Court dismissed the case without prejudice and ruled that the coverage was not illusory. Under Pennsylvania law, said the Court, the insurer must both provide stacking and the chance to waive that stacking coverage, even on single-vehicle policies. On August 4, 2022, the Plaintiffs appealed the district court's decision to the United States Court of Appeals for the Third Circuit under Case No. 22-2414. On August 15, 2022, District Judge Gene E.K. Pratter ordered the dismissal of the Plaintiffs' complaints with prejudice, and directed the clerk of court to close the case. The appellate case is captioned as Isiah Jones, III, et al. v. Geico Choice Insurance Co., et al., Case No. 22-2538, in the United States Court of Appeals for the Third Circuit, filed on August 25, 2022. [BN] Plaintiffs-Appellants ISIAH A. JONES, III, et al., on behalf of themselves and all others similarly situated, are represented by: Scott B. Cooper, Esq. SCHMIDT KRAMER 209 State Street Harrisburg, PA 17101 Telephone: (717) 232-6300 - and - Jack Goodrich, Esq. GOODRICH & ASSOCIATES 429 Fourth Avenue, Suite 900 Pittsburgh, PA 15219 Telephone: (412) 261-4663 - and - James C. Haggerty, Esq. HAGGERTY GOLDBERG SCHLEIFER & KUPERSMITH 1801 Market Street, Suite 100 Philadelphia, PA 19103 Telephone: (267) 350-6633 - and - Jonathan Shub, Esq. SHUB LAW 134 Kings Highway East, 2nd Floor Haddonfield, NJ 08033 Telephone: (856) 772-7200 Defendants-Appellees GEICO CHOICE INSURANCE CO., et al., are represented by: Kymberly Kochis, Esq. EVERSHEDS SUTHERLAND 1114 Avenue of the Americas The Grace Building, 40th Floor New York, NY 10036 Telephone: (212) 389-5000 - and - Zachariah W. Lindsey, Esq. EVERSHEDS SUTHERLAND 700 Sixth Street, N.W., Suite 700 Washington, DC 20001 Telephone: (202) 383-0292 GEICO CHOICE: Purcell Appeals Insurance Suit Dismissal to 3rd Cir. ------------------------------------------------------------------ MICHAEL PURCELL, Jr., et al., are taking an appeal from a court ruling dismissing their lawsuit entitled Isiah Jones, III, et al., Plaintiffs, v. Geico Choice Insurance Co., et al., Defendants, Case No. 2-22-cv-00558, in the U.S. District Court for the Eastern District of Pennsylvania. On March 4, 2022, Michael Purcell, Jr., individually and on behalf of all others similarly situated, filed a class action suit against Geico Casualty Co. captioned as Michael Purcell, Jr., Plaintiff, v. Geico Casualty Co., Defendant, Case No. 2-22-cv-00825, for allegedly offering illusory automobile insurance coverage under a single-vehicle policy. The Plaintiff brought claims for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, unjust enrichment, fraud, return of premiums, declaratory relief, and injunctive relief. On March 24, 2022, Geico Casualty Co. filed a motion to dismiss Purcell's complaint for failure to state a claim. On May 20, 2022, the Court ordered the consolidation of Case No. 2-22-cv-00825 to another lawsuit captioned as Isiah A. Jones, III, Plaintiff, v. Geico Choice Insurance Co., Defendant, Case No. 2-22-cv-00558. On July 27, 2022, the Court granted the Defendants' motion to dismiss through an Order entered by District Judge Gene E.K. Pratter. The Court dismissed the case without prejudice and ruled that the coverage was not illusory. Under Pennsylvania law, the insurer must both provide stacking and the chance to waive that stacking coverage, even on single-vehicle policies. On August 4, 2022, Purcell appealed the district court's decision to the United States Court of Appeals for the Third Circuit and was assigned Case No. 22-2415. On August 15, 2022, Judge Pratter ordered the dismissal of the Plaintiffs' complaints with prejudice, and directed the clerk of court to close the case. The appellate case is captioned as Michael Purcell, Jr., et al. v. Geico Choice Insurance Co., et al., Case No. 22-2557, in the United States Court of Appeals for the Third Circuit, filed on August 25, 2022. [BN] Plaintiffs-Appellants MICHAEL PURCELL, JR., et al., individually and on behalf of all others similarly situated, are represented by: Scott B. Cooper, Esq. SCHMIDT KRAMER 209 State Street Harrisburg, PA 17101 Telephone: (717) 232-6300 - and - Jack Goodrich, Esq. GOODRICH & ASSOCIATES 429 Fourth Avenue, Suite 900 Pittsburgh, PA 15219 Telephone: (412) 261-4663 - and - James C. Haggerty, Esq. HAGGERTY GOLDBERG SCHLEIFER & KUPERSMITH 1801 Market Street, Suite 100 Philadelphia, PA 19103 Telephone: (267) 350-6633 - and - Jonathan Shub, Esq. SHUB LAW 134 Kings Highway East, 2nd Floor Haddonfield, NJ 08033 Telephone: (856) 772-7200 Defendants-Appellees GEICO CHOICE INSURANCE CO., et al., are represented by: Kymberly Kochis, Esq. EVERSHEDS SUTHERLAND 1114 Avenue of the Americas The Grace Building, 40th Floor New York, NY 10036 Telephone: (212) 389-5000 - and - Zachariah W. Lindsey, Esq. EVERSHEDS SUTHERLAND 700 Sixth Street, N.W., Suite 700 Washington, DC 20001 Telephone: (202) 383-0292 GENERAL MOTORS: Bid to Stay Response Brief Granted in Counts Suit ----------------------------------------------------------------- In the class action lawsuit captioned as JASON COUNTS et al., v. GENERAL MOTORS, LLC and ROBERT BOSCH LLC,, Case No. 1:16-cv-12541-TLL-PTM (E.D. Mich.), the Hon. Judge Thomas L. Ludington entered an order granting the Defendants' motion to stay response brief to plaintiffs' motion for class certification. The Defendants' responses to Plaintiffs' Motion for Class Certification, are due 30 days after this Court resolves the issues raised in its August 11, 2022, Order Directing Parties To Show Cause Why Remaining Claims Should Not Be Dismissed Under Forum Non Conveniens. The Plaintiffs' replies shall be due 35 days after Defendants' responses, the Court says. General Motors Company is an American multinational automotive manufacturing company headquartered in Detroit, Michigan, United States. A copy of the Court's order dated Aug. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3eC4uwX at no extra charge.[CC] GENERAL MOTORS: Napoli-Bosse Appeals Summary Judgment Ruling ------------------------------------------------------------ MARLAINA A. NAPOLI-BOSSE, et al., are taking an appeal from a summary judgment ruling in their lawsuit entitled Marlaina A. Napoli-Bosse, et al., Plaintiffs, v. General Motors LLC, Defendant, Case No. 3:18-cv-01720, in the U.S. District Court for the District of Connecticut. Marlaina Napoli-Bosse, a resident of Connecticut, filed a complaint against the Defendant for breach of contract alleging that it breached its promises to address a problem with the shifter of her leased 2017 GMC Acadia that prevented her from reliably being able to turn off the vehicle. Napoli-Bosse, along with three other out-of-state plaintiffs, filed the operative complaint in this case on January 11, 2019, raising claims of breach of contract, breach of express warranty under Connecticut law, and breach of warranty under the Magnuson Moss Warranty Act (MMWA). After General Motors moved to dismiss, the Court dismissed the claims of the three out-of-state plaintiffs for lack of personal jurisdiction and dismissed the breach of express warranty and MWWA claims under Fed. R. Civ. P. 12(b)(6) but determined that Napoli-Bosse could proceed with her breach of contract claim. The parties cross-moved for summary judgment on the breach of contract claim, and the Court held oral argument on August 19, 2022 on the motions and on the Plaintiff's motion for class certification. On August 22, 2022, the Court granted the Defendant's motion for summary judgment and denied Napoli-Bosse's motion for summary judgment. District Judge Michael P. Shea ruled in favor of the Defendant because Napoli-Bosse has not demonstrated the existence of contractual privity between herself and General Motors and because her third-party beneficiary theory fails. The appellate case is captioned as Napoli-Bosse v. General Motors LLC, Case No. 22-1861, in the United States Court of Appeals for the Second Circuit, filed on August 25, 2022. [BN] Plaintiffs-Appellants MARLAINA A. NAPOLI-BOSSE, et al., individually and on behalf of all others similarly situated, are represented by: Sergei Lemberg, Esq. LEMBERG LAW, LLC 43 Danbury Road Wilton, CT 06897 Telephone: (203) 653-2250 Defendant-Appellee GENERAL MOTORS LLC is represented by: James C. McGrath, Esq. SEYFARTH SHAW LLP Seaport East, Two Seaport Lane Boston, MA 02210 Telephone: (617) 946-4918 GOOGLE LLC: $100M Deal in Privacy Class Action Wins Final OK ------------------------------------------------------------ Dan Avery at cnet.com reports that a class action lawsuit claiming Google illicitly uses a facial-recognition program to sort pictures in Google Photos resulted in the search giant agreeing to a $100 million settlement this spring. Individuals whose likenesses appeared in a Google Photos album could be eligible for a chunk of the payout -- but there are less than two weeks left before the deadline. Plaintiffs in Rivera, et al. v. Google argue that Google Photos collects, stores and organizes pictures of residents as part of its Face Grouping feature "without proper notice and consent," a violation of Illinois' Biometric Information Privacy Act. The 2008 state law requires companies that use facial recognition programs, fingerprint scans and other biometric tools on Illinois residents to get informed consent. Google, which has denied any wrongdoing, agreed to the multi-million-dollar payout in May. Eligible residents could get as much as $400, according to the plaintiffs' attorneys, but the last day to file a claim is Sept. 24. Four days later, a final court hearing will determine whether the settlement and associated legal fees are "fair, reasonable, and adequate" before any payments are issued. Here's what you need to know about the Google Photo biometric privacy case, including who's eligible for a payment, how much they could receive and when they might receive your money. For more on class-action settlements, find out if you're eligible for money from Capital One's $190 million payout, SnapChat's $35 million biometric-data case or T-Mobile's $350 million data-breach settlement. What is Google accused of in the privacy case? Google Photos' Face Grouping tool lets users organize images of the same person via facial recognition algorithms. But the Illinois Biometric Information Privacy Act, or BIPA, requires companies that collect and store biometric data from Illinois residents, including distinctive details about a person's face, to receive a written release. They must also inform users of the specific purpose the data will serve, how long it'll be stored and when it'll be permanently destroyed, among other stipulations. According to the lawsuit, Google failed to fulfill any of the BIPA requirements when it stored biometric identifiers from the faces of people in pictures housed in Photos. In a statement to CNET, Google spokesperson José Castañeda said the Face Grouping feature "is only visible to you and you can easily turn off this functionality if you choose." Google, which has agreed to make changes to how it collects biometric data, is just the latest company to come up against the Illinois law. In 2021, TikTok settled a BIPA suit for $92 million, while Facebook is shelling out $650 million over allegations that its photo-tagging feature violated the statute. Just this month, Snapchat's parent company, Snap Inc., agreed to a $35 million settlement to resolve BIPA claims. Who's eligible for a payment in the Google Photos biometric privacy settlement? Class members must have resided in Illinois between May 1, 2015, and April 25, 2022, and appeared in a photograph stored on Google Photos in that time frame. There are approximately 1.4 million Illinois residents eligible to file a claim, according to SEOHost.net, an SEO hosting provider. What's the deadline to submit a claim? Valid claims can be submitted through Sept. 24. The deadline to opt out of or object to the settlement was Aug. 10. How much money could I get from the Google settlement? Eligible applicants will receive an equal portion of the $100 million settlement fund after the court awards legal fees and other expenses, which could be as much as 40% of the total. The actual cash amount will depend on the number of valid claims submitted. According to the plaintiffs' attorneys, based on similar cases, individual claims could be between $200 and $400. How do I submit a claim for the Google privacy settlement? Claims can be submitted online or with this mail-in form. You must include your name and current or previous Illinois address and you must confirm you appeared in a photo stored on Google Photo between May 1, 2015, and April 24, 2022. When would I get my payment? A final approval hearing for the settlement is scheduled for Sept. 28, 2022. Class members should receive their payments within 90 days of the final approval being granted and any appeals being addressed. "It is always uncertain whether and when appeals can be resolved, and resolving them can take time," according to the settlement website. "No benefits will be provided until the Court has approved the settlement and any appeals have been resolved." Class members have a choice of receiving their payment via Venmo, Zelle, Paypal, prepaid digital Mastercard or physical check. [GN] GRAYSON COUNTY, KY: Thomas Files Bid for Class Certification ------------------------------------------------------------ In the class action lawsuit captioned as Dontrae Thomas v. Grayson County, et al., v. County Kentucky et al., Case No. 4:22-cv-00100-JHM (W.D. Ky.), the Plaintiff files motion for class certification. The Plaintiff defined the class members as inmate who is either currently, or was previously housed at the Grayson County Detention Center who has had money taken from them as a result of a so called "group deduction" for restitution for damaged property without having been found guilty of a violation of the jail rules and without evidence of wrongdoing on the individual inmates behalf, and or any time currently housed at the Grayson County Detention Center who has been denied the right to receive adequate legal reference material in the mail." The lawsuit alleges that the practices of officials at the Grayson County Detention Center has resulted in the unconstitutional taking of thousands of dollars from the accounts of hundreds of inmates and that they have implemented a policy that prohibits inmates from receiving legal reference material that is not available to them at the facility. The Grayson County Detention Center is medium prison office in the Grayson County. A copy of the Plaintiff's motion to certify class dated Sept. 1, 2022 is available from PacerMonitor.com at https://bit.ly/3qzZ5ZO at no extra charge.[CC] HCA HEALTHCARE: Motion to Dismiss Filed in Monopoly Class Action ---------------------------------------------------------------- Andrew James at wlos.com reports that attorneys for HCA Healthcare have filed a motion to dismiss a class action antitrust lawsuit against the hospital system. That lawsuit was originally filed by the city of Brevard, with the city of Asheville, Buncombe County and Madison County filing companion cases. Asheville and Buncombe County's complaint alleges an "extensive pattern of alleged behavior by HCA intended to monopolize health care markets in Western North Carolina, the result of which is artificially high prices for health care services and a reduced standard of care." "This is an anti-trust case alleging monopolistic behavior by a hospital, which even increases the complexity on top of a normal anti-trust case," said Barak Richman, professor of law and business administration at Duke University. Richman said this type of lawsuit with several local governments against a hospital is unusual, but believes it could become more common. "I think it takes a lot of guts for county leaders and municipal leaders to take this on, this is hard," he said. In the motion to dismiss, HCA Healthcare calls the lawsuit "baseless." "First, Plaintiffs' Section 2 Monopolization claim should be dismissed because Plaintiffs fail to plead facts demonstrating that Mission unlawfully obtained or maintained monopoly power over GAC or outpatient services in any market," the lawsuit said. "Second, the case should be dismissed because the Complaint fails to allege facts showing that Mission engaged in the anticompetitive conduct that forms the basis of Plaintiffs' Section 2 Monopolization and Section 1 Restraint of Trade claims," the lawsuit continues, "Third, Plaintiffs' Section 1 Restraint of Trade claim should be dismissed because Plaintiffs fail to allege that a substantial portion of the market is foreclosed by the challenged contracts between Mission and commercial insurers." "I don't know what the legal outcome is. I think the most likely outcome, and this isn't a big guess, I think the most likely outcome is some kind of settlement, but the real question will be what is in that settlement," Richman said. A spokesperson for HCA Mission Health referred News 13 to the legal filing and did not provide additional comment.[GN] INOVIO PHARMACEUTICALS: Settlement in McDermid Gets Initial OK --------------------------------------------------------------- In the class action lawsuit captioned as PATRICK MCDERMID, individually and on behalf of all others similarly situated, v. INOVIO PHARMACEUTICALS, INC., et al., Case No. 2:20-cv-01402-GJP (E.D. Pa.), the Hon. Judge Gerald J. Pappert entered an order preliminarily approving settlement and providing for Notice in response to the Plaintiffs' unopposed motion for preliminary approval of class action settlement 1. The Plaintiffs' motion for class certification is denied as moot. 2. The Plaintiffs;' uncontested motion to file documents conditionally under seal is granted. 3. The Defendants' motion to dismiss the Plaintiffs' second amended consolidated class action complaint is denied as moot. Inovio is an American biotechnology company focused on the discovery, development, and commercialization of synthetic DNA products for treating cancers and infectious diseases. A copy of the Court's order dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3DerX1i at no extra charge.[CC] INSTAGRAM LLC: Adult Entertainers Sue Over Unfair Business Scheme ----------------------------------------------------------------- Jessy Edwards and Abraham Jewett at topclassactions.com reports that a group of adult entertainers are suing the parent companies of Facebook and OnlyFans, alleging employees in the companies colluded to harm the businesses of adult entertainers who do not advertise through the OnlyFans platform. The plaintiffs, three adult entertainers, filed the class action complaint against Meta Platforms, Inc. and Fenix Internet LLC Feb. 23 in a California federal court, alleging a scheme to give preferential treatment to adult entertainers who use OnlyFans. UK website OnlyFans is best known for hosting pornography. It has grown hugely in recent years, and lets users share video clips and photos with subscribers in return for a monthly fee. According to the plaintiffs, Facebook and OnlyFans orchestrated a scheme through which they caused adult entertainment performers associated with OnlyFans' competitors to be "blacklisted" by certain social media platforms for the purpose of reducing competition with OnlyFans. Facebook, OnlyFans Shared Adult Performer Database, Class Action Says The blacklisting process was accomplished first internally at Instagram and Facebook when social media content of adult performers promoting rival websites to OnlyFans was placed on a database of extremist material shared between tech companies, the lawsuit says. According to a recent BBC article, Meta says it investigated but found no evidence the shared hash database had been abused. "Meta did not say the scheme did not happen, just that it found no evidence of it and therefore the claim had no merit," the class action says. "This case is about a corrupt business gaining an enormous advantage over its competitors by wrongfully manipulating behind-the-scenes databases, and in the process, harming thousands of small entrepreneurs who rely on social media to promote sales of their product and earn a living." The plaintiffs say the collusion has "systematically and methodically damaged or destroyed" the businesses of many competing adult entertainment platforms and the performers who use them. The class action seeks to represent all adult entertainment providers who suffered economic injury due to the alleged scheme. The plaintiffs are suing for tortious interference with contract, intentional interference with business relationships and violation of the unfair competition law. Earlier this month, Facebook agreed to pay $90 million to resolve decade-old claims it unlawfully tracked its users' internet browsing activity even after they logged out of the social networking platform. What do you think about these claims of collusion? Let us know in the comments! The adult entertainment performers are represented by David Azar of Milberg Coleman Bryson Phillips Grossman PLLC. The OnlyFans Meta Class Action Lawsuit is Dawn Dangaard et al. v. Instagram LLC et al., Case No. 3:22-cv-01101, in the U.S. District Court for the Northern District of California. [GN] INTERNATIONAL BROTHERHOOD: Byebee Appeals ERISA Suit Dismissal -------------------------------------------------------------- KEVIN BYEBEE, et al., are taking an appeal from a court order dismissing their lawsuit entitled Kevin Byebee, et al., Plaintiffs, v. International Brotherhood of Teamsters, et al., Defendants, Case No. 3:18-cv-06632-JD, in the U.S. District Court for the Northern District of California. The Plaintiffs, individually and on behalf of all others similarly situated, brought this class action suit against the Defendants for breach of contract, breach of the duty of fair representation by the union, violation of statutory due process, breach of fiduciary duty under the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), and violations of the Employee Retirement Income Security Act of 1974 (ERISA). On March 15, 2019, the Defendants filed a motion to dismiss the Plaintiff's first amended complaint for lack of jurisdiction and/or failure to state a claim. On April 21, 2020, Judge James Donato granted the motion in part and gave the Plaintiffs leave to amend their complaint. On September 8, 2020, the Plaintiffs filed a second amended complaint. The Defendants filed three separate motions to dismiss on November 20, 2020. On August 1, 2022, the Court granted the Defendants' motion to dismiss the Plaintiffs' second amended complaint due to failure to state a claim. The Court ruled that the Plaintiffs' argument that their ERISA claims are independent of the collective bargaining agreement is simply not accurate. Accordingly, the second amended complaint was dismissed with prejudice and the Court declined to grant further leave to amend. The appellate case is captioned Kevin Byebee, et al v. IBT, et al., Case No. 22-16280, in the United States Court of Appeals for the Ninth Circuit, filed on August 23, 2022. The briefing schedule in the Appellate Case states that: -- Appellants Kevin Byebee, Sally Dill, Victor H. Drumheller and John Scholz Mediation Questionnaire was due August 30, 2022; -- Transcript is due on October 21, 2022; -- Appellants Kevin Byebee, Sally Dill, Victor H. Drumheller and John Scholz opening brief is due on November 30, 2022; -- Appellees Peter Finn, Christopher Griswold, James P. Hoffa, International Brotherhood of Teamsters, George Miranda, Paul Stripling, United Airlines Holdings' Adminstrative Committee, United Airlines Holdings, Inc. and United Airlines, Inc. answering brief is due on December 30, 2022. -- Appellants' optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiffs-Appellants KEVIN BYEBEE, et al., on behalf of themselves and all others similarly situated, are represented by: Jane Catherine Mariani, Esq. LAW OFFICE OF JANE C. MARIANI 584 Castro Street, Suite 687 San Francisco, CA 94114 Telephone: (415) 203-2453 Defendants-Appellees INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., are represented by: Susan K. Garea, Esq. BEESON, TAYER & BODINE, APC 492 9th Street, Suite 350 Oakland, CA 94607 Telephone: (510) 625-9700 - and - Chris Hollinger, Esq. O'MELVENY & MYERS, LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: (415) 984-8700 - and - Robert Alan Siegel, Esq. O'MELVENY & MYERS, LLP 400 S Hope Street, 18th Floor Los Angeles, CA 90071 Telephone: (213) 430-6005 JUUL LABS: City of Marietta Sues Over Deceptive E-Cigarette Ads --------------------------------------------------------------- BOARD OF EDUCATION OF THE CITY OF MARIETTA, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-05194 (N.D. Cal., September 12, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of Georgia Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Board of Education of the City of Marietta is a public school district with its administrative offices located in Marietta, Georgia. 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: Thomas P. Cartmell, Esq. Jonathan P. Kieffer, Esq. Tyler W. Hudson, Esq. WAGSTAFF & CARTMELL LLP 4740 Grand Ave., Ste. 300 Kansas City, MO 64112 Telephone: (816) 701-1100 Facsimile: (816) 531-2372 E-mail: tcartmell@wcllp.com jpkieffer@wcllp.com thudson@wcllp.com - and - Kirk J. Goza, Esq. Brad Honnold, Esq. GOZA & HONNOLD LLC 9500 Nall Ave., Ste. 400 Overland Park, KS 66207 Telephone: (913) 451-3433 E-mail: kgoza@gohonlaw.com bhonnold@gohonlaw.com - and - Andy D. Birchfield, Jr., Esq. Joseph G. VanZandt, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC 234 Commerce Street Montgomery, AL 36103 Telephone: (334) 269-2343 E-mail: Andy.Birchfield@BeasleyAllen.com Joseph.VanZandt@BeasleyAllen.com - and - Rahul Ravipudi, Esq. PANISH SHEA & BOYLE LLP 11111 Santa Monica Boulevard, Suite 700 Los Angeles, CA 90025 Telephone: (310) 477-1700 Facsimile: (310) 477-1699 E-mail: ravipudi@psblaw.com - and - John P. Fiske, Esq. BARON & BUDD, P.C. 11440 West Bernardo Court Suite 265 San Diego, CA 92127 Telephone: (858) 251-7424 Facsimile: (214) 520-1181 E-mail: jfiske@baronbudd.com - and - Khaldoun Baghdadi, Esq. WALKUP MELODIA KELLY & SCHOENBERGER, P.C. 650 California Street, 26th Floor San Francisco, CA 94108 Telephone: (415) 617-1269 E-mail: kbaghdadi@walkuplawoffice.com JUUL LABS: Entices Youth to Buy E-Cigarette, Clayton Cty. Claims ---------------------------------------------------------------- CLAYTON COUNTY PUBLIC SCHOOLS, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-05189 (N.D. Cal., September 12, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Georgia Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. Clayton County Public Schools is a public school district with its administrative offices located in Jonesboro, Georgia. 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: Thomas P. Cartmell, Esq. Jonathan P. Kieffer, Esq. Tyler W. Hudson, Esq. WAGSTAFF & CARTMELL LLP 4740 Grand Ave., Ste. 300 Kansas City, MO 64112 Telephone: (816) 701-1100 Facsimile: (816) 531-2372 E-mail: tcartmell@wcllp.com jpkieffer@wcllp.com thudson@wcllp.com - and - Kirk J. Goza, Esq. Brad Honnold, Esq. GOZA & HONNOLD LLC 9500 Nall Ave., Ste. 400 Overland Park, KS 66207 Telephone: (913) 451-3433 E-mail: kgoza@gohonlaw.com bhonnold@gohonlaw.com - and - Andy D. Birchfield, Jr., Esq. Joseph G. VanZandt, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC 234 Commerce Street Montgomery, AL 36103 Telephone: (334) 269-2343 E-mail: Andy.Birchfield@BeasleyAllen.com Joseph.VanZandt@BeasleyAllen.com - and - Rahul Ravipudi, Esq. PANISH SHEA & BOYLE LLP 11111 Santa Monica Boulevard, Suite 700 Los Angeles, CA 90025 Telephone: (310) 477-1700 Facsimile: (310) 477-1699 E-mail: ravipudi@psblaw.com - and - John P. Fiske, Esq. BARON & BUDD, P.C. 11440 West Bernardo Court Suite 265 San Diego, CA 92127 Telephone: (858) 251-7424 Facsimile: (214) 520-1181 E-mail: jfiske@baronbudd.com - and - Khaldoun Baghdadi, Esq. WALKUP MELODIA KELLY & SCHOENBERGER, P.C. 650 California Street, 26th Floor San Francisco, CA 94108 Telephone: (415) 617-1269 E-mail: kbaghdadi@walkuplawoffice.com JUUL LABS: Triggers Youth E-Cigarette Crisis, Alachua Suit Claims ----------------------------------------------------------------- SCHOOL BOARD OF ALACHUA COUNTY, on behalf of itself and all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-05182 (N.D. Cal., September 12, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Florida Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants used three tactics to maintain market dominance in the cigarette industry: (1) product design to maximize addiction, (2) mass deception, and (3) targeting of youth. Defendants JUUL Labs and Adam Bowen designed an e-cigarette device allegedly intended to create and sustain addiction, but without the stigma associated with cigarettes and promoted them to vulnerable young population. JUUL Labs and other Defendants developed and implemented a marketing scheme to mislead users into believing that JUUL products contained less nicotine than they actually do and were healthy and safe. The Defendants enticed newcomers to nicotine with kid-friendly flavors without ensuring the flavoring additives were safe for inhalation. The Defendants targeted the youth market by placing vaporized campaigns on youth-oriented websites and media and using influencers and affiliates to amplify their message to a teenage audience. The Defendants have successfully caused more young people to start using e-cigarettes, creating a youth e-cigarette epidemic and public health crisis, says the suit. School Board of Alachua County is a public school district with its administrative offices located in Gainesville, Florida. 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: Thomas P. Cartmell, Esq. Jonathan P. Kieffer, Esq. Tyler W. Hudson, Esq. WAGSTAFF & CARTMELL LLP 4740 Grand Ave., Ste. 300 Kansas City, MO 64112 Telephone: (816) 701-1100 Facsimile: (816) 531-2372 E-mail: tcartmell@wcllp.com jpkieffer@wcllp.com thudson@wcllp.com KELLOGG SALES: Faces Moore Suit Over Crackers' Deceptive Labels --------------------------------------------------------------- Mary Moore, individually and on behalf of all others similarly situated, Plaintiff v. Kellogg Sales Company, Defendant, Case No. 3:22-cv-03172-SEM-KLM (C.D. Ill., Sept. 5, 2022) is a class action against the Defendant for breaches of express warranty, negligent misrepresentation, fraud, unjust enrichment, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, the State Consumer Fraud Acts, and the Magnuson Moss Warranty Act. According to the complaint, the Defendant misrepresented its lightly toasted, dark and mottled crackers with specks of what appear to be pieces of grain, identified as "Harvest Wheat" under the Kellogg's Toasteds Crackers brand. The Defendant's representations cause consumers, including Plaintiff, to expect the product contains a greater absolute and relative amount of whole grains compared to refined grains than it does, when in fact, the product contains a negligible absolute and relative amount of whole grains, the suit asserts. As a result of the false and misleading representations, the product is sold at a premium price, approximately no less than $3.69 for 8 ounces, 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. Kellogg Sales Company is an American multinational food manufacturing company.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com KIM KARDASHIAN: Hit With $40M Class Action Over Fake Lottery ------------------------------------------------------------ wonderwall.com, citing TMZ, reports that Kim Kardashian and Scott Disick are facing a $40 million class action lawsuit filed by plaintiffs who claim the stars lured them into a fake lottery with no actual winners. Kim and Scott allegedly promoted the online contest through a partnership with Curated Businesses, promising the winner would receive $100,000, a pair of first-class tickets to Los Angeles, and a three-night stay in Beverly Hills, California, plus a shopping spree. Plaintiffs, however, say nobody ever won the contest, which they claim was a scam created to access and then sell the participants' personal information. The filing goes on to claim those who entered the contest are now being inundated "by hundreds of advertisers, some of which are soliciting the plaintiffs with potentially offensive and unwanted content." Curated Businesses sources tell TMZ they did award the prizes to real winners and maintain they have evidence the whole thing was legit. Although Kim's famous family members helped promote the contest on social media, only Kim and Scott - along with Curated Businesses - are named as defendants. [GN] KONINKLIJKE PHILIPS: Rubenstein Consumer Suit Removed to S.D.N.Y. ----------------------------------------------------------------- The case styled RICHARD RUBENSTEIN and ELIZABETH CALLEJA, individually and on behalf of all others similarly situated v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH AMERICA LLC; PHILIPS RS NORTH AMERICA LLC; PHILIPS HOLDING USA, INC.; and PHILIPS HEALTHCARE, Case No. 154758/2022, was removed from the Supreme Court of the State of New York, County of New York, to the U.S. District Court for the Southern District of New York on September 12, 2022. The Clerk of Court for the Southern District of New York assigned Case No. 2:22-cv-01298-JFC to the proceeding. The case arises from the Defendants' alleged strict liability, negligent design defect, negligent failure to warn, negligent manufacturing defect, negligence, misrepresentation, breach of express warranty, breach of implied warranty of merchantability, and loss of consortium by manufacturing and selling Continuous Positive Airway Pressure and BiLevel Positive Airway Pressure devices containing polyester-based polyurethane sound abatement foam. Koninklijke Philips N.V. is a health technology company with its principal executive offices at Philips Center, Amstelplein 2, 1096 BC Amsterdam, The Netherlands. Philips North America LLC is a health technology company with its principal place of business located at 222 Jacobs Street, Floor 3, Cambridge, Massachusetts. Philips Holding USA, Inc. is a company that manufactures and distributes medical systems and lighting appliances, headquartered in Cambridge, Massachusetts. Philips RS North America LLC is a company that manufactures and markets medical devices with its principal place of business located at 6501 Living Place, Pittsburgh, Pennsylvania. Philips Healthcare is a provider of healthcare products and solutions, headquartered in Massachusetts. [BN] The Defendants are represented by: Gary Adler, Esq. MORGAN, LEWIS & BOCKIUS LLP 101 Park Ave. New York, NY 10178-0060 Telephone: (212) 309-6140 Facsimile: (212) 309-6001 E-mail: gary.adler@morganlewis.com - and - John P. Lavelle, Jr., Esq. MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 Telephone: (215) 963-5000 Facsimile: (215) 963-5001 E-mail: john.lavelle@morganlewis.com KROGER CO: Agee Sues Over Misleading Lidocaine Patch Labels ----------------------------------------------------------- Tiffany Agee, individually and on behalf of all others similarly situated, Plaintiff v. The Kroger Co., Defendant, Case No. 1:22-cv-04744 (N.D. Ill., Sept. 4, 2022) arises from the Defendant's alleged misrepresentations of the "Maximum Strength" adhesive patches promising to deliver 4% lidocaine under the Kroger brand. According to the complaint, the product's front label identifies it as "Lidocaine Patch[es]," that are "Maximum Strength," containing "4% Lidocaine/Topical Anesthetic" that provides relief "For Back, Neck, Knees, Shoulders & Elbows." The label further promises "Up to 8 Hours of Relief" and that it can be used "[F]or Temporary Relief of Pain," to "[D]esensitize Aggravated Nerves," and provide "[N]umbing Relief." However, the product cannot adhere to the skin for eight hours, which renders the instructions to remove it after eight hours misleading, because it assumes it will not have fallen off by then. The result of the failure to adhere to the user's bodies is that the product does not deliver the "Maximum Strength" amount of lidocaine in patch form, says the suit. As a result of the false and misleading representations, the product is sold at a premium price, approximately no less than no less than $8.99 for six patches, 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. Had Plaintiff known the truth, she would not have bought the product or would have paid less for it, the suit asserts. Kroger Co. is an American retail company that operates supermarkets and multi-department stores throughout the United States.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com LYNEER STAFFING: Faces Abuhassouna Wage-and-Hour Suit in Cal. ------------------------------------------------------------- MAJD ABUHASSOUNA, on behalf of himself and all others similarly situated, Plaintiff v. LYNEER STAFFING SOLUTIONS, LLC, THE REGAN GROUP, and DOES 1 through 10, inclusive, Defendants, Case No. 22STCV29589 (Cal. Super., Los Angeles Cty., September 12, 2022) is a class action against the Defendants for violations of California Labor Code including failure to pay overtime wages, failure to provide meal breaks or pay premium in lieu thereof, failure to provide rest breaks or pay premium in lieu thereof, failure to pay all final wages due at termination or within 72 hours after separation, failure to provide accurate itemized wage statements, failure to timely pay wages, and failure to reimburse business expenses. The Plaintiff was employed by the Defendants as a non-exempt employee. Lyneer Staffing Solutions, LLC is a provider of staffing solutions, doing business in Torrance, California. The Regan Group is a provider of marketing, promotions, and fulfillment services, doing business in Torrance, California. [BN] The Plaintiff is represented by: Roman Otkupman, Esq. Nidah Farishta, Esq. OTKUPMAN LAW FIRM, A LAW CORPORATION 5743 Corsa Ave., Suite 123 Westlake Village, CA 91362 Telephone: (818) 293-5623 Facsimile: (888) 850-1310 E-mail: Roman@OLFLA.com Nidah@OLFLA.com MARISCOS LOS PRIMOS: Romero Sues Over Unlawful Labor Practices -------------------------------------------------------------- GERARDO ROMERO, Plaintiff v. MARISCOS LOS PRIMOS INC; DOREYDA GONZALEZ DAVILA; ISMAEL ZARAGOZA CORONA; and DOES 1 to 25, inclusive, Defendants, Case No. 22STCV28770 (Cal. Super., Los Angeles Cty., Sept. 2, 2022) is a class action arising from the Defendants' alleged unlawful labor practices in violation of the California Labor Code and the California Business and Professions Code. The Plaintiff alleges that the Defendants failed to compensate for all hours worked; pay minimum wages; pay overtime; provide accurate itemized wage statements; pay wages owed every pay period; give rest and meal breaks; fpay wages when employment ends; and reimburse business expenses. The complaint further asserts retaliation in violation of the Labor Code; wrongful termination in violation of Public Policy; assault and battery; negligent retention and supervision; intentional infliction of emotional distress; and negligent infliction of emotional distress. The Plaintiff started working for Mariscos in 2014, and his employment ended in May 2022. During his employment tenure, Plaintiff was classified as an hourly, non-exempt employee and earned $13 per hour as a cook. Mariscos Los Primos Inc. is in the Mexican restaurant business.[BN] The Plaintiff is represented by: Harout Messrelian, Esq. MESSRELIAN LAW INC. 500 N. Central Ave., Suite 840 Glendale, CA 91203 Telephone: (818) 484-6531 Facsimile: (818) 956-1983 E-mail: hm@messrelianlaw.com MCMENAMINS INC: Court Denies Bid to Dismiss Amended Leonard Suit ---------------------------------------------------------------- In the case, ANDREW LEONARD, NICHOLAS DEGRASSE, JAMES FRAZIER, AND CHARLES FRYE, individually and on behalf of all others similarly situated, Plaintiffs v. McMENAMINS, INC., Defendant, Case No. 2:22-cv-00094-BJR (W.D. Wash.), Judge Barbara Jacobs Rothstein of the U.S. District Court for the Western District of Washington, Seattle, denies the Defendant's motion to dismiss the Plaintiffs' Amended Complaint. The Plaintiffs bring the putative class action against McMenamins, asserting various causes of action arising from a data breach McMenamins experienced in December 2021. On Dec. 30, 2021, McMenamins posted a notice on its website announcing that, on Dec. 12, 2021, it had suffered a ransomware attack in which cybercriminals "installed malicious software on the company's computer systems" that temporarily prevented the company from accessing the information contained in those systems. According to the notice, the attack also enabled the hackers to steal the company's human resources and payroll data files, which contained a variety of personally identifiable information ("PII") belonging to past and present employees. The compromised PII included the following information: "name, address, telephone number, email address, date of birth, race, ethnicity, gender, disability status, medical notes, performance and disciplinary notes, Social Security number, health insurance plan election, income amount, and retirement contribution amounts." The Plaintiffs are current and former employees of McMenamins who provided the company with PII as a condition of their employment. In January 2020, deGrasse detected several unauthorized charges to his credit card account. Although deGrasse's credit card company ultimately never billed him for those fraudulent charges, he spent approximately one-and-a-half hours disputing them and activating a new credit card. On Aug. 9, 2021, Leonard filed the lawsuit as a class action "on behalf of individuals employed by McMenamins between Jan. 1, 1998 and Dec. 12, 2021 who had their sensitive PII accessed by unauthorized parties due to inadequate network security in a ransomware attack on McMenamins' IT systems on Dec. 12, 2021." In the Amended Complaint, which adds deGrasse, Frazier, and Frye as plaintiffs, the Plaintiffs assert numerous causes of action arising from what Plaintiffs allege was the Defendant's failure to maintain adequate network security measures as necessary to protect their PII. Specifically, the Plaintiffs assert claims for (1) negligence, (2) breach of contract, (3) breach of implied contract, (4) unjust enrichment, (5) breach of fiduciary duty, (6) breach of confidence, (7) bailment, (8) violation of the Washington Consumer Protection Act ("CPA"), RCW Section 19.86 et seq., and (9) declaratory relief. On May 27, 2022, the Defendant moved to dismiss the Amended Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that the Plaintiffs lack Article III standing to assert their claims. The Plaintiffs opposed the Motion and the Defendant replied. The Plaintiffs' claims seek two types of relief: (1) retrospective damages resulting from the theft of their PII, and (2) prospective injunctive relief requiring the Defendant to strengthen its data security systems and procedures. The Defendant contends that the Plaintiffs lack Article III standing to assert either type of claim. First, in the Motion, the Defendant contends that the Plaintiffs lack standing to assert their claims for damages because the harm they allege -- the threatened misuse of their PII resulting from the data breach --is too "speculative" and "hypothetical" to constitute an injury-in-fact. The Plaintiffs, in response, point to three separate harms they contend constitute injuries-in-fact: (1) the "increased risk" of identity theft resulting from the data breach, "requiring them to take mitigatory action they otherwise would not have to take"; (2) "the diminution in value of the Private Information belonging to Plaintiffs and the Class that remains in the possession and control of the Defendant"; and (3) the "actual misuse" of deGrasse's PII by cybercriminal. Judge Rothstein holds that the Plaintiffs have standing to assert their damages claims. She finds that the Plaintiffs do not allege that their credit card information was ever provided to McMenamins, that a new credit card was opened in deGrasse's name using compromised PII, or anything otherwise indicating the use or attempted use of that PII. Nor do they articulate any "independent harm" caused by their exposure to the alleged risk of identity theft. Nevertheless, they have alleged an injury-in-fact based not on the risk of future identify fraud created by the data breach, but on the actual harm resulting from the theft of their PII itself. Hence, the Plaintiffs have adequately alleged a harm bearing a "close relationship" to the harm associated with the tort of "disclosure of private information." Their allegations as to the theft and resulting loss of control over their PII bear a sufficiently close relationship to the type of harm protected by that tort. As such, they adequately allege a concrete and actual harm sufficient to plead an injury-in-fact. Given this finding, Judge Rothstein declines to review the sufficiency of the Plaintiffs' other alleged harms. Next, the Plaintiffs' claims for negligence, breach of contract, breach of implied contract, violation of the CPA, and declaratory relief seek, in part, prospective injunctive relief requiring the Defendant to undertake various actions to safeguard the PII McMenamins currently possesses. Unlike their damages claims based on the past theft of the Plaintiffs' PII, the injunctive relief they sought concerns continuing actions by the Defendant related to its current possession of their PII. The Defendant argues that Plaintiffs Leonard, deGrasse, and Frazier lack standing to seek that relief because they "have failed to allege that (1) they actually will benefit from the relief they seek, and (2) the harm they seek to prevent is imminent and substantial." Judge Rothstein holds that the Plaintiffs have standing to pursue injunctive relief. There is no difference between McMenamins' current and former employees insofar as the company possesses PII belonging to both categories of employees. The Defendant's assertion that McMenamins has already strengthened its data security is also unsupported and, more importantly, premature at this stage of litigation. Its contention that the Plaintiffs do not allege a risk of "imminent and substantial" harm likewise lacks merit. Given the Plaintiffs' allegations that McMenamins has maintained inadequate data security measures to safeguard its former and current employees' PII, and that McMenamins' data security system was breached in December 2021, Judge Rothstein finds that the Plaintiffs have alleged an imminent and substantial risk of harm resulting from a future breach and theft of their PII. For the foregoing reasons, Judge Rothstein rejects the Defendant's arguments that the Plaintiffs lack Article III standing to assert their claims. Therefore, she denies McMenamins' motion to dismiss. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/3e8425rs from Leagle.com. MDL 2985: Bids to Dismiss Casino-Style Games Suit Granted in Part ----------------------------------------------------------------- In the cases, IN RE: APPLE INC. APP STORE SIMULATED CASINO-STYLE GAMES LITIGATION, IN RE: GOOGLE PLAY STORE SIMULATED CASINO-STYLE GAMES LITIGATION, IN RE: FACEBOOK SIMULATED CASINO-STYLE GAMES LITIGATION, Case Nos. 5:21-md-02985-EJD, 5:21-md-03001-EJD, 5:21-cv-02777-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, grants in part and denies in part the Defendants' motions to dismiss. In this putative class action, the Plaintiffs allege that Defendants Apple, Google, and Facebook violate various state consumer protection laws by distributing game applications that operate as social casinos and thus permit illegal gambling. Over the last decade, large social media companies and technology developers have turned their focus on developing applications or "apps." As relevant in the case, slot machine companies have partnered with technology companies to develop "social casino applications." Social casinos are playable "apps" that can be accessed via smartphones, tablets, and internet browsers. These virtual casinos attempt to recreate an "authentic Vegas-style" slot-machine, gambling experience. The simulated social casino apps are designed to look like traditional casino games, such as slot machines, bingo, or craps. This seemingly makes social casinos apps addictive in the same way as "in-person" gambling. Indeed, the social casinos apps function much like in-person gambling. Users purchase virtual "chips" in exchange for real money. However, social casinos do not allow players to cash out their chips. Instead, both purchased and "won" chips can only be used for more slot machine "spinning." This makes the social casino apps "extraordinarily profitable and highly addictive." One important distinction, however, is that social casino developers have access to big data, which allows them to identify, target, and exploit consumers prone to addictive behaviors. The Plaintiffs allege that these social casino apps do not, and cannot, operate and profit at such a high level from these illegal games on their own. The Platforms "retain full control over allowing social casinos into their stores, and their distribution and promotion therein," and "share directly in a substantial portion of the gamblers' losses, which are collected and controlled by the Platforms themselves." Importantly, each complaint alleges that Apple, Facebook, and Google conspired with the social casino app developers to participate in a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). The Plaintiffs assert multiple claims against the Platforms. For instance, they pursue comparable claims under California, Alabama, Georgia, Connecticut, Illinois, Indiana, Minnesota, Mississippi, Missouri, New Mexico, New York, Ohio, and Oregon (among other states). These claims are similar -- the Plaintiffs pursue claims under unfair competition laws, unjust enrichment, illegal gambling and/or gambling loss laws. Importantly, the claims are asserted against the Platforms themselves. For example, Count I alleges that by hosting Illegal Slots within the meaning of California Penal Code Section 330, Apple engaged in unfair competition within the meaning of California Business and Professions Code Section 17200 by committing unlawful, unfair and fraudulent business acts and practices. Count II alleges, by hosting Illegal Slots, Apple was unjustly enriched to the detriment of Plaintiffs and profited immensely by providing marketing guidance, tools, and other assistances to the developers of social casinos and retaining a percentage of the money spent by consumers in social casinos. Count III alleges, by actively participating in the operation of social casinos by providing market guidance and helping create and develop the social casinos, Apple violated Alabama Code Section 8-1-150(a). The Plaintiffs' claims of unfair competition, gambling violations, and unjust enrichment thus pursue the Platform's individual acts, not the acts of third-parties. The Platforms seek dismissal of the complaints filed against them without leave to amend, arguing that they are immune from suit under Section 230 of the Communications Decency Act of 1996 ("CDA"), 47 U.S.C. Section 230. The Plaintiffs disagree, arguing that Section 230 of the CDA does not apply to the case at hand. Judge Davila explains that Section 230 of the CDA "protects certain internet-based actors from certain kinds of lawsuits." Section 230(c)(1) provides that no provider or user of an interactive computer service will be treated as a publisher or speaker of any information provided by another information content provider. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. The majority of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. In Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), the Ninth Circuit created a three-prong test for Section 230 immunity. "Immunity from liability exists for '(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.'" When a plaintiff cannot allege enough facts to overcome Section 230 immunity, a plaintiff's claims should be dismissed. To determine whether Section 230 immunity applies, Judge Davila must decide whether the Plaintiffs' theory of liability would treat the Platforms as a publisher or speaker of third-party content. There is no dispute that prongs one and three are satisfied. Rather, the Plaintiffs dispute the applicability of the second prong and argue that the second prong is not applicable because they seek to hold the Platforms liable for their own conduct. The dispositive question in the case is whether the Platforms were "publishers or speakers" within the meaning of 47 U.S.C. Section 230(c)(1). As established, through section 230, Congress granted most Internet services immunity from liability for publishing third-party material. To understand the boundaries of this immunity, the Court reviews several cases that have wrestled with the applicability of section 230 immunity. In doing so, Judge Davila examines the motivations of section 230 and how these motivations interact with the holdings of this Circuit's case law. In examining this Circuit's case law, he attempts to understand the evolution of section 230 precedent and how that precedent has responded to the rapid and unforeseen changes to the Internet. Judge Davila finds that Section 230 operates to prevent a website from being vicariously liable for the acts of a third-party contributor. The operative question is therefore: Does the Plaintiff seek to hold a website liable for its own bad conduct or for the bad conduct of another? To answer this question, Judge Davila notes that the Ninth Circuit created a three-prong test for Section 230 immunity. Immunity from liability exists for (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider. Only the second element of the Barnes test is at issue. The Parties agree that the Platforms are interactive computer services and that the applications at issue were created by third parties. However, there is significant overlap between the second and third elements of the Barnes test. Indeed, allegations that a platform helped develop or create illegal content through data-sharing are certainly relevant to understanding whether the platform behaved as a "publisher or speaker" of third-party content. The Plaintiffs assert three theories of liability. One is premised on a non-revenue theory of liability and argues that the Platforms are liable because they promoted the illegal casino applications in their App Stores and thus induced users to play the illegal games. The remaining two are premised on revenue theories of liability and argue that the Platforms are liable for their own illegal acts of selling gambling chips and working with developers to increase user engagement to drive revenue. 1. The Platforms are liable for their acts of offering, categorizing, and promoting social casino applications in their respective App Stores, and applying special rules to the social casino applications. 2. To play the social casino apps, users must buy virtual chips through the Platforms. These virtual chips can only be used inside the social casino apps, and substantially all virtual chips are used on slot machine spins. The Platforms thus aid in the exercise of illegal gambling by selling chips that are substantially certain to be used to wager on a slot machine spin. 3. The Platforms are closely involved in social casinos' business strategies. Judge Davila holds that the Plaintiffs' first and third theories of liability must be dismissed under section 230. He says allegations that the Platforms are liable for actions that rely on algorithms to "amplify and direct users to content," like the social casino apps, cannot withstand section 230's grant of immunity. And, because the Platforms' sharing of data is fairly seen as a classic editorial role, section 230 immunizes this conduct. However, Judge Davila holds that the Plaintiffs' second theory of liability is not barred by section 230. The Plaintiffs seek to impose liability for the Platforms processing of unlawful transactions for unlawful gambling. Accordingly, the requested relief is grounded in the Platforms' own bad acts, not in the content of the social casino apps that the Platforms display on their websites. Judge Davila thus grants in part and denies in part the Defendants' respective motions to dismiss. He joins other opinions that note that the history of section 230 does not support a reading of the CDA so expansive as to reach a websites-generated message and functions. As analyzed, the twin goals of section 230 do not support this broad reading. Immunizing a website's own targeted advertisements and algorithms does not advance a website's internal policing of indecent content or promoting third-party speech. The data-driven targeting of consumers by big social-media platforms can hardly be compared to the Internet of 1996. Platforms like Facebook, Google, and Apple are more than mere message boards, they are creators of content themselves, and they should be treated as such. Finally, Judge Davila points out that the case presents exceptional circumstances that are sufficient to justify an interlocutory appeal. It involves controlling questions of law, namely whether the Platforms are entitled to immunity for their hosting of the allegedly unlawful social casino apps. While he believes the Court has followed the Ninth Circuit's precedent on this complicated question, he finds that reasonable minds could differ as to the outcome of the case. He finds that immediate appeal would materially advance the ultimate termination of the litigation and would ensure that resources are not wasted on needless litigation and expenses. If the Ninth Circuit reverses the Court as to the Plaintiffs' second theory of liability, the case is resolved in its entirety. However, if interlocutory appeal is not granted and the Ninth Circuit reverses the Court's holding as to the Plaintiffs' second theory of liability after final judgment is entered, it would be a significant and needless waste of the Court and the Parties' resources. Judge Davila sua sponte certifies the order for immediate interlocutory appeal. He stays the action pending determination from the Ninth Circuit Court of Appeals as to whether it will accept certification. The Parties are ordered to file a joint status report with the Court after the Court of Appeals has decided whether to certify the interlocutory appeal or in six months, whichever occurs first. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/yfyesrcd from Leagle.com. MICHIGAN: Court Dismisses O'Connor v. Eubanks, Stanton and State ---------------------------------------------------------------- In the case, DENNIS O'CONNOR, Plaintiff v. RACHAEL EUBANKS, TERRY STANTON, and the STATE OF MICHIGAN, Defendants, Case No. 21-12837 (E.D. Mich.), Judge Nancy G. Edmunds of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants the Defendants' Motion to Dismiss the Amended Complaint. The putative class action concerns the Uniform Unclaimed Property Program ("UUPP") arising under the State of Michigan's Uniform Unclaimed Property Act, Mich. Comp. Laws Sections 567.221, et seq. The Act "provides a mechanism by which the state may hold certain unclaimed property in trust for the benefit of the rightful owner." Mr. O'Connor, on behalf of himself and the class he seeks to represent, filed an Amended Complaint for money damages against the State of Michigan and Defendants Eubanks (administrator of UUPP) and Stanton (state administrative manager of UUPP) in their personal capacities. The Amended Complaint asserts that the Defendants violated the Fifth and Fourteenth Amendments to the United States Constitution by not paying the Plaintiff and the putative class members interest accumulated on the value of the assets held in the UPPP, or alternatively, by operating the UUPP as a "Ponzi scheme." Michigan's UUPP's main objective is to reunite owners or heirs with their lost or forgotten property. Examples of unclaimed property include uncashed payroll checks, inactive stocks, dividends, checking and savings accounts, and certain physical property (such as safety deposit boxes and tangible property). Businesses and governmental agencies that have property that belongs to someone else, has been dormant for a specified period, and remains unclaimed, are required to turn the property over to the state program. The State of Michigan never takes ownership of the property but serves as custodian for the owner or heir. Once the funds are reported and remitted as unclaimed property from holders, the money is transferred to the State's General Fund, but a separate trust fund is maintained from which the State pays claimants. The trust fund account is non-interest bearing, and per state law, claimants are only entitled to interest on assets that were interest bearing at the time they were turned over to the state. The Plaintiff owns two assets that are currently being held in the UUPP after they were turned over from FMC Corporation and Michigan Millers Mutual Insurance Co. These assets are valued at between $100 and $250, and less than $100, respectively. The Amended Complaint is silent as to whether or not these funds were collecting interest before they were turned over to the UUPP, but the Plaintiff states that interest generated by this property while it was in the custody of the UUPP was "seized and taken for public use without notice." In the alternative, he alleges that the principal on his property was taken for "public use without notice" and that under the State's "Ponzi scheme," more recently received unclaimed property is being used to reimburse individuals seeking to claim the property. He asks that "his money -- both principal and interest be returned to him." The Plaintiff proposes two possible classes: (1) the individuals or entities entitled to interest on the unclaimed funds; and (2) individuals or entities "who have had their property assets seized and spent" while the funds were in the custody of the UUPP. (Id.) He claims the Defendants violated the Takings Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. He requests money damages on behalf of himself and the prospective classes. On Feb. 17, 2022, the Defendants filed a motion to dismiss the Plaintiff's Amended Complaint. The Court referred that motion, along with the Plaintiff's Motion for Order to Exclude Exhibits, to the Magistrate Judge. Before the Court is the Magistrate Judge's June 30, 2022 Report and Recommendation on Defendants' Motion to Dismiss, and the Plaintiff's objections thereto. The Defendants responded to the Plaintiff's objections and the Plaintiff filed a reply to their response. Also before the Court is the Magistrate Judge's Order Denying Plaintiff's Motion to Exclude Defendants' Exhibits as Moot. The Plaintiff objected to this Order pursuant to Fed. R. Civ. P. 72(a), the Defendant filed a response to the objection, and the Plaintiff replied. The Plaintiff first challenges the Magistrate Judge's Report and Recommendation on the Defendants' motion to dismiss. The Defendants moved to dismiss the Plaintiff's Amended Complaint under Rule 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. The Magistrate Judge recommends that the Court grant Defendants' motion to dismiss the Amended Complaint. In her report, the Magistrate Judge concludes that the Court does not have jurisdiction over the Plaintiff's claims against the State of Michigan. She further notes that the Plaintiff does not dispute that binding precedent requires this outcome. In addition, she concludes that Eubanks and Stanton are entitled to qualified immunity because their (1) actions were mandated by Michigan statute and were therefore non-discretionary; and (2) because it is not clearly established that claimants are entitled to interest on unclaimed property under either the Due Process Clause or the Takings Clause of the Constitution. The Plaintiff filed two timely objections to the Magistrate Judge's Report and Recommendation. First, the Plaintiff objects to the Magistrate Judge's recommendation to dismiss the claims against the State of Michigan for lack of subject matter jurisdiction, though he notes he only makes this objection to preserve his appellate rights. Second, he objects to the Magistrate Judge's conclusion that Defendants Eubanks and Stanton are entitled to qualified immunity. Judge Edmunds overrules the Plaintiff's objections. At the outset, she notes that the Plaintiff's objections are duplicative of the arguments made in his response and the Court is not obligated to reassess these identical arguments. Despite this lack of obligation, Judge Edmunds has reviewed the record and relevant law de novo and finds that none of the Plaintiff's objections have merit. She agrees with the Magistrate Judge's analysis on the issues of both sovereign and qualified immunity. Regarding sovereign immunity, she agrees with the Magistrate Judge's conclusion that "it is well settled that 'the States' sovereign immunity protects them from takings claims for damages in federal court'" and that no exception applies to the Plaintiff's claims. She also agrees with the Magistrate Judge's conclusion that the individual Defendants are entitled to qualified immunity from suit. Furthermore, even if the Plaintiff could show that his constitutional rights were violated, the individual Defendants are entitled to qualified immunity because he has not shown that it is clearly established, either under the Taking Clause or the Due Process Clause, that he has the right to collect interest on funds that were non-interest-bearing when abandoned. The Plaintiff also objects to the Magistrate Judge's order denying as moot his Motion to Exclude Exhibits from Rule 12(b)(6) motion. The Defendants attached four exhibits to their motion to dismiss the Amended Complaint: an affidavit by Defendant Stanton; a list of previously unclaimed properties by Plaintiff and notification that his claim for recovery of same had been processed; a state court opinion and order denying the Plaintiff's request for interest on a non-interest-bearing, unclaimed account; and a state court notice of appeal of the same judgment. The Plaintiff argues these are not properly considered on a motion to dismiss and that consideration of exhibits by the Court would necessarily convert the Defendants' motion into one for summary judgment requiring the Court to give him "a reasonable opportunity to present all the material that is pertinent to the motion." As with his objections to the Magistrate Judge's Report and Recommendation, the Plaintiff's objection to this order is almost a verbatim recitation of the original arguments made in his motion so the objection is invalid and the Court is not obligated to consider it. Judge Edmunds holds that an in-depth analysis of the Defendants' exhibits is not necessary. Neither the Magistrate Judge nor the Court relied on the Defendants' exhibits in ruling on the Defendants' motion to dismiss. Accordingly, she agrees with the Magistrate Judge's disposition of the motion. For the stated reasons, Judge Edmunds overrules the Plaintiff's objections to the June 30, 2022 report and recommendation and his objection to the Magistrate Judge's Order Denying Plaintiff's Motion to Exclude Defendants' Exhibits as Moot. She declines to modify or set aside the Magistrate Judge's Order Denying Plaintiff's Motion to Exclude. In addition, she accepts and adopts the Magistrate Judge's June 30, 2022 Report and Recommendation on Defendants' Motion to Dismiss She grants the Defendants' Motion to Dismiss the Amended Complaint and denies as moot their first motion to dismiss. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/2p98vhm7 from Leagle.com. MOBIS ALABAMA: Parties Seek Extension to File Class Cert Bid ------------------------------------------------------------ In the class action lawsuit captioned as JORGE OSWALDO AQUINO MARTINEZ, individually and on behalf of all others similarly situated, v. MOBIS ALABAMA, LLC d/b/a HYUNDAI MOBIS, GB2G, INC. d/b/a ALLSWELL, and SPJ CONNECT, Case No. 3:22-cv-00145-TCB-RGV (N.D. Ga.), the Parties ask the Court to enter an order extending the time in which the Defendants have to answer or otherwise respond to the Complaint, and for an extension of the deadline by which Plaintiff must file a motion for certification of a class pursuant to Fed. R. Civ. P. 23. On August 11, 2022, the Plaintiff filed his Complaint, asserting claims individually on his own behalf and on behalf of a putative class. On August 11, 2022, Hyundai Mobis was served with a copy of the Complaint. On August 18, 2022, Allswell and SPJ Connect were served with a copy of the Complaint. The Plaintiff seeks a six-month extension for the deadline before which he must file a motion for the determination under Fed. R. Civ. P. 23(c)(1) so that he will have the opportunity to conduct discovery beforehand. A copy of the Parties' motion dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3B8SZof at no extra charge.[CC] The Plaintiff is represented by: Rachel B. Benjamin, Esq. Brian J. Sutherland, Esq. HALL & LAMPROS, LLP 400 Galleria Parkway, Suite 1150 Atlanta, GA 30339 Telephone: (404) 876-8100 E-mail: rachel@hallandlampros.com brian@hallandlampros.com The Counsel for Defendants GB2G, Inc., are: John S. Gibbs III, Esq. Charles E. Peeler, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 600 Peachtree Street, NE, Suite 3000 Atlanta, GA 30308 Telephone: (404) 885-3093 E-mail: evan.gibbs@troutman.com Charles.peeler@troutman.com The Counsel for Defendant Mobis Alabama, LLC, are: d/b/a Hyundai Mobis Jon M. Gumbel, Esq. Ingu Hwang, Esq. BURR & FORMAN LLP 171 17th Street, NW, Suite 1100 Atlanta, GA 30363 Telephone: (404) 815-3000 E-mail: jgumbel@burr.com ihwang@burr.com MRS BPO LLC: Pollack Sues Over Misleading Collection Letters ------------------------------------------------------------ The case, JOSEPH POLLACK, individually and on behalf of all others similarly situated, Plaintiff v. MRS BPO, LLC, Defendant, Case No. 525236/2022 (N.Y. Sup. Ct., August 30, 2022) arises from the Defendant's alleged abusive debt collection practices that violated the Fair Debt Collection Practices Act. The Plaintiff has an alleged obligation incurred to non-party Citizens Bank N.A. for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. According to the complaint, the Defendant was contracted by Citizens Bank for the purpose of collecting the Plaintiff's alleged debt. Consequently, on or about November 19, 2021, the Defendant sent the Plaintiff an initial collection letter, which listed amounts that do not add up and therefore do not make sense. The Plaintiff claims that the Defendant's letter failed to clearly explain why the balance being sought is more than the total amount due plus the charges and fees since charge-off. The Defendant has violated 15 U.S.C. Section 1692e by falsely representing the character, amount, or legal status of the debt; by failing to state that the balance may increase despite that it could, or alternatively, implying that it will continue to increase when, in fact, it would not, the suit added. As a result of the Defendant's alleged deceptive, misleading and unfair debt collection practices, the Plaintiff has suffered emotional and physical harm, including stress, anxiety and restlessness. The Plaintiff brings this complaint as a class action on behalf of himself and all other similarly situated individuals seeking to recover statutory damages and actual damages from the Defendant, as well as costs together with reasonable attorneys' fees and expenses, pre- and post-judgment interest, and other relief as the Court may deem just and proper. MRS BPO, LLC is a debt collector. [BN] The Plaintiff is represented by: Robert Yusko, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Tel: (201) 282-6500 MULTI-COLOR CORP: Nagal Labor Suit Removed to N.D. California ------------------------------------------------------------- The case styled RAMON NAGAL, an individual, on behalf of himself and all others similarly situated, Plaintiff v. MULTI-COLOR CORPORATION, an Ohio corporation; and DOES 1 to 50, Defendants, Case No. C22CV000875, was removed from the Superior Court of California for the County of Napa to the U.S. District Court for the Northern District of California on Sept. 2, 2022. The Clerk of Court for the Northern District of California assigned Case No. 3:22-cv-05032 to the proceeding. The Plaintiff alleges ten causes of action including: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide rest periods and pay missed rest period premiums; (4) failure to provide meal periods and pay missed meal period premiums; (5) failure to maintain accurate employment records; (6) failure to pay wages timely during employment; (7) failure to pay wages upon ending employment; (8) failure to indemnify all necessary business expenditures; (9) failure to provide accurate wage statements; and, (10) unfair competition pursuant to California Business and Professions Code. Multi-Color Corporation provides various label solutions.[BN] The Corporate Defendant is represented by: Jennifer E. Douglas, Esq. Valerie R. Perdue, Esq. DICKENSON PEATMAN & FOGARTY P.C. 1500 First Street Suite 200 Napa, CA 94559 Telephone: (707) 524-7000 Facsimile: (707) 707-255-6876 E-mail: jdouglas@dpf-law.com vperdue@dpf-law.com - and - J. Timothy McDonald, Esq. Rudi Julius, Esq. THOMPSON HINE LLP Two Alliance Center 3560 Lenox Road, Suite 1600 Atlanta, GA 30326 Telephone: (404) 407-3623 Facsimile: (404) 541-2905 E-mail: Tim.McDonald@ThompsonHine.com Rudi.Julius@ThompsonHine.com MY PILLOW: Extension of Class Certification Deadline Sought ----------------------------------------------------------- In the class action lawsuit captioned as BETHANY GAUDREAU and JOSEPH RAM, individually and on behalf of all others similarly situated, v. MY PILLOW, INC., et al., Case No. 6:21-cv-01899-CEM-DAB (M.D.Fla.), the Plaintiffs ask the Court to enter an order extending the class certification deadline by 60 days, from September 8, 2022 to November 7, 2022, as follows: Event Current Requested Deadline Extension -- Deadline for moving for Sept. 8, 2022 Nov. 7, 2022 class certification: -- Deadline for Defendants' Oct. 10, 2022 Dec. 9, 2022 response: My Pillow is an American pillow-manufacturing company based in Chaska, Minnesota. The company was founded in 2009 by Mike Lindell, who invented and patented My Pillow, an open-cell, poly-foam pillow design. A copy of the Plaintiffs' motion dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3d7ZzmX at no extra charge.[CC] The Plaintiffs are represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 E-mail: mhiraldo@hiraldolaw.com - and - Rachel N. Dapeer, Esq. DAPEER LAW, P.A. 20900 NE 30th Avenue, Ste. 417 Aventura, FL 333180 Telephone: (305) 610-5223 E-mail: rachel@dapeer.com - and - Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. Christopher Gold, Esq. EDELSBERG LAW, P.A. 2875 NE 191 st St., Suite 703 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com chris@edelsberglaw.com NASHVILLE, TN: $1M Settlement in TCPA Class Action Gets Approval ---------------------------------------------------------------- Sam Stockard at tennesseelookout.com reports that an anti-tax group that targeted Nashville Mayor John Cooper and Metro Council members for recall will pay more than $1 million as part of a legal settlement after it used pre-recorded robocalls to contact Nashville voters in July 2020. Metro Nashville School Board member Rachael Anne Elrod, attorney Andrew Kaufman and Sarah Martin filed the complaint against No Tax 4 Nashville, Michelle Foreman, a Republican candidate for Tennessee House District 59, Karen Moore and 10 John Does two years ago in the midst of a quarrel over a property tax increase. Additionally, Brooks Brasfield filed a complaint against the group. Under the settlement approved by U.S. District Court Judge Eli Richardson, the defendants and third parties, Best Sellers, LLC, Heather Sellers, Joe Gergley and Hypermetrics agreed to pay $1,010,050 into a settlement fund, according to the court filing. The fund will provide about $200 to each Nashville voter who received a robocall during an effort to oust Cooper and council members from office when the council approved a property tax increase that year. Plaintiffs in the case contended the defendants violated the Telephone Consumer Protections Act by making auto-dialed and/or prerecorded calls to the cellular telephones of registered Metro Nashville voters. As part of the settlement, the defendants did not admit wrongdoing. [GN] NAVIENT SOLUTIONS: Court Denies Bid to Stay TRO in Homaidan Suit ---------------------------------------------------------------- In the cases, In re: Hilal Khalil Homaidan, aka Helal K. Homaidan, Chapter 7, Debtor. In re: Reeham Youssef, aka Reeham Navarro Youssef, aka Reeham N. Youssef, Chapter 7, Debtor. Hilal Khalil Homaidan on behalf of himself and all others similarly situated, and Reeham Youssef, Plaintiffs v. Sallie Mae, Inc., Navient Solutions, LLC, Navient Credit Finance Corporation, Defendants, Case Nos. 08-48275-ess, 13-46495-ess, Adv. Pro. No. 17-1085-ess (E.D.N.Y.), Judge Elizabeth S. Stong of the U.S. Bankruptcy Court for the Eastern District of New York denies the Motion to Stay Temporary Restraining Order filed by Navient Solutions, LLC, and Navient Credit Finance Corp. Before the Court is the motion for a stay pending appeal of the Court's TRO entered on July 11, 2022 by Navient Solutions and Navient Credit (together, "Navient"). Navient seeks a stay of the Court's direction that it ceases its collection efforts on "Tuition Answer Loans" that "exceed the cost of attendance" as defined by Internal Revenue Code Section 221(d), and that have an outstanding loan balance subject to collection held by the Plaintiffs and the members of a putative nationwide class of borrowers who received discharges in bankruptcy. Navient makes several arguments in support of its motion. As a threshold matter, Navient states that the Court lacks the jurisdiction to address violations of discharge orders entered by other bankruptcy courts. It also argues that the TRO was not warranted, as the Plaintiffs cannot establish a likelihood of success on the merits because, among other reasons, each member of the putative class certified on their loan documents that their loans were within the cost of attendance at a Title IV institution. Further, Navient argues that the Plaintiffs substantially delayed in seeking a TRO, and therefore the Court lacked the authority to issue the order. And finally, it argues that the public interest weighs in favor of staying the TRO, as injunctive relief may harm certain members of the putative class and reward unscrupulous borrowers. On Dec. 4, 2008, Hilal Khalil Homaidan, aka Helal K. Homaidan, filed a petition for relief under Chapter 7 of the Bankruptcy Code, Case No. 08-48275. On Dec. 19, 2008, Mr. Homaidan filed his schedules and statements, and on March 9, 2009, he filed certain amended schedules. EIn his Schedule F, "Creditors Holding Unsecured Nonpriority Claims," he listed "Tuition Answer" loans owed to Sallie Mae in the amounts of $7,983.19 and $8,190.11. On Jan. 15, 2009, the Chapter 7 Trustee filed a "no-asset" report stating that "the estate has no non-exempt property to distribute." On April 9, 2009, the Court entered an order discharging Mr. Homaidan, and on that same day, his bankruptcy case was closed. On April 14, 2017, Mr. Homaidan moved to reopen his bankruptcy case to obtain a determination of the dischargeability of certain of his student loans, and on May 26, 2017, the Court entered an order reopening the case. On Oct. 29, 2013, Reeham Youssef, aka Reeham Navarro Youssef, aka Reeham N Youssef, filed a petition for relief under Chapter 7 of the Bankruptcy Code. On Oct. 29, 2013, she filed her schedules and statements.In her Schedule F, "Creditors Holding Unsecured Nonpriority Claims," she listed "Student Loans" owed to Sallie Mae in the amounts of $9,055, $13,413, $6,415, $35,580, $23,596, $4,095, $16,275 and $29,493. On Dec. 13, 2013, the Chapter 7 Trustee filed a "no-asset" report stating that "the estate has no non-exempt property to distribute." On Feb. 6, 2014, the Court entered an order discharging Ms. Youssef, and on that same day, her bankruptcy case was closed. On Oct. 1, 2019, Ms. Youssef moved to reopen her bankruptcy case to obtain a determination of the dischargeability of certain of her student loans, and on Dec. 4, 2019, the Court entered an order reopening the case. On June 23, 2017, Mr. Homaidan commenced this adversary proceeding as a putative class action, on behalf of himself and others similarly situated, by filing a complaint against SLM Corp., Sallie Mae, Inc., Navient Solutions, LLC, and Navient Credit Finance Corporation. As to himself, Mr. Homaidan seeks a determination that certain debts that he incurred as a student are not nondischargeable student loan debts under Bankruptcy Code Section 523(a)(8)(B), and an award of damages, including attorneys' fees and costs, for the Defendants' willful violations of the bankruptcy discharge order entered in his case. And as to the class, he seeks the same the relief. On Aug. 23, 2021, the Court entered an Order assigning the Adversary Proceeding to mediation. And on Sept. 7, 2021, it entered a Stipulation and Mediation Order, where the parties jointly accepted Eric Green of Resolutions LLC to provide mediation services. On April 7, 2022, the Plaintiffs filed a motion for a TRO. On July 8, 2022, the Court issued a memorandum decision on the TRO Motion, granting in part the TRO Motion to the extent that it enjoined Navient from taking any acts to collect on Tuition Answer Loans held by the Plaintiffs and putative class members, as the class is described in the Amended Complaint, that exceed the cost of attendance as defined by Internal Revenue Code Section 221(d), and that have an outstanding balance subject to collection. And on that same day, the Court issued the TRO, in accordance with the TRO Decision. On July 25, 2022, Navient filed a notice of appeal to the District Court of the Court's TRO, and the Motion to Stay Temporary Restraining Order. On July 26, 2022, Navient filed a Notice of Motion to Stay Temporary Restraining Order. On Aug. 23, 2022, the Plaintiffs filed a Memorandum of Law in Opposition to Defendants' Motion to Stay Temporary Restraining Order. And on Aug. 26, 2022, Navient filed a reply brief in support of the Motion. On Aug. 29 and 31, 2022, the Court held oral argument on the Motion to Stay, at which the parties, by counsel, appeared and were heard, and the record is now closed. In view of the nature of the relief sought in the Motion to Stay, it is helpful to summarize the principal allegations of the Amended Complaint. The Plaintiffs, on behalf of themselves and all others similarly situated, seek a declaratory judgment, injunctive relief, and damages arising from Sallie Mae. Inc. and Navient's alleged "pattern and practice" of violating the discharge injunction provided by Bankruptcy Code Section 542(a)(2). The Plaintiffs allege that for the last 10 years, the Defendants have engaged in a massive effort to defraud student debtors and to subvert the orderly working of the bankruptcy courts." They allege that the Defendants represented to student debtors that the Bankruptcy Code prohibited discharge of any loan made to any person for any educational purpose. They claim that the Defendants "failed to disclose facts and information that would inform debtors of the fact that private loans were only non-dischargeable if they met the requirements of section 523(a)(8)(B), and in particular, that Class Members' nonqualified loans were, in fact, discharged in bankruptcy." And the Plaintiffs state that the Defendants utilized bankruptcy laws "to defraud vulnerable and unsophisticated student borrowers." They allege that the "Defendants either misrepresented or failed to disclose facts and information related to the dischargeability of private loans," and that the Defendants did not make the same misrepresentations "to more sophisticated parties." The Plaintiffs request that the Court declare that their debts were discharged upon the entry of the applicable statutory bankruptcy discharge injunctions, because they are not student loans excluded from discharge under Bankruptcy Code Section 523(a)(8). They seek permanent injunctive relief prohibiting the Defendants from continuing to seek collection on the Plaintiffs and Class Members' discharged debts. The Plaintiffs also request that since the Defendants were notified of their discharge orders pursuant to Bankruptcy Rule 4004(g), and still sought to collect on these debts by use of "dunning letters, phone calls, negative reports made to credit bureaus, failure to update credit reports, and commencing or continuing legal action to recover these debts in violation of Bankruptcy Code Section 524," the Court should cite the Defendants for civil contempt for their willful violations of the Discharge Order, and order them to pay damages in an amount to be determined at trial pursuant to Bankruptcy Code Sections 524 and 105, and also to pay his attorneys' fees and costs. As stated in the Amended Complaint, the Plaintiffs seek to maintain the action on behalf of themselves and as representatives of Putative Class Members who: obtained private Tuition Answer Loans in amounts that exceeded the Cost of Attendance; were never issued or designated to be issued 1098-E tax forms to deduct the interest payments from their federal tax returns; have never reaffirmed any pre-petition Tuition Answer loan; and have nonetheless been subjected to Defendants' attempts to induce payment on discharged debts and have or have not repaid these loans since bankruptcy. Navient makes several arguments in support of the Motion to Stay. At the outset, it states that under Bankruptcy Rule 8007, a party may move in the bankruptcy court for the suspension of proceedings in a case or other relief permitted by Rule 8007(e). It argues that it is likely to succeed on the merits of its appeal because the Court lacked authority to grant class-wide relief. It also argues that it has a strong likelihood of prevailing on its position that the Court erred in enjoining Navient on a class-wide basis before determining whether a class could ever be certified. Navient argues that by entering the TRO before certifying the class and providing notice, the Court has put absent class members at substantial risk of harm without any meaningful opportunity to protect their interests. And finally, it contends that this Court lacked authority to grant relief on a record devoid of supporting evidence. The Plaintiffs oppose Navient's request for a stay pending appeal, on several grounds. Among other things, they argue thatthere is no likelihood of success on Navient's motion for leave to appeal. Next, they contend that there is no likelihood of success on the merits of an appeal. They also argue that the Court specifically found that it possessed the authority to enter the TRO on behalf of a nationwide class. They then assert that Navient's argument that the Court lacked authority to grant class-wide relief prior to certification is not compelling. And, whether Navient will be irreparably injured absent a stay, it will not suffer any irreparable injury. Navient replies, among other things, that (i) it has a strong likelihood of prevailing on the merits of its appeal; (ii) the Court lacked the authority to grant class-wide relief; (iii) it is likely to succeed on the merits of its appeal because the Court lacked authority to grant relief on "a record devoid of supporting evidence; (iv) it is likely to prevail since both Mr. Homaidan and Ms. Youssef certified to Navient in the applicable loan documents that their respective loans were within the cost of attendance and that they were borrowing the funds to pay qualified education expenses; (v) the Plaintiffs' claims will still likely fail based on the current record, because they have offered no evidence that it is actually collecting or will collect on any loan where the amount disbursed to the borrower exceeds the actual cost of attendance; (vi) it has a likelihood of success on its appeal because the Court lacked authority to grant relief through a non-compliant order; and (vii) without defining "acts to collect," the TRO does not tell it what it is required to do, or what it is prohibited from doing, in order to comply with its terms. Judge Stong holds that on this Motion for a Stay, Navient has presented many arguments that are familiar to the Court and the parties, and several additional arguments as well. Motions such as this, she says, provide the Court with an opportunity to revisit the arguments and issues in the case, thoughtfully to consider and reconsider those arguments and the Court's prior analysis and conclusions, and where appropriate, to modify or amend its prior assessments of the record. And the Court has done so. In addition, this Motion for a Stay permits the Court carefully to consider whether the temporary and interim relief provided in the TRO is warranted by the record, and warranted immediately -- or alternatively, whether it should be stayed so that Navient can pursue an appeal. And based on the entire record, and after careful and thorough consideration of all of the arguments and authorities that have been presented, Judge Stong concludes that the TRO should not be stayed. She holds that Navient has not made a strong showing that it is likely to succeed on the merits of its appeal. Nor has it shown that it will suffer irreparable injury in the absence of a stay, or that the Plaintiffs will not suffer substantial injury if a stay of the TRO is issued. And finally, Navient has not shown that the public interest weighs in favor of a stay pending appeal. Judge Stong says it is worth noting that, at the time the TRO was entered, the Court delayed the effective date of the relief for sixty days, in accordance with Navient's representations that it would take 60 days to comply with a direction to cease its collection activities on the loans that are at issue -- private student loans that exceed the cost of attendance and therefore are outside the scope of Section 523(a)(8)(B)'s exclusion from discharge. So, while that date is now imminent, Navient has had the notice that it indicated it would need to be able to comply. For the reasons she stated, and based on the entire record, Judge Stong denies Navient's Motion to Stay Temporary Restraining Orde. An order in accordance with her Memorandum Decision will be entered simultaneously therewith. A full-text copy of the Court's Sept. 2, 2022 Memorandum Decision is available at https://tinyurl.com/mryna9zr from Leagle.com. George F. Carpinello, Esq. -- gcarpinello@bsfllp.com -- Adam Shaw, Esq. -- ashaw@bsfllp.com -- Robert C. Tietjen, Esq. -- RTietjen@lawcdm.com -- Boies Schiller Flexner LLP, in Albany, New York, Attorneys for the Plaintiffs. Thomas M. Farrell, Esq. -- tfarrell@mcguirewoods.com -- McGuire Woods LLP, JPMorgan Chase Tower, in Houston, Texas, Attorneys for the Defendants. Jason W. Burge, Esq. -- JBurge@fishmanhaygood.com -- Kathryn J. Johnson, Esq., Fishman Haygood LLP, in New Orleans, Louisiana, Attorneys for the Plaintiffs. Shawn R. Fox, Esq. -- sfox@mcguirewoods.com -- Joseph A. Florczak, Esq. -- jflorczak@mcguirewoods.com -- Dion W. Hayes, Esq. -- dhayes@mcguirewoods.com -- K. Elizabeth Sieg, Esq. -- bsieg@mcguirewoods.com -- McGuireWoods LLP, in New York City, Attorneys for the Defendants. Lynn E. Swanson, Esq. -- lswanson@jonesswanson.com -- Peter N. Freiberg, Esq. -- PFreiberg@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC, in New Orleans, Louisiana, Attorneys for the Plaintiffs. NEW YORK: Marciano Files Bid for Writ of Injunction w/ Supreme Ct. ------------------------------------------------------------------ ANTHONY MARCIANO filed on August 25, 2022, a petition for writ of injunction - which was assigned case number 22-178 - asking the U.S. Supreme Court to review the judgment of the United States Court of Appeals for the Second Circuit in the case captioned Anthony Marciano, Applicant vs. Eric Adams, Mayor of the City of New York, et al., Case No. 22-570. The Plaintiff, individually and on behalf of all others similarly situated, brought this class action suit against the Defendant to strike down an Emergency Use Authorized (EUA) COVID-19, adult-vaccination-mandate being imposed on him, and all New York City municipal workers, as a newly, created condition of employment with the City of New York. The EUA COVID-19 vaccination mandate at issue requires all NYC municipal employees to either submit to a COVID 19 vaccination, or be fired, losing any accrued time, vested pension, health benefits, and sadly, ending many careers. A State Court Temporary Restraining Order (TRO) was granted to the Plaintiff on December 14, 2020. On December 29, 2021, the U.S. District Court for the Southern District of New York granted the Defendants' motion to vacate the TRO. Defendants moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of standing and failure to state a claim, respectively. On March 8, 2022, Judge Jed S. Rakoff denied the Defendants motion to dismiss for lack of subject matter jurisdiction, but granted their motion to dismiss for failure to state a claim, and the complaint was dismissed with prejudice. The Plaintiff filed a request for a stay pending appeal, which the U.S. Court of Appeals for the Second Circuit denied on August 2, 2022. The Plaintiff now comes before the Supreme Court seeking a stay, reinstating the dissolved State Court TRO, while his current appeal is pending in the Second Circuit. [BN] Plaintiff-Applicant ANTHONY MARCIANO, individually and on behalf of all others similarly situated, is represented by: Patricia Finn, Esq. PATRICIA FINN ATTORNEY, P.C. 58 East Route 59, Suite 4 Nanuet, NY 10954 Telephone: (845) 398-0521 E-mail: patriciafinnattorney@gmail.com Defendants-Respondents ERIC ADAMS, et al., are represented by: Richard Paul Dearing, Esq. NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 E-mail: rdearing@law.nyc.gov NICKO'S PIZZA: Sullivan Sues Over Unpaid Wages, Unreimbursed Costs ------------------------------------------------------------------ GARTH SULLIVAN, individually and on behalf of similarly situated persons, Plaintiff v. NICKO'S PIZZA, INC., and STEPHEN L. GFELL, Defendants, Case No. 1:22-cv-01534-CAB (N.D. Ohio, August 30, 2022) alleges the Defendants of willful violations of the Fair Labor Standards Act (FLSA). The Plaintiff was employed by the Defendants from approximately January 2019 to January 2021 as a delivery driver at the Defendants' Domino's store located in Wellington, Ohio. The Plaintiff asserts that the Defendant has maintained a reimbursement policy, which reimburses delivery drivers' expenses below the IRS business mileage reimbursement rate and/or much less than a reasonable approximation of its drivers' automobile expenses. As a result of the Defendant's failure to adequately reimburse automobile expenses, the Plaintiff and other similarly situated delivery drivers' net wages diminished beneath the federal minimum wage requirements. The Plaintiff brings this complaint as a collective action against the Defendants to recover compensatory damages, liquidated damages, costs of litigation and attorney's fees, pre- and post-judgment interest, and other relief as the Court deems fair and equitable. Nicko's Pizza, Inc. operates numerous Domino's franchise stores. Stephen L. Gfell is the owner of the Corporate Defendant. [BN] The Plaintiff is represented by: Matthew R. McCarley, Esq. FORESTER HAYNIE, PLLC 400 N. St. Paul St., Suite 700 Dallas, TX 75201 Tel: (214) 210-2100 Fax: (469) 399-1070 E-mail: mccmat2000@yahoo.com NORTH CENTRAL: $705K Class Settlement in Compton Suit Has Final OK ------------------------------------------------------------------ In the case, MICHAEL DEREK COMPTON, individually, and on behalf of other similarly situated persons, Plaintiff v. NORTH CENTRAL VIRGINIA RESTAURANTS, INC. d/b/a Papa John's Pizza, Defendant, Civil Action No. 5:20-cv-00073 (W.D. Va.), Judge Thomas T. Cullen of the U.S. District Court for the Western District of Virginia, Harrisonburg Division, grants the parties' Joint Motion for Settlement Approval. The lawsuit is a wage-and-hour lawsuit brought on behalf of a class of pizza-delivery drivers who worked at Papa John's Pizza stores owned and operated by the Defendant. The Plaintiff filed his complaint on Oct. 19, 2020, which he amended on Jan. 25, 2021. The amended complaint alleged that the Defendant failed to pay the federal minimum wage (Count I) and overtime wages (Count II) to its delivery drivers in violation of the Fair Labor Standards Act ("FLSA"). It also included a third count, under the Virginia Minimum Wage Law ("VMWL"), for failure to pay the state minimum wage. At bottom, the Plaintiff alleges that the Defendant paid delivery drivers at or close to minimum wage while, at the same time, requiring these delivery drivers to bear the costs related to their employment, including vehicle maintenance, insurance, and wear and tear, without reimbursing the delivery drivers for these expenses. These reimbursement practices, they allege, violated the FLSA and the VMWL. On both FLSA Counts, the Plaintiff moved to conditionally certify an FLSA collective of "all current and former delivery drivers of Defendant North Central Virginia Restaurants, Inc. d/b/a 'Papa John's' employed during the last three (3) years." The Court granted those motions, which the Defendant did not oppose. It also granted the Plaintiff's unopposed motion for Rule 23 class certification of a class "comprised of all current and former delivery drivers employed in the Commonwealth of Virginia at any time from Jan. 25, 2018 through the present." The parties litigated the case for 14 months. On Dec. 23, 2021, the parties filed a Joint Notice of Settlement, and, on Aug. 22, 2022, the parties moved for approval of the settlement now before the Court. The Settlement Agreement defines the collective for purposes of the FLSA claims as "Plaintiff and all delivery drivers employed by the Defendant who received a Notice of Collective Action Lawsuit and submitted a Consent to Join Form that was filed with the Court between July 1, 2021 and Oct. 1, 2021." And it defines the Rule 23 class for purposes of the VMWL claim as "all delivery drivers employed by the Defendant in the Virginia Stores, who received a Notice of Class Certification and Settlement following the Court's preliminary approval of this Agreement, who are provided a period of 60 days to consider the Notice, and who do not affirmatively opt-out of the Lawsuit." The Settlement Agreement includes a total settlement amount of $705,000. The parties will use this amount to pay for settlement administration costs, attorneys' fees (in the amount of no more than 1/3 of the total settlement amount ($232,650)), the Plaintiff's service award ($5,000), and other enumerated expenses ($63,774.79). The class counsel will divide the remainder among each member of the FLSA Collective Action and/or the VMWL Class Action "according to an equitable formula based on respective damages as calculated for work performed during the Lawsuit," subject to a minimum payment of $25. Funds associated with uncashed checks will be donated to the American Cancer Society. In exchange for that payment, the Settlement Agreement also includes the following release: Any and all individual, class, or collective wage-and-hour or overtime claims that were or could have been brought based on the specific factual allegations contained in the Lawsuit, that occurred or are alleged to have occurred at any time through the Approval Date, including without limitation claims for off-the-clock work, unpaid wages, unpaid overtime compensation and associated penalties, liquidated damages, interest, attorneys' fees or litigation costs or expenses, and further including all wage and hour claims under the Fair Labor Standards Act, the Virginia Minimum Wage Act, and the common law. The Defendant enters the Settlement Agreement "without admitting or conceding liability, wrongdoing, or damages" "for any of the claims raised in the Lawsuit." Judge Cullen opines that (i) certification of the collective action pursuant to 29 U.S.C. Section 216(b) is proper; (ii) the settlement is fair for purposes of Rule 23; (iii) the Settlement Agreement will also provide fair and reasonable compensation for the class counsel; (iii) the Court is unaware of any agreement or statement required to be identified, under Rule 23 or otherwise, that would hinder the successful imposition of this settlement; and (iv) the parties have a bona fide dispute. Accordingly, the parties' proposed Rule 23 Settlement is approved. An appropriate Notice of the settlement will be mailed to all class members as soon as practicable. As to the attorney's fees and expenses, Judge Cullen opines that an award of attorney's fees in the amount of 1/3 of the total settlement fund has been recognized as reasonable within this Circuit multiple times with respect to claims against other pizza delivery companies. He also opines that the Plaintiffs' counsel incurred its expenses reasonably and necessarily in the prosecution of this action and that these expenses are customarily included in settlement awards. Accordingly, he finds that the Plaintiff's counsel's request for $232,650 in attorneys' fees and $63,774.74 in costs are reasonable. Finally, Judge Cullen finds that the Plaintiff's request for a service award of $5,000 as provided by the Settlement Agreement is reasonable. The Plaintiff provided valuable insight to the class counsel throughout the case, and his efforts have resulted in substantial payments to the class. There is nothing extraordinary about the settlement's $5,000 service award, especially when considering similarly settled cases. In conclusion, Judge Cullen finds the proposed settlement and attendant payment to the counsel and the Plaintiff to be reasonable and appropriate and enters an Order approving the settlement in all respects. The Clerk is directed to forward a copy of the Memorandum Opinion and accompanying Order to the parties. A full-text copy of the Court's Sept. 2, 2022 Memorandum Opinion is available at https://tinyurl.com/yckna6h6 from Leagle.com. OURISMAN CHEVROLET: Barmby Sues Over Failure to Pay Commissions --------------------------------------------------------------- JOHN SCOTT BARMBY, on behalf of himself and all others similarly situated, Plaintiff v. OURISMAN CHEVROLET CO., INC., D/B/A CHEVROLET MARLOW HEIGHTS; OURISMAN IMPORTS INC., D/B/A OURISMAN MITSUBISHI OF MARLOW HEIGHTS; H STREET MANAGEMENT LLC; and CHRISTOPHER OURISMAN, Defendants, Case No. 8:22-cv-02312-TJS (D. Md., September 12, 2022) is a class action against the Defendants for their failure to pay the Plaintiff and the putative class the commissions they are owed in violation of the Maryland Wage Payment Collection Law and in violation of common law prohibitions on unjust enrichment and breach of contract. Mr. Barmby was employed by the Defendants on a commission-based written pay plan from approximately 2013 to June 13, 2022. His most recent job title was finance operations manager. Ourisman Chevrolet Co., Inc., doing business as Chevrolet Marlow Heights, is a corporation that sells automobiles and related services, headquartered in Marlow Heights, Maryland. Ourisman Imports Inc., doing business as Ourisman Mitsubishi of Marlow Heights, is a corporation that sells automobiles and related services, headquartered in Marlow Heights, Maryland. H Street Management LLC is a management company based in Bethesda, Maryland. [BN] The Plaintiff is represented by: Brian J. Markovitz, Esq. Michal Shinnar, Esq. JOSEPH GREENWALD & LAAKE, PA 6404 Ivy Lane, Suite 400 Greenbelt, MD 20770 Telephone: (301) 220-2200 Facsimile: (301) 220-1214 - and - Jonathan Rudnick, Esq. THE LAW OFFICE OF JONATHAN RUDNICK LLC 788 Shrewsbury Avenue, Suite 204 Tinton Falls, NJ 07724 Telephone: (732) 842-2070 Facsimile: (732) 879-0213 PHARMACA INTEGRATIVE: Court Sets Case Deadlines in Guerra Suit -------------------------------------------------------------- In the class action lawsuit captioned as KRIS GUERRA v. PHARMACA INTEGRATIVE PHARMACY, INC., Case No. 5:22-cv-03259-NC (N.D. Cal.), the Hon. Judge Nathanael M. Cousins entered an order setting the following case deadlines as follows: -- The deadline to amend pleadings and add parties without further leave of Court is September 28, 2022. -- The Court encourages voluntary disclosure and early settlement discussions. As selected by the parties, this case is referred to private mediation for alternative dispute resolution, which is to be completed at a time, place and manner selected by the parties. -- Further case management conference: January 25, 2023, at 10:00 a.m. by telephone. The parties must file an updated joint case management statement by January 18, 2023, in accordance with Civil L.R. 16-10(d). -- Initial Disclosures must be made by September 21, 2022. Protective Order for Discovery: if desired, any proposed Protective to regulate the discovery process must be filed by September 14, 2022. -- All non-expert discovery must be completed by September 1, 2023. -- Motion for class certification The Plaintiff's Motion will be due March 1, 2023; The Defendant's Opposition due March 31, 2023; Reply due April 21, 2023; and Hearing May 3, 2023, at 2:00 p.m. by Zoom webinar. If the parties would prefer to advance and/or consolidate these deadlines, they may file a stipulation and proposed order by January 18, 2023. A copy of the Court's order dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3RYywtb at no extra charge.[CC] PROCTER & GAMBLE: Tampons Contain Titanium Dioxide, Fountain Says ----------------------------------------------------------------- ASHLEY FOUNTAIN, individually and on behalf of all others similarly situated, Plaintiff v. THE PROCTER & GAMBLE COMPANY and THIS IS L. INC., Defendants, Case No. 2:22-at-00915 (E.D. Cal., Sept. 2, 2022) is brought by the Plaintiff against Defendants individually and on behalf of a class of all others similarly situated for violation of California's Unfair Competition Law, violation of the Consumers Legal Remedies Act, breach of the implied warranty under Song-Beverly Consumer Warranty Act and California Commercial Code, violation of California's False Advertising Law, fraud, constructive fraud, fraudulent inducement, fraudulent omission or concealment, fraudulent misrepresentation, negligent misrepresentation, quasi-contract/unjust enrichment, breach of express warranty, and for violation of the Magnuson-Moss Warranty Act. The class action is brought on behalf of Plaintiff and similarly situated consumers who purchased for personal, family, or household use, Defendants' tampons sold under the brand name "L. Organic" which are unfit for menstrual use because they contain titanium dioxide, a known toxin sufficient to render Defendants' marketing of the products as "organic" and "natural" false, misleading and deceptive, says the suit. Based on Defendants' misrepresentations and omissions, a reasonable consumer would expect that the products are indeed natural, organic, and clean, contain no synthetic ingredients, and can be safely purchased and used as marketed and sold. However, the products are not natural, organic and clean, and they contain various synthetic ingredients and pose a material health risk to unsuspecting consumers, the suit asserts. The Procter & Gamble Company is an American multinational consumer goods corporation headquartered in Cincinnati, Ohio.[BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. Elvia M. Lopez, Esq. Sean L. Litteral, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com elopez@bursor.com slitteral@bursor.com PROGRESSIVE UNIVERSAL: Scheduling Order Entered in Jones Suit ------------------------------------------------------------- In the class action lawsuit captioned as ERIC JONES, and HERBERT BOWENS, v. PROGRESSIVE UNIVERSAL INSURANCE COMPANY, and ARTISAN AND TRUCKERS CASUALTY COMPANY, Case No. 22-cv-364-pp (E.D. Wisc.), the Hon. Judge Pamela Pepper entered a scheduling order as follows: -- The parties shall exchange their September 16, 2022 Rule 26(a)(1) disclosures by the end of the day on: -- The Parties wishing to amend November 18, 2022 pleadings or join parties without leave of the court shall do so no later than the end of the day on: -- The parties shall complete all March 31, 2023 fact discovery no later than the end of the day on: -- The plaintiffs shall disclose April 14, 2023 the identities of expert witnesses along with reports and supporting documentation, no later than the end of the day on: -- The defendants shall disclose June 23, 2023 the identities of expert witnesses, along with reports and supporting documentation, no later than the end of the day on: -- The plaintiffs shall file their April 14, 2023 motion for class certification by the end of the day on: -- The defendants shall file their June 23, 2023 opposition by the end of the day on: -- The plaintiffs shall file July 28, 2023 their reply in support of the motion by the end of the day on: -- A party wishing to file November 30, 2023 dispositive motions must do so by the end of the day on: -- The parties shall file a November 30, 2023 joint status report by: Progressive Universal operates as an insurance firm. The Company provides property and casualty insurance services. A copy of the Court's order dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3B5PE9w at no extra charge.[CC] PRUDENTIAL SECURITY: Cowley Appeals FLSA Suit Dismissal to 6th Cir. ------------------------------------------------------------------- JOSHUA COWLEY is taking an appeal from a court ruling dismissing his lawsuit entitled Joshua Cowley, Plaintiff, v. Prudential Security, Inc., Defendant, Case No. 2:21-cv-10491, in the U.S. District Court for the Eastern District of Michigan. The Plaintiff, individually and on behalf of all others similarly situated, filed a class action suit against the Defendant for violation of the Fair Labor Standards Act. On June 11, 2021, the Court ordered the dismissal of the case for lack of prosecution. On July 2, 2021, the Plaintiff filed a motion for relief from dismissal, which the Court denied through an Order entered by District Judge Stephen J. Murphy, III on September 28, 2021. The Plaintiff appealed to the United States Court of Appeals for the Sixth Circuit on October 8, 2021. On June 15, 2022, the Sixth Circuit issued its opinion and judgment, vacating the district court ruling and remanding the case. On July 7, 2022, the Sixth Circuit rendered its mandate on the matter. On July 27, 2022, Judge Murphy dismissed the case without prejudice. The appellate case is captioned as Joshua Cowley v. Prudential Security, Inc., Case No. 22-1760, in the United States Court of Appeals for the Sixth Circuit, filed on August 30, 2022. The briefing schedule in the Appellate Case states that: -- Appellant's brief is due on October 11, 2022; and -- Appellee's brief is due on November 10, 2022. [BN] Plaintiff-Appellant JOSHUA COWLEY, individually and on behalf of all others similarly situated, is represented by: Caroline N. Cohen, Esq. SCHNEIDER, WALLACE, COTTRELL & KONECKY 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Defendant-Appellee PRUDENTIAL SECURITY, INC., is represented by: Dominic Nathan Hamden, Esq. LAW OFFICE 18 W. Main Street Milan, MI 48160 Telephone: (734) 439-8884 - and - Lisa M. Reimbold, Esq. CLARK HILL 1055 W. Seventh Street, 24th Floor Los Angeles, CA 90017 Telephone: (213) 891-9100 - and - Brian D. Shekell, Esq. CLARK HILL 500 Woodward Avenue, Suite 3500 Detroit, MI 48226 Telephone: (313) 965-8803 ROMEO POWER: Court Narrows Claims in Nichols Suit ------------------------------------------------- Romeo Power, Inc. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that the court entered an order granting in part and denying in part the motion to dismiss the amended complaint captioned "Nichols v. Romeo Power Inc.," No. 21-cv-3362-LGS. On April 16, 2021, plaintiff Travis Nichols filed a class action complaint against Romeo Power, Inc. (formerly RMG Acquisition Corp.), its officers Lionel E. Selwood, Jr. and Lauren Webb and its directors Robert S. Mancini, Philip Kassin, D. James Carpenter, Steven P. Buffone, W. Grant Gregory, W. Thaddeus Miller, and Craig Broderick in the United States District Court for the Southern District of New York, captioned "Nichols v. Romeo Power Inc.," No. 21-cv-3362-LGS. On July 15, 2021, the Court entered an order consolidating the Nichols and Toner actions under the caption "In re Romeo Power Inc. Securities Litigation," No. 21-cv-3362-LGS and appointing Mike Castleberg as lead plaintiff and Glancy Prongay & Murray LLP as lead counsel. On September 15, 2021, plaintiffs filed an Amended Class Action Complaint for Violations of the Federal Securities Laws against the same Defendants alleging violations of Sections 10(b), 14(a), and 20(a) of the Exchange Act and SEC Rules 10b-5 and 14a promulgated thereunder. The Amended Complaint alleges that Defendants made false and misleading statements regarding the status of Romeo's battery cell supply chain and Romeo's ability to meet customer demand, fulfill its revenue backlog, and achieve its revenue forecast for 2021. Defendants filed a Motion to Dismiss the Amended Complaint on November 5, 2021. On June 2, 2022, the Court entered an order granting in part and denying in part the Motion. The Court dismissed all claims against the RMG Director Defendants, finding that they were (if anything) derivative claims and not adequately pled. But the Court denied the motion as to claims against Romeo, Selwood, and Webb and allowed the case to proceed with respect to at least one statement – whether Romeo had two or four suppliers at the time of the deSPAC. Romeo Power, Inc. is an energy technology into electrification solutions for vehicle applications based in California. ROMEO POWER: Court Narrows Claims in Toner Suit ----------------------------------------------- Romeo Power, Inc. disclosed in its Form 10-Q Report for the quarterly period ended June 30, 2022, filed with the Securities and Exchange Commission on August 8, 2022, that the court entered an order granting in part and denying in part the motion to dismiss the amended complaint "Toner v. Romeo Power, Inc.," No. 21-cv-4058. On May 6, 2021, plaintiff Victor J. Toner filed a second class action complaint against the same defendants in the Southern District of New York, captioned "Toner v. Romeo Power, Inc.," No. 21-cv-4058. The complaints generally allege violations of Section 10(b) of the Securities and Exchange Act of 1934 and SEC Rule 10b-5 promulgated thereunder. On July 15, 2021, the Court entered an order consolidating the Nichols and Toner actions under the caption "In re Romeo Power Inc. Securities Litigation," No. 21-cv-3362-LGS and appointing Mike Castleberg as lead plaintiff and Glancy Prongay & Murray LLP as lead counsel. On September 15, 2021, plaintiffs filed an Amended Class Action Complaint for Violations of the Federal Securities Laws against the same Defendants alleging violations of Sections 10(b), 14(a), and 20(a) of the Exchange Act and SEC Rules 10b-5 and 14a promulgated thereunder. The Amended Complaint alleges that Defendants made false and misleading statements regarding the status of Romeo's battery cell supply chain and Romeo's ability to meet customer demand, fulfill its revenue backlog, and achieve its revenue forecast for 2021. Defendants filed a Motion to Dismiss the Amended Complaint on November 5, 2021. On June 2, 2022, the Court entered an order granting in part and denying in part the Motion. The Court dismissed all claims against the RMG Director Defendants, finding that they were (if anything) derivative claims and not adequately pled. But the Court denied the motion as to claims against Romeo, Selwood, and Webb and allowed the case to proceed with respect to at least one statement – whether Romeo had two or four suppliers at the time of the deSPAC. Romeo Power, Inc. is an energy technology into electrification solutions for vehicle applications based in California. SAMSUNG ELECTRONICS: Zortea MMWA Suit Goes to W.D. Pennsylvania --------------------------------------------------------------- The case styled MONICA ZORTEA, et al., individually and on behalf of all others similarly situated v. SAMSUNG ELECTRONICS AMERICA, INC. and SAMSUNG ELECTRONICS CO., LTD., Case No. GD-22-00301, was removed from the Court of Common Pleas of Allegheny County, Pennsylvania, to the U.S. District Court for the Western District of Pennsylvania on September 12, 2022. The Clerk of Court for the Western District of Pennsylvania assigned Case No. 2:22-cv-01309-CB to the proceeding. The case arises from the Defendants' alleged violation of the Magnuson-Moss Warranty Act by requiring consumers to seek repairs only from authorized service providers or use only Samsung-branded replacement parts for repairs. Samsung Electronics America, Inc. is a manufacturer of electronic products, headquartered in Ridgefield Park, New Jersey. Samsung Electronics Co., Ltd. is a manufacturer of electronic products, headquartered in South Korea. [BN] The Defendants are represented by: Michael A. Comber, Esq. S. Wesley Gorman, Esq. REISINGER COMBER & MILLER, LLC 300 Koppers Building 436 Seventh Avenue Pittsburgh, PA 15219 Telephone: (412) 894-1380 Facsimile: (412) 291-2109 E-mail: mcomber@reisingercomber.com wgorman@reisingercomber.com - and – Thomas R. Waskom, Esq. HUNTON ANDREWS KURTH LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA 23219-4074 Telephone: (804) 788-8200 Facsimile: (804) 788-8218 E-mail: twaskom@HuntonAK.com - and – Ryan P. Phair, Esq. HUNTON ANDREWS KURTH LLP 2200 Pennsylvania Avenue NW Washington, DC 20037 Telephone: (202) 955-1500 Facsimile: (202) 778-2201 E-mail: rphair@HuntonAK.com SANOFI-AVENTIS US: Court Grants Joint Bid to Dismiss Mosaic Suit ---------------------------------------------------------------- In the case, MOSAIC HEALTH INC., and CENTRAL VIRGINIA HEALTH SERVICES, INC., individually and on behalf of all those similarly situated, Plaintiffs v. SANOFI-AVENTIS U.S., LLC, ELI LILLY AND COMPANY, LILLY USA, LLC, NOVO NORDISK INC., and ASTRAZENECA PHARMACEUTICALS LP, Defendants, Case No. 6:21-CV-06507 EAW (W.D.N.Y.), Judge Elizabeth A. Wolford of the U.S. District Court for the Western District of New York grants the Defendants' joint motion to dismiss but conditionally grants the Plaintiffs' request for leave to file a second amended complaint. Plaintiffs Mosaic Health and Central Virginia Health Services ("CVHS") allege that the defendant pharmaceutical companies have violated state and federal antitrust laws by coordinating to rescind a long-standing discount for "safety-net" hospitals and clinics that treat patients who would otherwise be unable to obtain care. Mosaic Health is a nonprofit healthcare organization with its principal place of business in Rochester, New York. It is "a federally qualified health center that receives funds from the U.S. Department of Health and Human Services, Health Resources and Services Administration to provide healthcare services to people residing in medically underserved areas, regardless of their ability to pay" and operates 22 safety-net clinics. CVHS is a nonprofit healthcare organization with its principal place of business in New Canton, Virginia. It is "a federally qualified health center that receives funds from the U.S. Department of Health and Human Services, Health Resources and Services Administration to provide healthcare services to people residing in medically underserved areas, regardless of their ability to pay" and operates 18 safety-net clinics. In 1992, Section 340B of the Public Health Service Act, 42 U.S.C. Section 256b, created the "340B Drug Discount Program," which "requires discounts on outpatient drugs purchased by healthcare providers serving underserved populations." Since its inception, the 340B Drug Discount has been a defined discount, specific to each drug, calculated by the 340B Drug Discount Program." Since at least 1996, and in greater volumes since 2010, all drug companies participating in the 340B Drug Discount Program have offered Contract Pharmacy 340B Drug Discounts to covered entities. To do so, drug companies have offered covered entities the 340B Drug Discount on covered outpatient drugs purchased on the covered entities' own accounts but shipped to their registered Contract Pharmacy sites. Diabetes is often coincident with low-income populations and in lower-income neighborhoods that are underserved by private healthcare practices and is a common area of treatment for 340B covered entity hospitals and clinics. Consequently, diabetes medications make up a significant portion of 340B covered entities' outpatient prescriptions and 340B Drug Discounts. And three of the most significant diabetes medications are rapid-acting analog insulins, long-acting analog insulins, and incretin mimetics. The Defendants "dominate three of today's most lucrative markets for diabetes treatments: (i) rapid-acting analog insulins; (ii) long-acting analog insulins; and (iii) incretin mimetics. Defendants compete against each other, as horizontal competitors, in these markets." Sanofi, Eli Lilly, and Novo Nordisk compete in the sale of rapid-acting analog insulins and long-acting analog insulins. Sanofi, Eli Lilly, Novo Nordisk, and AstraZeneca compete in the sale of incretin mimetics. These products collectively represent "hundreds of millions or billions of dollars in annual sales for each company." In 2020, the Defendants spent millions of dollars "collectively lobbying the federal government to limit 340B Drug Discounts with respect to diabetes medicines." However, those efforts were largely unsuccessful. On July 24, 2020, then-President Donald Trump issued Executive Order 13937, which "addressed the use of insulin (as well as epinephrine) within the 340B Drug Discount Program," but was "extremely limited in scope." "Executive Order 13937 promised to have relatively little impact on the volume of 340B Drug Discounts for insulin medications." On July 24, 2020, AstraZeneca advised the United States Department of Health and Human Services ("HHS") that it intended to limit contract pharmacy 340B drug discounts. More particularly, AstraZeneca stated that beginning Oct. 1, 2020, and for certain of its products, it would "recognize one contract pharmacy per covered entity for those covered entities that do not maintain an on-site dispensing pharmacy." On July 27, 2020, Sanofi informed all 340B Drug Discount Program covered entities that it would be implementing a new initiative that would "cut off all Contract Pharmacy 340B Drug Discounts, which had been in place for a decade, unless covered entities provided new consideration to Sanofi." "The newly required consideration was entry into a contract to provide sensitive prescription claims data to a Sanofi vendor through a software portal on commercially unreasonable terms." Sanofi announced that its new policy would take effect on Oct. 1, 2020. On Aug. 19, 2020, Eli Lilly advised HHS that effective Sept. 1, 2020, it would discontinue voluntarily honoring requests for 340B contract pharmacies except "primarily" where a covered entity did not have an in-house pharmacy. It also "added a special exception to permit Contract Pharmacies to pass along certain insulin products at cost," but "that exception was infeasible for covered entities and pharmacies, as it required the Contract Pharmacies to fill prescriptions without any fee whatsoever." On Dec. 1, 2020, Novo Nordisk advised HHS that "it would stop offering Contract Pharmacy 340B Drug Discounts to all hospital covered entities" effective Jan. 1, 2021. Mosaic Health commenced the putative class action on July 30, 2021. The amended complaint, which added CVHS as a plaintiff, was filed on Oct. 22, 2021. The Defendants filed their joint motion to dismiss the amended complaint on Nov. 12, 2021. They filed their joint motion to stay discovery pending resolution of the motion to dismiss on Nov. 24, 2021. The Plaintiffs opposed this motion on Dec. 20, 2021, and the Defendants filed a reply on Dec. 27, 2021. The Plaintiffs filed their opposition to the motion to dismiss on Jan. 7, 2022. Replies were filed on Feb. 4, 2022. The amended complaint sets forth the following claims: (1) violations of Section 1 of the Sherman Act, 15 U.S.C. Section 1; (2) "unreasonable restraint of trade" in violation of the laws of Arizona, California, Connecticut, the District of Columbia, Illinois, Iowa, Kansas, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Utah, West Virginia, and Wisconsin; and (3) unjust enrichment under the laws of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, the District of Columbia, Delaware, Florida, Georgia, Hawaii, Indiana, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin. The Plaintiffs seek both damages and injunctive relief with respect to their Sherman Act claim. The Defendants seek dismissal of all of the Plaintiffs' claims, arguing that: (1) the Plaintiffs lack standing to sue for damages under federal antitrust law pursuant to Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), because they are indirect purchasers of Defendants' drugs; (2) the Plaintiffs have failed to plausibly allege an agreement among Defendants; (3) the Plaintiffs' true claim "stems from their dissatisfaction with the terms on which contract pharmacies may access each Defendant's 340B drugs," but there is no private right of action under Section 340B; and (4) the Plaintiffs' state-law claims are deficiently pled for numerous reasons. Judge Wolford holds that the amended complaint contains no facts from which it can plausibly be concluded that the Defendants' disparate policies, which were adopted over the course of several months, had the same or even similar impacts on the availability of contract pharmacy 340B drug discounts to covered entities. The adoption of those policies accordingly does not constitute parallel conduct as alleged. The Defendants and the Plaintiffs also strenuously dispute whether the latter have plausibly alleged the presence of plus factors. However, plus factors without plausible allegations of parallel conduct are insufficient to establish an inference of an agreement. Accordingly, Judge Wolford need not and does not reach these additional arguments at this time. The Plaintiffs have also asserted claims under the antitrust laws of 25 states and the District of Columbia. The Defendants argue, and Plaintiffs do not dispute, that "each of the relevant state statutes requires plausible allegations of a conspiracy to restrain trade." The Plaintiffs' state antitrust claims thus fail for the same reason as their Sherman Act Section 1 claim -- they have not plausibly alleged the existence of a conspiracy. The Plaintiffs have further asserted unjust enrichment claims under the laws of 47 states and the District of Columbia. Judge Wolford agrees with the Defendants that these unjust enrichment claims are inadequately pled. The Court has previously held that the sort of "generic pleading" engaged in by the Plaintiffs -- whereby they "pleaded federal antitrust claims and the factual foundation for them, and then merely alleged that those claims are also actionable as unjust enrichment" does "not comply with the relevant pleading standards." Finally, in their opposition papers, yjr Plaintiffs state as follows: "To the extent the Court concludes that any claim or remedy is insufficiently pled, Plaintiffs respectfully request an opportunity to amend and replead." Judge Wolford says it "is not a proper motion for leave to amend, and fails to comply with the Local Rules of Civil Procedure with respect to the process for seeking to amend a pleading. However, she cannot, on the record before it, rule out the possibility that the Plaintiffs could successfully plead their claims. Accordingly, she conditionally grants their request for leave to amend, contingent on them filing a motion that comports with the requirements of the Local Rules of Civil Procedure and that includes a viable proposed second amended complaint, within 30 days of entry of the Decision and Order. In sum, Judge Wolford agrees with the Defendants that the Plaintiffs have failed to plausibly allege an agreement among the Defendants and that the federal and state antitrust claims accordingly fail. She further agrees that the Defendants have not complied with the applicable pleading standards with respect to their unjust enrichment claims. For these reasons, Judge Wolford grants the Defendants' joint motion to dismiss. She further conditionally grants the Plaintiffs' request for leave to file a second amended complaint, contingent on their filing of a procedurally proper motion for leave to amend that includes a viable proposed second amended complaint, within 30 days of entry of her Decision and Order. In the event such a motion is filed, the Court will enter a briefing schedule thereon. If no such motion is filed, the amended complaint will be dismissed with prejudice. Judge Wolford denies as moot the Defendants' motion to stay discovery pending resolution of its motion to dismiss. However, in light of her finding that all of the Plaintiffs' claims are subject to dismissal, she sua sponte orders that no further discovery will be conducted until the Plaintiffs' request for leave to amend is finally resolved. A full-text copy of the Court's Sept. 2, 2022 Decision & Order is available at https://tinyurl.com/8e68ckw8 from Leagle.com. SEMA4 HOLDINGS: Bronstein Reminds of Nov. 7 Lead Plaintiff Due -------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Sema4 Holdings Corp. ("Sema4" or the "Company") (NASDAQ: SMFR; SMFRW) and certain of its officers, on behalf of all persons and entities that purchased, or otherwise acquired Sema4 securities between March 14, 2022 and August 15, 2022, both dates inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/smfr. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that there was a significant risk that Sema4 would reverse a material amount of previously recognized revenue that it could not recoup from third party payors; (2) that the Company was experiencing declining selling prices for its reproductive health segment; (3) that, as a result of the foregoing, Sema4's financial results would be adversely affected; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/smfr or you may contact Peretz Bronstein, Esq. or his Law Clerk and Client Relations Manager, Yael Nathanson of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Sema4 you have until November 7, 2022 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC represents investors in securities fraud class actions and shareholder derivative suits. The firm has recovered hundreds of millions of dollars for investors nationwide. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] SHAUM'S CASABLANCA: Jones, et al., Seek FLSA Conditional Status --------------------------------------------------------------- In the class action lawsuit captioned as Sidney Jones and Crystal Williams, On Behalf of Themselves and All Other Similarly Situated Individuals, v. Shaum's Casablanca d/b/a Lady Godivas Casablanca, Case No. 6:22-cv-2307-TMC (D.S.C.), the Plaintiffs ask the Court to enter an order: 1. conditionally certifying their Proposed Fair Labor Standards Act (FLSA) Collective Action Class pursuant to FLSA Section 216(b), to include all individuals that worked or performed as exotic dancers at or in the Lady Godivas / Casablanca Gentlemen's Club during the period August 2019 through the present; 2. within 14 days of this Order, directing the Defendant shall produce to the Plaintiffs' counsel, in a usable electronic format, identifiers for all FLSA Class Members including each individual's full legal name; mailing address; cellular telephone number; and email address; 3. within 14 days of Plaintiffs' counsel's receipt of the Class Member identifiers from Defendant, directing the Plaintiffs' counsel (or a third-party administrator) to serve a copy of the Court Approved Notice and the Court Approved FLSA Opt-In Consent Form on each FLSA Class Member by first class mail; text message; and email; and 4. permitting each FLSA Class Member a 60 days from the date Plaintiffs' counsel's service of the Notice and FLSA Opt- In Consent Form to file her FLSA Opt-In Consent Form with the Court to join this action as an FLSA Opt-In Plaintiff. A copy of the Plaintiffs' motion dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3U4zYvY at no extra charge.[CC] The Plaintiffs are represented by: Jeremy R. Summerlin, Esq. HORTON LAW FIRM, P.A. 307 Pettigru Street Greenville, SC 29601 Telephone: (864) 233-4351 Facsimile: (864) 233-7142 E-mail: jsummerlin@hortonlawfirm.net - and - Gregg C. Greenberg, Esq. ZIPIN, AMSTER & GREENBERG, LLC 8757 Georgia Avenue, Suite 400 Silver Spring, MD 20910 Telephone: (301) 587-9373 E-mail: ggreenberg@zagfirm.com SIG SAUER: N.H. Judge Rejects Lawsuit Over Pistols' Design Defect ----------------------------------------------------------------- Todd Bookman at nhpr.org reports that a federal court judge has rejected a proposed class action lawsuit filed by an Arizona gun owner who argued his pistol, manufactured by Newington-based Sig Sauer, has lost value due to an alleged design flaw involving the weapon's trigger. The decision means Sig Sauer, for now, avoids a financial hit that could have reached into the tens of millions of dollars. The three-year long case centered on the claims of Derick Ortiz, a police officer from the town of Snowflake, A.Z, who said he wouldn't have purchased, or would have paid less, for his model P320 if he had been aware of alleged "drop fire" incidents, in which the gun fires without a trigger pull. Sig Sauer maintains the P320 is safe, but the company offers a free voluntary modification that swaps out certain components of the gun, including its trigger, in older models. U.S. District Judge Joseph Laplante wrote in a brief text order that "after careful and lengthy consideration of the briefing, oral argument, and supplemental briefing, the court denies the motion for class certification in its entirety." Laplante did not provide an explanation for his decision, instead noting that he will issue a complete written order at a later date. Lawyers for both Ortiz and Sig Sauer didn't respond to a request for comment. It isn't clear if Ortiz will appeal the order. The popular P320 pistol is used by law enforcement agencies across the country, and in 2017, was selected as the new sidearm for the U.S. Army, a contract worth up to $580 million. According to court records in the case, the Army discovered the P320 could fire when dropped at certain angles in 2016, prompting the company to modify its design. However, lawyers for Ortiz said the company continued to sell hundreds of thousands of P320s with the original design to the public and law enforcement agencies. In August 2017, online gun seller Omaha Outdoors published a video detailing its concerns about the P320's "extremely rare but still possible" potential for discharging when dropped. Immediately afterwards, Sig Sauer launched its voluntary upgrade, which retrofits the guns with a different trigger, as well as other components. In his class action lawsuit, Ortiz argued that the weapon he originally purchased for approximately $500 has a "significantly diminished resale value." Court transcripts show that an expert hired by Ortiz alleges the pistol's are now worth "roughly 25 percent" less due to the alleged trigger flaw. A similar proposed class action lawsuit was filed earlier this year in federal court in Missouri by a police officer seeking monetary damages for residents of that state who purchased a P320. According to court records in that matter, there have been at least 20 individual civil lawsuits against Sig Sauer nationwide filed by plaintiffs allegedly injured by an unintentional discharge of the gun. One of those cases ended earlier this month, involving a Hillsborough man who alleged his P320 discharged without a trigger pull, resulting in a serious leg injury. U.S District Judge Landya McCafferty ruled that Sig Sauer had not violated the state's Consumer Protection Act in how it markets the gun. Earlier this summer, a jury declined to award the same plaintiff, Kyle Guay, monetary damages. [GN] SOUTHCOAST HEALTH: Souza Civil Rights Suit Goes to D. Massachusetts ------------------------------------------------------------------- The case styled JONATHAN SOUZA, individually and on behalf of all others similarly situated v. SOUTHCOAST HEALTH SYSTEM, INC., Case No. 2273CV0496A, was removed from the Bristol County Superior Court of the Commonwealth of Massachusetts to the U.S. District Court for the District of Massachusetts on September 12, 2022. The Clerk of Court for the District of Massachusetts assigned Case No. 1:22-cv-11472 to the proceeding. The case arises from the Defendant's alleged violations of Title VII of the Civil Rights Act of 1964. Southcoast Health System, Inc. is an affiliation of three partner hospitals located in the southeastern portion of Massachusetts. [BN] The Defendant is represented by: Sarah B. Herlihy, Esq. Jeanette M. Martinez Figueroa, Esq. JACKSON LEWIS P.C. 75 Park Plaza, 4th Floor Boston, MA 02116 Telephone: (617) 367-0025 Facsimile: (617) 367-2155 E-mail: sarah.herlihy@jacksonlewis.com jeanette.martinezfigueroa@jacksonlewis.com SOUTHERN COMPANY: Drummond Balks at Denied ERISA-Protected Benefits ------------------------------------------------------------------- WILLIAM DRUMMOND, individually and on behalf of all others similarly situated, Plaintiff v. SOUTHERN COMPANY SERVICES, INC.; THE SOUTHERN COMPANY PENSION PLAN; and THE BENEFITS ADMINISTRATION COMMITTEE; Defendants, Case No. 2:22-cv-00174-RWS (N.D. Ga., Sept. 2, 2022) is a civil enforcement action brought under sections 502(a)(2) and 502(a)(3) of the Employee Retirement Income Security Act of 1974, concerning Defendants' violations of ERISA's actuarial equivalence, anti-forfeiture, and joint and survivor annuity requirements with respect to the Southern Company Pension Plan. The Plaintiff and the Classes are vested participants and/or beneficiaries of participants in the Southern Company Pension Plan, which denies them their full ERISA-protected pension benefits. Specifically, Plaintiff and Class members receive pension benefits in the form of a joint and survivor annuity -- a benefit that pays out a participant's annuity both for the participant's life and, once the participant dies, for the life of the participant's surviving spouse. According to the complaint, as part of the calculation of Plaintiff's and Class members' joint and survivor annuities, Defendants deducted a charge for the qualified preretirement survivor annuity (QPSA) benefit, which was directly applied to and reduced Plaintiff and Class members' joint and survivor annuities. As a result, Plaintiff and Class members have received and continue to receive less than the "actuarial equivalent" of their vested accrued benefit, contrary to ERISA. The Class members are additionally harmed by Defendants' disclosures because Class members did not receive accurate information that is mandated by law and thus made retirement decisions based on misimpressions about the value of benefits available to them and the reasonableness and actuarial equivalence of the Plan's actuarial assumptions, says the suit. Southern Company Services, Inc. provides electricity generation services.[BN] The Plaintiff is represented by: John T. Sparks, Sr., Esq. AUSTIN & SPARKS, P.C. 2974 Lookout Place, N.E., Suite 200 Atlanta, GA 30305 Telephone: (404) 869-0100 Facsimile: (404) 869-0200 E-mail: jsparks@austinsparks.com - and - Michelle C. Yau, Esq. Daniel R. Sutter, Esq. Eleanor Frisch, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave. NW Fifth Floor Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: myau@cohenmilstein.com dsutter@cohenmilstein.com efrisch@cohenmilstein.com - and - Peter K. Stris, Esq. John Stokes, Esq. STRIS & MAHER LLP 777 S. Figueroa St. Suite 3850 Los Angeles, CA 90017 Telephone: (213) 995-6800 Facsimile: (213) 261-0299 E-mail: pstris@stris.com jstokes@stris.com - and - Shaun P. Martin, Esq. 5998 Alcala Park Warren Hall San Diego, CA 92110 Telephone: (619) 260-2347 Facsimile: (619) 260-7933 E-mail: smartin@sandiego.edu - and - Todd Jackson, Esq. Nina Wasow, Esq. FEINBERG, JACKSON, WORTHMAN & WASOW, LLP 2030 Addison Street Suite 500 Berkeley, CA 94704 Telephone: (510) 269-7998 Facsimile: (510) 269-7994 SPICE & TEA EXCHANGE: Velazquez Files ADA Suit in S.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against The Spice & Tea Exchange Distribution, LLC. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. The Spice & Tea Exchange Distribution, LLC, Case No. 1:22-cv-07535 (S.D.N.Y., Sept. 2, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Spice & Tea Exchange Distribution -- https://www.spiceandtea.com/ -- offers gourmet spices, teas, sugars, salts, other organic products, accessories & recipes.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com SPIRIT AIRLINES: Improperly Denies FMLA Leave, Flannery Claims -------------------------------------------------------------- GRACE FLANNERY, on behalf of herself and all others similarly situated, Plaintiff v. SPIRIT AIRLINES, INC., Defendants, Case No. 0:22-cv-61651 (S.D. Fla., Sept. 2, 2022) is a class action brought by the Plaintiff seeking damages and declaratory relief on behalf of herself and all other similarly situated Spirit flight attendants pursuant to the Family and Medical Leave Act as well as individual claims to redress Plaintiff's own wrongful termination. According to the complaint, Spirit, a major commercial airline, instituted policies that violated the Family and Medical Leave Act, and effectively interfered with, restrained, or denied the exercise of or the attempt to exercise FMLA benefits by flight attendants. Moreover, when Plaintiff opposed Spirit's unlawful policies and practices, it retaliated against and eventually terminated her, says the suit. The Plaintiff was employed by Defendant as a flight attendant from March 27, 2014, until she was terminated on November 17, 2021.[BN] The Plaintiff is represented by: Nathan C. Zipperian, Esq. MILLER SHAH LLP 1625 N. Commerce Pkwy, Ste. 320 Fort Lauderdale, FL 33326 Telephone: (866) 540-5505 Facsimile: (866) 300-7367 E-mail: nczipperian@millershah.com - and - Chiharu G. Sekino, Esq. MILLER SHAH LLP 1230 Columbia Street, Suite 1140 San Diego, CA 92101 Telephone: (866) 540-5505 Facsimile: (866) 300-7367 E-mail: cgsekino@millershah.com - and - Monique Olivier, Esq. OLIVIER & SCHREIBER LLP 475 14th Street, Suite 250 Oakland, CA 94612 Telephone: (415) 484-0980 Facsimile: (415) 658-7758 E-mail: monique@os-legal.com STATE FARM: Scheduling Order Entered in Fleming Class Suit ---------------------------------------------------------- In the class action lawsuit captioned as Fleming v. State Farm Fire and Casualty Company, Case No. 3:22-cv-05195 (W.D. Wash.), the Hon. Judge Barbara J. Rothstein entered a scheduling order as follows: -- The Plaintiff's class certification-related expert disclosures shall be due April 7, 2023; -- The Defendant's class certification-related expert disclosures shall be due June 7, 2023; -- Depositions of expert witnesses shall be due by July 7, 2023; -- Close of Phase I of Discovery is July 7, 2023; -- The Plaintiff's Motion for Class Certification shall be due August 7, 2023; -- The Defendant's Opposition to Class Certification shall be due September 21, 2023; and -- The Plaintiff's Reply in Support of Class Certification shall be due October 21, 2023. The suit alleges breach of insurance contract. State Farm operates as an insurance company.[CC] STATE FARM: Sisia Appeals Insurance Suit Dismissal to 11th Circuit ------------------------------------------------------------------ KIMBERLY K. SISIA is taking an appeal from a court order dismissing her lawsuit entitled Kimberly Sisia, individually and on behalf of all others similarly situated, Plaintiff, v. State Farm Mutual Automobile Insurance Company, Defendant, Case No. 1:21-cv-02376-ELR, in the U.S. District Court for the Northern District of Georgia. The Plaintiff, individually and on behalf of all others similarly situated, brought this class action suit against the Defendant for breach of its insurance contract by denying contractual medical payments insurance coverage for payment of medical expenses incurred by its insureds, including the Plaintiff. On August 9, 2021, the Defendant filed a motion to dismiss the Plaintiff's complaint for failure to state a claim, which the Court granted through an Order entered by Judge Eleanor L. Ross on January 5, 2022. The Court ruled that the Plaintiff's claims are time-barred by the applicable statutes of limitations and must be dismissed. The Court dismissed the case with prejudice. In addition, the Court denied as moot Plaintiff's motion for conditional class certification. The appellate case is captioned Kimberly Sisia v. State Farm Mutual Automobile Insurance Company, Case No. 22-12833, in the United States Court of Appeals for the Eleventh Circuit, filed on August 24, 2022. [BN] Plaintiff-Appellant KIMBERLY K. SISIA, individually and on behalf of all others similarly situated, is represented by: James L. Ford, Sr., Esq. JAMES LEE FORD, PC 3330 Cumberland Blvd., Ste. 600 Atlanta, GA 30339 Telephone: (678) 281-8750 Defendant-Appellee STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, is represented by: Daniel F. Diffley, Esq. ALSTON & BIRD, LLP 1201 W. Peachtree St. NW, Ste. 4900 Atlanta, GA 30309-3424 Telephone: (404) 881-4703 STRATA EQUITY: Zito Appeals Suit Dismissal to 4th Circuit --------------------------------------------------------- SARA ZITO, et al., are taking an appeal from a court order dismissing their lawsuit entitled Sara Zito, et al., Plaintiffs, v. Strata Equity Group Inc., et al., Defendants, Case No. 2:20-cv-03808-BHH, in the U.S. District Court for the District of South Carolina. The Plaintiffs, individually and on behalf of all others similarly situated, brought this class action suit against the Defendants for breach of contract, negligence, unjust enrichment/quantum meruit, violation of the South Carolina Residential Landlord and Tenant Act, violation of the South Carolina Unfair Trade Practices Act, declaratory judgment, and injunctive relief. The Plaintiffs allege that the Defendants provide water and sewer services to their tenants through a patently unfair and illegal allocation formula, and that the Defendants are liable because they act as a regulated public utility but charge rates not approved by the South Carolina Public Service Commission. On November 30, 2020, the Defendants filed a motion to dismiss the Plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which Judge Bruce Howe Hendricks granted on September 10, 2021. The Court also entered judgment dismissing the case without prejudice based on the Plaintiffs' failure to exhaust their available administrative remedies. On October 8, 2021, the Plaintiffs filed a motion to alter judgment, asking the court to reconsider its ruling. Judge Hendricks, however, denied the request on July 18, 2022, saying, "A motion to alter or amend a judgment under Rule 59(e) is "an extraordinary remedy which should be used sparingly." Such a motion should be granted for only three reasons: (1) to follow an intervening change in controlling law; (2) on account of new evidence; or (3) to correct a clear error of law or prevent manifest injustice. After review, the Court finds that Plaintiffs' motion fails to demonstrate that relief is warranted for any of those three reasons. Accordingly, Plaintiffs' motion is denied." The appellate case is captioned as Sara Zito v. Strata Equity Group Inc., Case No. 22-1877, in the United States Court of Appeals for the Fourth Circuit, filed on August 23, 2022. [BN] Plaintiffs-Appellants SARA ZITO, et al., on behalf of themselves and all others similarly situated, are represented by: Steven E. Goldberg, Esq. STEINBERG LAW FIRM, LLP P.O. Box 9 Charleston, SC 29402-0000 Telephone: (843) 720-2800 - and - Frederick Elliotte Quinn, IV, Esq. STEINBERG LAW FIRM LLP 103 Grandview Drive Summerville, SC 29483 Telephone: (843) 871-6522 Defendants-Appellees STRATA EQUITY GROUP, INC., et al., are represented by: Kevin Kendrick Bell, Esq. ROBINSON GRAY STEPP & LAFFITTE, LLC P.O. Box 11449 Columbia, SC 29211 Telephone: (803) 227-1111 - and - Julianne Farnsworth, Esq. FARNSWORTH LAW FIRM, PC P.O. Box 338 Charleston, SC 29402 Telephone: (843) 763-1289 - and - Victoria Therese Kepes, Esq. NOBLE LAW FIRM, PLLC 1156 Bowman Road Mount Pleasant, SC 29464 Telephone: (843) 714-2505 - and - Peter George Siachos, Esq. GORDON REES SCULLY MANSUKHANI, LLP 18 Columbia Turnpike Florham Park, NJ 07932 Telephone: (973) 549-2500 - and - Reid C. Adams, Jr., Esq. WOMBLE BOND DICKINSON (US) LLP 1 West 4th Street Winston-Salem, NC 27101 Telephone: (336) 721-3674 - and - Kevin Alan Hall, Esq. WOMBLE BOND DICKINSON (US) LLP 1221 Main Street Columbia, SC 29201 Telephone: (803) 454-6504 - and - Robert Andrew Walden, Esq. WOMBLE BOND DICKINSON (US) LLP P.O. Box 999 Charleston, SC 29402-0000 Telephone: (843) 722-3400 SUN PHARMACEUTICAL: Loses Bid to Dismiss Antitrust Class Action --------------------------------------------------------------- Kevin Dunleavy at fiercepharma.com reports that when Sun Pharma acquired troubled Ranbaxy in 2014 for $4 billion, the India generics giant knew it was inheriting some major compliance problems. At the time, four of Ranbaxy's five plants were sidelined by the FDA. Six years later, the Ranbaxy headache persists for Sun as Boston federal judge Nathaniel Gorton denied an attempt by Sun to avoid a trial related to antitrust charges levied against its acquired company. With the judge's decision, Sun will have to defend against allegations that Ranbaxy conducted a scheme to delay the launches of three generic drugs by its rivals. In the lawsuit, generic drug buyers claim they overpaid for medicines because Ranbaxy deceived the FDA by submitting generic drug applications that contained "missing, incorrect or fraudulent information." The jury trial is set for Jan. 10. The lawsuits, which were pooled as a class action in 2019, contend that Ranbaxy submitted false generic drug applications to the FDA in 2004 and 2005. Those false applications allowed the company to obtain tentative approvals to produce generic versions of Genentech's antiviral drug Valcyte, Novartis' blood pressure therapy Diovan and Pfizer's acid reflux med Nexium, the buyers claim. Ranbaxy's generic of Novartis blockbuster Diovan approved for launch By becoming the first company to apply to make these generic drugs, Ranbaxy won generic exclusivity for 180 days, as specified by the Hatch-Waxman Act. The plaintiffs say that Ranbaxy's false applications prevented other companies from entering the market, causing higher prices. After granting Ranbaxy approval to produce the Diovan generic in 2014, the FDA rescinded its tentative nods for the Valcyte and Nexium generics following increased regulatory scrutiny. Ranbaxy claimed that the case should be dropped because the plaintiffs didn't show that that company misled the FDA, but Gorton disagreed. He also questioned Ranbaxy's argument that it never had monopoly power over Valcyte and Nexium, saying that it was best left for a jury to decide if the company's status as the first to file provided a competitive edge. [GN] TASMANIA: Faces Class Suit Over Mismanaged Youth Detention Centre ----------------------------------------------------------------- Sean Ford at theadvocate.com.au reports that a lawyer who prosecuted war crimes and crimes against humanity will represent former Ashley Youth Detention Centre inmates in a class action against the state of Tasmania. Regina Weiss recently returned to the Tasmanian Bar. As well as her work at the International Criminal Court at the Hague, she led legal teams of federal government agencies between 2016 and 2021, including the Australian Commission for Law Enforcement Integrity. Specialist institutional abuse legal practice Angela Sdrinis Legal said class action specialists Lachlan Armstrong KC and Ben Slade would also act as counsel for the plaintiffs, whose names have been suppressed. Mr Slade conducted a class action relating to the Northern Territory's Dondale Youth Detention Centre. That settled for $35 million. The first directions hearing of the Ashley class action is expected to be in the Supreme Court, before Justice Michael Brett. Angela Sdrinis Legal said there were likely to be several directions hearings or "case management conferences" before the action was ready to be listed for trial. "We call upon the Tasmanian government to move quickly to resolution and to do so in a trauma informed way," the firm said. Angela Sdrinis Legal recently said the class action sought damages for the plaintiffs and more than 100 other survivors of serious assaults at the centre. The four plaintiffs allege there was systemic negligence in management of the centre between 1961 and at least December 2019. Ms Sdrinis, an expert in historical child abuse claims, said Ashley's history was notorious and tragic. She said it was hoped the current Commission of Inquiry would lead to meaningful reform, but the class action was about compensation for the past. Then-premier Peter Gutwein announced in September last year Ashley would close within three years, to be replaced with a therapeutic model with sites in the North and South. Child safety advocates and various legal figures are continuing to call for the centre, near Deloraine, to be closed much sooner or immediately. Children and Youth Minister Roger Jaensch in August said: "Regarding our transition to new facilities, Noetic Group is exploring appropriate options by undertaking consultation with Tasmanian stakeholders, analysing data and reviewing best practice approaches from around the world." "This is a once in a generation opportunity to build a new youth justice system and we want to get it right. "While we are moving forward with our plans for new facilities, significant reform has been occurring at the AYDC already over recent years." [GN] TEAM HEALTH: $15M Class Settlement in Forward Suit Wins Final Nod ----------------------------------------------------------------- In the case, FORWARD MOMENTUM, LLC, et al., Plaintiffs v. TEAM HEALTH, INC., et al., Defendants, Case No. 2:17-CV-346-WKW (M.D. Ala.), Judge W. Keith Watkins of the U.S. District Court for the Middle District of Alabama, Northern Division, grants the Plaintiffs' Unopposed Motion for Final Approval of Class Settlement and their Unopposed Motion for Award of Attorneys' Fees and Expenses. The Named Plaintiffs, on behalf of themselves and the Settlement Class, and the Settling Defendants, have entered into and executed a Settlement Agreement, to fully and finally resolve all of the Named Plaintiffs' claims against the Settling Defendants in the Action, subject to approval of the Court. In full and final settlement of the claims asserted against them in the Action, the Settling Defendants have agreed to pay $15,032,500 as set forth in the Settlement Agreement. By Order dated March 11, 2022, the Court: (1) granted preliminary approval of the settlement, (2) found that the Settlement Class is likely to be certified at final approval, (3) preliminarily approved the Plan of Distribution, (4) set a Final Approval Hearing on July 28, 2022, (5) approved the Notice Plan, (6) appointed the Claims Administrator, (7) appointed the undersigned as Class Counsel, and (8) appointed the Named Plaintiffs as Class Representatives. Due and adequate Notice has been given to the Settlement Class. The 90-day period provided by the Class Action Fairness Act, 28 U.S.C. Section 1715(d), has expired. On July 28, 2022, Judge Watkins held a Final Settlement Approval Hearing. He has considered the Settlement Agreement, all papers filed and proceedings held therein in connection with the Settlement, all oral and written comments and objections received regarding the Settlement, and the record in the Action. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, Judge Watkins grants Final Approval of the Settlement agreement in all respects, and finds that the Settlement Agreement is, in all respects, fair, reasonable, and adequate to the Settlement Class. The Action and all claims contained therein, as well as all of the Released Claims against any of the Releasees by Releasors, are each dismissed with prejudice. While the Settlement Agreement provided for Opt-Outs to be excluded from the Settlement Class, no Settlement Class Member chose to Opt-out. The releases are effective as of the Effective Date. The Final Order and Judgment will not affect, in any way, the right of Releasors, to pursue claims, if any, outside the scope of the Released Claims. All persons who have not objected to the Settlement Agreement in the manner provided in the Settlement Agreement are deemed to have waived any objections to the Settlement, including, without limitation, by appeal, collateral attack, or otherwise. Pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, and based on the record before the Court, including submissions in support of the Settlement and any objections (since withdrawn) and responses thereto, Judge Watkins affirms the Court's forecast in the Preliminary Approval Order and certifies the following Settlement Class for settlement purposes only: Settlement Class: Emergency room physicians located anywhere in the United States who participated in one of Defendant's operating affiliates RVU incentive plans from 2014 until the physician executed a new contract with a Variable RVU Compensation Plan, whether as an independent contractor or employee, who had Supervisory RVUs associated with the physician's name as a primary or secondary provider, but was not paid for some or all of those RVUs under the relevant RVU incentive plan. Solely for purposes of the settlement set forth in the Settlement Agreement, Judge Watkins affirms that the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) are satisfied for final approval. Pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, and solely for settlement purposes, the Co-Lead Counsel's law firms: (1) D.G. Pantazis, Jr. and Craig Lowell of Wiggins Childs Pantazis Fisher Goldfarb, LLC and (2) Floyd Gaines and Daniel Snyder of Gaines, LLC are appointed as the Settlement Class Counsel. They have fairly and adequately represented the Settlement Class and will continue to do so. Judge Watkins appoints the following individuals and entities as Class Representatives, who have fairly and adequately represented the Settlement Class and will continue to do so: Forward Momentum, LLC; Argo Consulting, PC; Lisa M. Bundy, MD, LLC; Dr. Steven Bobo; Dr. Raymond J. Maguire; Dr. Landon E. Argo; Dr. Nima Bahraini; Dr. Dawn Donald; Dr. Roger D. Eiland; and Dr. Lisa M. Bundy. KCC, LLC, has already been appointed as the Claims Administrator, with responsibility for claims administration, the Notice Plan, and all other obligations of the Claims Administrator as set forth in the Settlement Agreement and Notice and Distribution Plan. KCC is also appointed as the Settlement Administrator to assist in the implementation of the Plan of Distribution and the resolution of any disputes between Settlement Class Members and the Claims Administrator pursuant to the Plan of Distribution. KCC's fees due to Notice, Claims, and Settlement Administration, as well as all other costs and expenses associated with notice and administration, are to be paid directly from the Settlement Fund. Pursuant to Rule 23(h), Judge Watkins awards the Class Counsel the sum of $3.75 million as the Fee Award. This award is reasonable in light of the circumstances surrounding the prosecution of the action, commiserate with awards in similar cases, and consistent with the 25% benchmark for approval in the Eleventh Circuit. This award will be paid in accordance with the terms of the Settlement Agreement. On May 31, 2022, Dr. Mike Masiowski, through his counsel, Paul S. Rothstein, filed objections to the Settlement Agreement. Dr. Masiowski appeared at the Final Approval hearing on July 28, 2022, and provided testimony. After the Final Approval hearing, Mr. Rothstein and counsel for the Plaintiffs and the Defendants agreed to modify certain terms of the Settlement Agreement as reflected in Doc. # 128 and as approved in Doc. # 129. 28. After the modifications were agreed to, the Objector withdrew his objections. The Plaintiffs and the Defendants also agreed that they would not object to a request for Attorneys' Fees and Costs on behalf of the Objector's counsel, for his work performed that resulted in the modification of the Settlement Agreement. Because the modifications approved in Doc. # 129 benefit the class, and because the Court finds that the objections were made in good faith and withdrawn in good faith after substantial modifications were made to the settlement agreement, the Objector's counsel (Paul S. Rothstein) is awarded $65,000 in attorneys' fees and costs, to be paid within 14 days of the Plaintiffs' counsel's receipt of their Attorneys' Fees and Costs. $32,500 of this money is to come from the additional monies the Defendants have added to the QSF. The other $32,500 will be paid out of the Attorneys' Fees and Costs awarded to the Plaintiffs' counsel. The Court has previously approved modifications to the Settlement Agreement at Section 3.1 and Section 3.3. See Doc. # 129. The approved changes are reflected below in bold and italics: a. 3.1. Class Release. . . . Plaintiffs and Class Members further agree to waive any right to demand an independent audit, review, or accounting for RVUs or RVU incentive or compensation plans for RVUs generated before the date of this agreement. The audit waiver language in this section is not intended to preclude a party from responding to governmental investigation demands; requesting information necessary to respond to or defend against a governmental investigation; complying with court orders in a different proceeding; responding to discovery requests or subpoenas in a different proceeding, or propounding discovery requests or serving a subpoena in a different proceeding; or otherwise using or complying with lawfully issued process. b. 3.3. Plaintiffs acknowledge and agree that none of the Defendant or other Defendant Releasees have any obligation to hire or rehire any Plaintiff as an employee or independent contractor and that Plaintiffs will have no claim or cause of action against Defendant Releasees or other Defendant for such decision failing or refusing to hire any Plaintiff for any reason related to RVUs, this Litigation, or this Agreement. The only other modification to the Settlement Agreement approved by the Court is that the Defendants will increase the total QSF to $15,032,500. The Parties to the Settlement Agreement will carry out their respective obligations thereunder and are directed to implement the Settlement Agreement in accordance with its terms once the Settlement Agreement becomes final. Within the time period set forth in and consistent with the Settlement Agreement, the relief provided for in the Settlement Agreement will be made available to the various Settlement Class Members submitting valid Claim Forms, pursuant to the terms and conditions of the Settlement Agreement. The Parties expressly reserve all of their rights if this Agreement is rescinded or does not otherwise become final. Judge Watkins dismisses the action and all claims therein on the merits and with prejudice, without award of any fees or costs to any Party except as provided in his Final Judgment and consistent with the terms of the Settlement Agreement. Without affecting the finality of the Final Order and Judgment, the Court retains jurisdiction over the subject matter and the Parties with respect to the interpretation and implementation of the Settlement for all purposes arising from the implementation of the Settlement or the implementation of the Final Order and Judgment. A full-text copy of the Court's Sept. 2, 2022 Final Approval Order is available at https://tinyurl.com/bdsruyvh from Leagle.com. TESLA INC: Faces Class Action Over Misleading Self-Driving Features ------------------------------------------------------------------- Fred Lambert at electrek.co reports that Tesla is now facing a class action lawsuit over "allegedly misleading the public regarding its Autopilot, Enhanced Autopilot, and Full Self-Driving Capability ('FSD') technology." With Tesla's approach of selling features that it has yet to fully develop and missing several timelines relating to them, it was inevitable that the company would eventually face some legal repercussions. Those repercussions are now starting. Cotchett, Pitre & McCarthy, LLP, announced that it filed a class action lawsuit in the Northern District of California in which it claims that Tesla has been misleading buyers with its claims about Autopilot and Full Self-Driving Package and basically delivering a faulty product. They wrote in a press release: The lawsuit filed alleges that Tesla has yet to produce a fully self-driving car. Tesla owners receiving the latest "updates" to Tesla's Autopilot software and FSD beta software have reported myriad problems, such as cars having difficulty making routine turns, running red lights, and steering into oncoming traffic. There have also been numerous collisions involving Tesla's purportedly cutting-edge software, including vehicles crashing at high speeds into large stationary objects such as emergency vehicles and an overturned box truck. The lead plaintiff is Briggs Matsko, a financial planner based out of Sacramento. Now the firm is looking to add plaintiffs to the lawsuit. Joe Cotchett, a partner of Cotchett, Pitre & McCarthy, said about the lawsuit: As alleged in the complaint, people have relied upon the representations of Tesla that the self-driving capabilities are completely safe, when Tesla knew they had many problems. The lawsuit is also using government investigations into Tesla Autopilot and FSD. However, those investigations have yet to find Tesla to have a defect with its systems. Tesla is also facing a class action lawsuit over Autopilot's phantom braking problem. Electrek's Take This was inevitable, and it's going to be a hard one for Tesla to defend. At the very least, I think Tesla should promptly offer refunds to anyone who ordered Full Self-Driving if they want it. I think that's fair after so many missed deadlines and virtually no usefulness from FSD Beta. On Tesla's side, that would be some goodwill that could help prevent more people from joining the lawsuit, but I think those legal actions are inevitable at this point. Tesla dug itself into a hole that it has to climb out of by delivering on its promises, and this is proving way harder than it thought. [GN] TPG BOCA RATON: Betancourt Says Hotel Inaccessible to Amputees -------------------------------------------------------------- RUDOLPH BETANCOURT, individually, Plaintiff v. TPG BOCA RATON, LLC, a Delaware Limited Liability Company, Defendant, Case No. 9:22-cv-81332-DMM (S.D. Fla., August 30, 2022) brings this complaint, on behalf of himself and on behalf of all other mobility impaired individuals similarly situated, against the Defendant for its alleged violations of the Americans with Disabilities Act. The Plaintiff is a double amputee who uses either prosthetic devices and/or a wheelchair for mobility. The Plaintiff claims that the barriers to access at the Defendant's hotel have endangered his safety during his stay at the hotel on July 24, 2022 which visit forms the basis of this lawsuit. Allegedly, the Defendant has discriminated against the Plaintiff, by denying him access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages and/or accommodations of the buildings, as prohibited by 42 USC Section 12182 et seq. Accordingly, a preliminary inspection of the Defendant's property has shown that violations exist. The Plaintiff asserts that he desires to visit the Defendant's property, known as The Renaissance Boca Raton Hotel, not only to avail himself of the goods and services available at the property, but to assure himself that the property is in compliance with the ADA so that he and others similarly situated will have full and equal enjoyment of the property without fear of discrimination. Thus, the Plaintiff respectfully requests an injunctive relief against the Defendant, including an order to make all readily achievable alterations to the facility, or to make such facility readily accessible to and useable by individuals with disabilities to the extent required by the ADA; and to require the Defendant to make reasonable modifications in policies, practices or procedures. The Plaintiff also seeks attorney's fees, costs and litigation expenses, and other relief as the Court deems just and proper. TPG Boca Raton, LLC owns, leases, or operates a place of public accommodation. [BN] The Plaintiff is represented by: John P. Fuller, Esq. FULLER, FULLER & ASSOCIATES, P.A. 12000 Biscayne Blvd., Suite 502 North Miami, FL 33181 Tel: (305) 891-5199 Fax: (305) 893-9505 E-mail: jpf@fullerfuller.com Jpfuller17@gmail.com TURQUOISE HILL: Bid to Dismiss 2nd Amended Securities Suit Granted ------------------------------------------------------------------ In the case, IN RE TURQUOISE HILL RESOURCES LTD. SECURITIES LITIGATION, Case No. 20-cv-08585 (LJL) (S.D.N.Y.), Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York issued an Opinion and Order: (i) granting in part and denying in part the Rio Defendants' motion to dismiss the Second Amended Consolidated Complaint as to Defendants Rio Tinto, Arnaud Soirat, and Jean-Sebastien Jacques; (ii) granting the Rio Defendants' motion to dismiss as to Rio Tinto International Holdings Limited; and (iii) granting the Turquoise Defendants' motion to dismiss. Plaintiffs the Pentwater Funds bring a putative class action for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5 against Defendants Turquoise Hill, Rio Tinto plc and Rio Tinto Limited (together, "Rio Tinto" or "Rio"), Rio Tinto International Holdings Limited ("RTIH"), Jacques, Soirat, Ulf Quellmann, Luke Colton, and Brendan Lane. Turquoise Hill is a mineral-exploration and development company headquartered in Montreal, Quebec, Canada, and a majority-owned subsidiary of Rio Tinto. Its sole business is the operation and development of the Oyu Tolgoi copper-gold mine in southern Mongolia, the company's only material mineral-resource property. Its common stock trades on the New York Stock Exchange and the Toronto Stock Exchange (and previously also traded on the Nasdaq) under the ticker symbol "TRQ." Mr. Quellmann was the CEO of Turquoise Hill from Aug. 1, 2018, until his resignation on March 3, 2021. Before becoming CEO of Turquoise Hill, Quellmann was VP of Strategic Projects, Copper and Diamonds at Rio Tinto from March 2018 to July 2018, and CFO, Coppers and Diamonds at Rio Tinto from August 2016 to February 2018. Colton has been the CFO of Turquoise Hill since Oct. 9, 2017 and briefly served as Turquoise Hill's interim CEO after former CEO Jeff Tygesen resigned on May 29, 2018 and before Quellmann assumed that role in August 2018. Lane served as VP, Operations and Development of Turquoise Hill from February 2016 until his resignation in March 2019. He was Finance Director of Rio Tinto Copper's Minera Escondida Limitada and Grasberg operation from 2013 to January 2016 and was a Rio Tinto employee while seconded to Turquoise Hill during the alleged class period -- from July 17, 2018 to July 31, 2019. Quellmann, Colton, and Lane are referred to as the "Turquoise Executive Defendants." Rio Tinto, which consists of Rio Tinto plc (a United Kingdom company) and Rio Tinto Limited (an Australian company), is one of the world's largest metals and mining companies. RTIH is a wholly owned subsidiary of Rio Tinto and holds a majority interest in the common stock of Turquoise Hill. It also is the manager of Oyu Tolgoi and manager of a substantial portion of Turquoise Hill's receivables and liquid asset deposits. Mr. Jacques was the CEO of Rio Tinto from July 2016 until December 2020. He became deputy CEO in March 2016 and CEO in July 2016, largely as a result of his work in negotiating with the Mongolian government to restart underground development at Oyu Tolgoi. Soirat served as the chief executive of Rio Tinto's Copper and Diamonds product group from 2016 to December 2020. Jacques and Soirat are sometimes referred to as the "Rio Executive Defendants" and together with the Turquoise Executive Defendants are referred to as the "Executive Defendants." The Oyu Tolgoi (the "Mine" or "OT") underground mine in southern Mongolia is expected to be one of the largest copper mines in the world. The Mine is jointly owned by Turquoise Hill and the Government of Mongolia. OT is comprised of an open-pit copper mine and an underground mine. The open-pit copper mine has been in operation since 2013. Drilling of the underground mine began in 2010 but was suspended in 2013 due to ongoing disputes between Rio Tinto and the Government of Mongolia as well as insufficient project financing. By far the largest amount of copper ore at the site, and 80% of the mine's reserve value, is located in the underground mine. OT is owned by Oyu Tolgoi LLC, a company 66% of whose equity is owned by Turquoise Hill, while the remainder is held by the Government of Mongolia. In turn, Rio Tinto owns just over 50% of Turquoise Hill's common stock; manages the OT project under agreements between OT, Rio Tinto, and the Government of Mongolia; and, through RTIH, exercises near-total control over both the project and Turquoise Hill. During the Class Period, Quellmann, Lane, Colton and Soirat served on the Board of Directors of OT. Rio Tinto has contractual rights with respect to Turquoise Hill's public statements about OT. In an April 2012 memorandum of agreement, Ivanhoe Mines (the predecessor for Turquoise Hill) entered into an agreement with Rio Tinto related to public disclosures about OT. Turquoise Hill's predecessor, Ivanhoe Mines, began initial work on the Mine as early as 2001, when it completed the first of five planned deep, large-diameter, concrete-lined shafts -- Shaft 1, a 1,385-meter-deep shaft to be used for preliminary exploratory and access work and services on the underground-mine project. In 2007, Ivanhoe Mines commenced work on a much larger shaft -- Shaft 2 -- as part of the development of the underground mine. In 2015, Turquoise Hill, Rio Tinto, and the Government of Mongolia signed the 2015 Oyu Tolgoi mine-development and financing plan to begin Phase 2 of the underground expansion. The deal included a $4.4 billion financing plan for the project that Jacques personally negotiated with the then Prime Minister of Mongolia. In June 2016, Rio selected Jacobs Engineering Group Inc. as the principal contractor for the underground expansion at Oyu Tolgoi. The planned development of OT involved a mining method called "panel caving." By the beginning of the Class Period, the Mine's success depended on the construction and completion of primary crusher 1 and two key mine shafts and associated infrastructure, specifically, the Shaft 1 crusher and systems and Shaft 2. However, as soon as the work on the underground project resumed in 2016, the project was plagued by delays and cost overruns as a result of engineering, procurement, and construction issues. The most significant of these issues concerned Shaft 2. In particular, during the shutdown of the project, inspections of the Mine revealed potentially catastrophic issues with the work that had been done by a contractor on the steel headframes for Shaft 2. Due to the severity of these issues, construction on Shaft 2 was delayed for eight months and required over $30 million in additional costs (which alone accounted for 10% of the Shaft 2 projected budget). Further delays to Shaft 2 resulted from engineering problems and faulty construction. Around 2017, two senior Rio Tinto executive hired an experienced mining executive, Richard Bowley, to investigate the problems at OT. The executives were Defendant Soirat and Craig Kinnell, who was the Chief Development Officer of Rio Tinto's Copper and Diamonds division in charge of the Oyu Tolgoi project from December 2014 to July 2018. Bowley had identified one of the key problems with OT to be Jacobs, the primary contractor for engineering, procurement, and construction at the Mine. Shortly after he was hired, Bowley confirmed concerns that the underground project could not be completed for the original budget of $5.3 billion nor achieve sustainable first production in the first quarter of 2021. Due to his reports, Bowley was marginalized within Rio Tinto by Soirat, and Bowley's role was reduced, although he continued to report on the cost overruns and delays to Soirat and Fagen, urging them to correct their misstatements to the public. In May 2018, Soirat instructed Bowley to stop looking into delays and cost overruns at OT. In around 2016, Dr. Maurice Duffy, the head of GFI Blackswan, which had served as an executive coaching consultant for Rio Tinto since 2007, started to report concerns about unethical behavior and "potential overstatements" at OT. In connection with that work, Duffy said that he began to hear reports and concerns from senior leaders in Mongolia about unethical behavior and "potential overstatements" at OT in around 2016. In mid-2017, Duffy was instructed to stop providing these reports, although he did not stop until September 2017 when he was again instructed to stop providing them. Duffy resigned and terminated his firm's contract with Rio in December 2017 due to concerns about unethical behavior in Mongolia, which he communicated to Rio's senior leadership. According to him, Jacques "knew without a doubt" about the problems at OT by 2017, and it was clear Jacques knew the "wheels were coming off" the project at OT in January 2018 when he traveled to Mongolia. After May 2018, Rio Tinto and OT began to "manipulate the schedule" to hide the delays by transferring costs and projects related to the major infrastructure of Shaft 2 to secondary phases. The tasks that were de-scoped were critical infrastructure and had to be completed before Shaft 2 could become active. The Plaintiffs further allege that the Defendants attempted to conceal the cost overruns and delays plaguing the project through a re-forecast in October 2018. Bowley repeatedly expressed his concerns about the re-forecast to senior management. The day after Bowley was terminated in January 2019, Bowley wrote a critical letter to Arshad Sayed, Rio's Copper and Diamonds Chief Development Officer, and Fagen stating that Rio Tinto's compliance was deficient. Within three days of sending the letter, he received a phone call from a Rio Tinto compliance manager who said he was coming to Mongolia to investigate. He described the investigation as effectively a cover up; the compliance manager completed his investigation in six days and concluded that there were no compliance breaches. After the investigation was closed, Bowley sent a letter about his concerns to Ann Godbehere, a member of Rio Tinto's Board of Directors, on March 27, 2019. On April 2, 2019, Bowley emailed Jacques and Godbehere, telling Jacques how behind schedule the project was. Rio Tinto then engaged the law firm Baker McKenzie to do a compliance review. The Plaintiffs allege that rather than complete a proper investigation, Rio Tinto's lawyers at Baker McKenzie pursued Duffy throughout the Class Period seeking to destroy the data his firm had collected from Rio executives. On July 8, 2019, the Australian Financial Review published a report suggesting that the problems at OT that Rio had blamed on newly available "geotechnical data" may have been known by Rio for a year. On July 10, 2019, Turquoise Hill disclosed that a Turquoise Hill director had abruptly resigned from the Board. Five days later, Rio Tinto and Turquoise Hill publicly disclosed a substantial delay for first production of sixteen to thirty months compared to the original feasibility study guidance in 2016 and disclosed that the capital spend for the project would increase by $1.2 billion to $1.9 billion over the $5.3 billion previously disclosed. In response to this news, Turquoise Hill's common stock price decreased by approximately 43.9% from the prior day's closing price. The Plaintiffs allege that the Defendants made repeated misstatements concerning the schedule and budget for Oyu Tolgoi during the Class Period, including that it was progressing on schedule and that costs for the project were on budget. In early March 2020, Bowley reported the Defendants' alleged misconduct to securities regulators, including to the U.S. Securities and Exchange Commission ("SEC"), the Australian Securities and Investments Commission, the U.K. Serious Fraud Office and Financial Conduct Authority, and the Mongolia Financial Regulatory Commission. He stated his belief that Rio Tinto was seeking to suppress his reports and had made misleading statements to the market regarding the OT project. In December 2020, a Parliamentary Working Group, which Mongolia had established to investigate the OT project, proposed resolutions that the Government should "take comprehensive measures to improve the implementation" of its various agreement related to the OT underground development project. On Feb. 8, 2021, Mongolia announced that it was seeking to cancel the OT deal with Rio Tinto and would replace that deal with a new agreement, explaining that the significant cost increases at OT eroded the economic benefits the Mongolian government expected to receive from the mine. On Nov. 30, 2022, the OT Board established a special committee consisting of two representatives of Mongolia and two representatives of Turquoise Hill to investigate the causes of cost overruns and schedule delays. A group referred to as the Independent Consulting Group -- i.e., the group who produced the ICG Report -- was hired and was composed of highly experienced and qualified mining professionals. The ICG Report was submitted on Aug. 3, 2021 to the special committee and concluded that "the underground expansion project's delays and cost overruns began as soon as work resumed in 2016 and were caused by engineering, procurement, and construction problems related to Shaft 2 and associated work in completing Shafts 1 and 5 -- and not by any geotechnical issues." The ICG Report also reported that Rio had refused to cooperate fully with the ICG, refusing to release certain documents. The original class complaint was accepted for filing on Oct. 15, 2020. The Pentwater Funds were appointed as lead plaintiffs on Jan. 15, 2021 and filed a consolidated complaint on March 16, 2021. The operative complaint, the SAC, was filed on Sept. 16, 2021. The Lead Plaintiffs bring the action on behalf of a class of investors who purchased or otherwise acquired Turquoise Hill securities during the Class Period in domestic transactions or on United States exchanges. On Oct. 19, 2021, Defendants Rio Tinto, RTIH, Jacques, and Soirat (collectively the "Rio Defendants") moved to dismiss all claims asserted against them in the Complaint. Also on Oct. 19, 2021, Defendants Turquoise Hill, Colton, Lane, and Quellmann (collectively, the "Turquoise Defendants") moved to dismiss all claims asserted against them in the Complaint. The Plaintiffs filed their memorandum of law in opposition to the motions to dismiss on Nov. 16, 2021. The Rio Defendants and the Turquoise Defendants separately filed reply memoranda in further support of their motions to dismiss on Dec. 17, 2021. On Aug. 4, 2022, the Plaintiffs filed a letter to the Court addressing the Second Circuit's decision in SEC v. Rio Tinto plc, - F.4th -, 2022 WL 2760323 (2d Cir. July 15, 2022). The Rio Defendants and Turquoise Defendants each responded to that letter on Aug. 10, 2022, and the Plaintiffs filed their reply on Aug. 11, 2022. The Court heard oral argument on the motions on Aug. 25, 2022. Following oral argument, the Turquoise Defendants wrote a letter to the Court addressing the Turquoise Hill Board of Directors' obligations with respect to the company's minority shareholders. The Plaintiffs bring claims for the Defendants' false statements and omissions under Section 10(b) of the Exchange Act, 15 U.S.C. Section 78j(b), and under Rule 10b-5(b) promulgated thereunder, 17 C.F.R, Section 240.10b-5(b), against all Defendants. They also bring a claim against all Defendants under Section 10(b) and Rule 10b-5(a) and (c), promulgated thereunder, 17 C.F.R, Section 240.10b-5(a) & (c), alleging that they engaged in deceptive and manipulative acts in a scheme to defraud investors, as well as for making false statements and omissions. Finally, the Plaintiffs bring a control-person claim against the Executive Defendants, Rio Tinto, and RTIH under Section 20(a) of the Exchange Act, 15 U.S.C. Section 78t(a). The Rio Defendants argue that the Plaintiffs lack standing to sue them and that the Rio Defendants are not liable under Rule 10b-5(b) for Turquoise Hill's statements. The Rio and Turquoise Defendants both argue that the Complaint does not state a claim under Rule 10b-5(b) because it fails to allege an actionable misstatement or omission and does not sufficiently allege scienter. The Defendants also move to dismiss the scheme liability claims under Rule 10b-5(a) and (c) as well as the control person claims under Section 20(a) of the Exchange Act. Finally, the Rio Defendants argue that the Complaint against them should be dismissed as the Plaintiffs do not adequately allege loss causation. As to standing, the Rio Defendants assert that the Plaintiffs lack standing to sue them because their alleged losses stem solely from their purchases of stock in another company -- Turquoise Hill. Judge Liman opines that it is apparent that the Plaintiffs have standing for their claims against the Rio Defendants. The Plaintiffs allege a connection between Rio Tinto's misstatements and their purchase of Turquoise Hill stock that is significantly less remote than the connection in Nortel. In fact, the facts alleged are very similar to the hypothetical the Court asked the Rio Defendants about at oral argument. While, unlike the hypothetical, Rio Tinto would have chosen to finance that investment through the issuance of stock in Turquoise Hill, the consequences are ultimately no different than if it had chosen to finance it by issuing debt at the subsidiary level. Moreover, unlike Nortel, Rio Tinto elected to make statements directly about the operation of Turquoise Hill's Oyu Tolgoi project. These misstatements, according to Jugde Liman, are not "self-referential" and directly concern the company in which the Plaintiffs invested: As the SAC states repeatedly, the operation and development of OT was the "sole business" of Turquoise Hill and therefore any statement about OT was necessarily about Turquoise Hill. They "relate" to the company whose securities the Plaintiffs purchased. The liability to which it exposed itself is anything but unwitting. Accordingly, Judge Liman declines to dismiss the Plaintiffs' claims against the Rio Defendants for lack of standing. As to the Rio Defendants' liability for statements made by Turquoise Hill, the Plaintiffs allege that Rio and RTIH were the makers of both their own and Turquoise Hill's false and misleading statements and omissions. On that theory, Rio and RTIH would themselves be primarily liable for those alleged misstatements and omissions; no scienter on the part of Turquoise Hill would be necessary. The Rio Defendants move to dismiss this theory of liability, claiming that Rio and RTIH are plainly not the "makers" of Turquoise Hill's statements under the Supreme Court's holding in Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011). Although the Plaintiffs do not appear to contest this point with respect to RTIH, they claim that Rio is liable for Turquoise Hill's statements as it exercised "complete control" over Turquoise Hill's public statements regarding the Oyu Tolgoi project. Judge Liman opines that the Plaintiffs have not sufficiently pled that Rio Tinto was the "maker" of the first category of Turquoise Hill's statements (i.e., those statements that Turquoise Hill made that are not explicitly attributed to Rio Tinto). As to the second category of statements (i.e., those statements that Turquoise Hill made to investors, which it explicitly attributed in some form to Rio Tinto), he says the Plaintiffs' argument that Rio Tinto is the "maker" of these statements is much more compelling. Regardless of who the speaker of these statements is, these statements are forward-looking statements accompanied by meaningful cautionary language and are therefore protected under the PSLRA safe harbor. As to Turquoise Hill's alleged false and misleading statements and omissions, the Turquoise Defendants seek to dismiss the Plaintiffs' claims related to the following alleged statements as either protected by the PSLRA safe harbor, inactionable statements of opinion, or inactionable puffery. Judge Liman opines that Turquoise Hill's statements related to the expected timeline and capital expenditures of the underground development project are protected by the PSLRA safe harbor for forward-looking statements. So, the Plaintiffs' Section 10(b) claims with respect to these statements are therefore dismissed. Judge Liman also opines that regardless of whether other managers had seen such delays in their careers, the managers who made the statements could have believed that the delays were not unprecedented and were typical. Moreover, other than a conclusory remark that the "delays at Oyu Tolgoi were atypical," the Plaintiffs do not allege any facts indicating that such delays are not typical at complex mining companies or that "any of the facts supplied by" Turquoise Hill in support of its estimate that such delays were atypical were objectively false. Accordingly, their 10(b) claim related to Turquoise Hill's Nov. 2, 2018 statement that the delays were "not atypical" is dismissed. In connection with the statements that the "key risks were well understood and management," that Turquoise Hill is "well positioned" to address key challenges, and that things were "progressing well," Judge Liman holds that Turquoise Hill's statement about "progress" reassured investors that construction related to the underground development was not substantially impaired by any delay, a representation that a "reasonable investor could rely on as reflective of the true state of affairs at the Company." Accordingly, it cannot be dismissed as mere puffery. However, because the Plaintiffs fail to allege that Turquoise Hill acted with scienter about the underground development project's delays, Judge Liman nonetheless dismisses the Plaintiffs' Rule 10b-5 claim with respect to this statement. As to Rio Tinto's alleged false and misleading statements and omissions, the Rio Defendants seek to dismiss the following two categories of statements as not actionable either because they are forward-looking statements protected by the PSLRA's safe harbor, are inactionable statements of opinion, or are not material. They also argue that the Sarbanes-Oxley ("SOX") certifications and risk disclosures are inactionable and that none of the alleged misstatements were materially false or misleading. Judge Liman holds that (i) while the statements are dismissed as protected by the PSLRA safe harbor, the Rio Defendants' request to dismiss the Plaintiffs' Rule 10-5 claims with respect to the Aug. 15, 2018 statement is denied; (ii) assuming that the Plaintiffs even intended to raise Rule 10b-5(b) claims with respect to any of these statements, those claims do not pass muster under the PSLRA as the Complaint does not "specify each statement alleged to have been misleading" and "the reason or reasons why the statement is misleading; (iii) the Plaintiffs do not sufficiently allege that Jacques possessed the requisite scienter as to the delays and cost overruns at the Mine, "undermining the allegations that he knew that the SOX certifications were false; (iv) the Plaintiffs do sufficiently allege that Rio knew of delays or cost overruns shortly before the Class Period and, instead of trying to fix them or disclose them to investors, attempted to silence those who spoke out about them; (v) the Plaintiffs fail to allege sufficient facts to show that an "earlier impairment charge was so clearly required by accounting principles that the failure to take such a charge was fraudulent." As to inference of scienter, the Defendants also contend that Plaintiffs have failed to sufficiently plead scienter. The Turquoise Defendants contend that the Complaint does not raise a strong inference either that they had motive and opportunity to commit the fraud or that they had knowledge of contrary facts about the cost overruns and delays at OT. Judge Liman finds that the Plaintiffs fail to raise a strong inference of scienter on the part of the Turquoise Defendants. They thus cannot state a claim under Section 10(b) or Rule 10b-5, and those claims against the Turquoise Defendants must be dismissed. He also finds that the allegation regarding deep personal commitments thus is entirely conclusory. And with regard to the Plaintiffs' allegations about Quellmann, while it may be true that certain senior officials in the Mongolian government were arrested in connection with a corruption investigation, they tellingly do not allege facts that Quellmann was involved in such conduct or that would support a reasonable inference that Quellmann himself feared he would be investigated. The Rio Defendants similarly argue that the Complaint does not allege that the Rio Defendants had a unique motive to defraud the market and contains no particularized allegations that the Rio Defendants knew that their statements were false when made. Judge Liman holds that (i) the Plaintiffs have not sufficiently pled the Rio Defendant's scienter through motive and opportunity; and (ii) Jacques' senior position at Rio Tinto, the significance of the OT asset to Rio Tinto, as well as the Plaintiffs' conclusory that scheduling delays and cost overruns were well-known are insufficient, without more, to allege that Jacques possessed the requisite scienter. As to scheme liability claims, the Plaintiffs allege that the Defendants are liable under Rule 10b-5(a) and Rule 10b-5(c) for engaging in deceptive and manipulative acts in a scheme to defraud investors. Judge Liman opines that the Plaintiffs' scheme liability claims against the Rio Defendants must be dismissed. He says, the Plaintiffs do not allege that any product of Rio's retaliation against whistleblowers, commission of an internal investigation, concealment and destruction of evidence, and use of nondisclosure agreements was made known to or relied upon by investors outside of its tangential relationship to Turquoise Hill's false statements. And while some of this conduct may have made it easier for Turquoise Hill to continue making misrepresentations, none of it can be said to have made such misstatements "necessary or inevitable." The Plaintiffs allege that the Turquoise Defendants are liable under SEC Rule 10b-5(a) and (c) for disseminating the purportedly false statements made by Rio and RTIH. But they have not sufficiently pled scienter with respect to the Turquoise Defendants. Their scheme liability claims against the Turquoise Defendants therefore fail on this basis. As to claims of control person liability under Section 20(a), the Plaintiffs bring the claims against the Turquoise Executive Defendants, Rio Tinto, as well as the Rio Executive Defendants, alleging that each was a controlling person of Turquoise Hill within the meaning of Section 20(a) of the Exchange Act. The Plaintiffs fail to allege a primary violation by Turquoise Hill. They thus cannot establish control person liability against the Turquoise Executive Defendants, the Rio Executive Defendants, RTIH, or Rio for Turquoise Hill's misstatements. And, although the Plaintiffs have failed to plead an underlying violation by RTIH, they have successfully pled an underlying violation of Rule 10b-5(b) by Rio. Thus, while claims under Section 20(a) related to the Rio Executive Defendants' control over RTIH will be dismissed for this reason, the Plaintiffs' Section 20(a) claims against the Rio Executive Defendants related to their control over Rio will not. As to loss causation, the Rio Defendants move to dismiss the Plaintiffs' claims on the basis that they do not adequately allege loss causation. Judge Liman finds that the Plaintiffs adequately allege loss causation through evidence that the market reacted negatively to corrective disclosures of the alleged fraud. The Plaintiffs do not allege that the failure to meet forecasts alone establishes a scheme; instead, they allege that the Defendants knew all along that they would not meet these forecasts and yet continued to publicly affirm their validity to investors. Based on the foregoing, Judge Liman (i) grants in part and denies in part the Rio Defendants' motion to dismiss as to Defendants Rio Tinto, Soirat, and Jacques; (ii) grants the Rio Defendants' motion to dismiss as to Defendant RTIH; and (iii) grants the Turquoise Defendants' motion to dismiss. The Clerk of Court is respectfully directed to close Dkt. Nos. 129 and 132. A full-text copy of the Court's Sept. 2, 2022 Opinion & Order is available at https://tinyurl.com/mtj2yes2 from Leagle.com. TWITTER INC: Portnoy Law Firm Discloses Securities Class Action --------------------------------------------------------------- The Portnoy Law Firm advises Twitter, Inc. (NYSE: TWTR) investors that a class action has been filed on behalf of investors. Twitter investors that lost money on their investment are encouraged to contact Lesley Portnoy, Esq. Investors are encouraged to contact attorney Lesley F. Portnoy, by phone 844-767-8529 or email: lesley@portnoylaw.com, to discuss their legal rights, or click here to join the case via www.portnoylaw.com. The Portnoy Law Firm can provide a complimentary case evaluation and discuss investors' options for pursuing claims to recover their losses. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose material adverse facts about the Company's business operations and prospects. Specifically, that: (1) Twitter knew about security concerns on their platform; (2) Twitter actively worked to hide the security concerns from the board, the investing public, and regulators; (3) contrary to representations in SEC filings, Twitter did not take steps to improve security; (4) Twitter's active refusal to address security issues increased the risk of loss of public goodwill; and (5) as a result, Defendants' statements about Twitter's business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. . Please visit our website to review more information and submit your transaction information. The Portnoy Law Firm represents investors in pursuing claims against caused by corporate wrongdoing. The Firm's founding partner has recovered over $5.5 billion for aggrieved investors. Attorney advertising. Prior results do not guarantee similar outcomes.[GN] UNIFIN INC: Meisels Files Suit Over Misleading Collection Letter ---------------------------------------------------------------- RAIZEL MEISELS, individually and on behalf of all others similarly situated, Plaintiff v. UNIFIN INC., Defendant, Case No. 525234/2022 (N.Y. Sup Ct., August 30, 2022) brings this complaint as a class action alleging the Defendant of violations of the Fair Debt Collection Practices Act. The Plaintiff has an obligation allegedly incurred to non-party TD Bank USA NA, specifically for consumer credit. Accordingly, the Defendant was contracted by TD Bank for the purpose of collecting the Plaintiff's alleged debt. Consequently, on or about November 17, 2021, the Defendant sent the Plaintiff an initial collection letter, which states charge-off amount is $21,872.84, interest due since charge off is $2,202.14, and the account balance is still $21,872.84. However, the Letter fails to clearly explain how the balance remained the same since charge-off, despite the $2,202.14 of interest charges allegedly being added to balance. The Plaintiff asserts that the letter misleads and confuses her concerning whether paying $21,872.84 will close the account, or whether more than $21,872.84 is necessary to close this account, says the suit. Because of the Defendant's deceptive, misleading, and unfair representations with respect to its collection efforts, it affected and frustrated the Plaintiff's ability to intelligently respond to the Defendant's collection efforts. Thus, the funds the Plaintiff could have used to pay all or part of the alleged debt were spent elsewhere. In addition, the Plaintiff has suffered emotional and physical harm, including shock, fear and increased heartrate, the suit asserts. The Plaintiff seeks statutory damages and actual damages, costs together with reasonable attorneys' fees and expenses, pre- and post-judgment interest, and other relief as the Court may deem just and proper. Unifin, Inc. is a debt collector. [BN] The Plaintiff is represented by: Robert Yusko, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Tel: (201) 282-6500 UNITED STATES: Vaccine Case Will Remain Class-Action, Court Rules ----------------------------------------------------------------- Rachel S. Cohen at airforcetimes.com reports that a federal appellate judge has dealt another blow to the military's coronavirus vaccine mandate by allowing a high-profile class-action lawsuit against the Air Force to move forward. The U.S. Court of Appeals for the Sixth Circuit in Cincinnati opted to keep the case's class-action status in an order issued Sept. 9. The three-judge panel also said it plans to fast-track the government's appeal of an earlier district court ruling that favored the unvetoed plaintiffs who are suing on religious freedom grounds. Judge Raymond Kethledge's court order pushed back on the military's argument that stopping the mandate would cause "irreparable harm" by requiring the Department of the Air Force to retain nearly 10,000 troops who can't - or aren't allowed to - fully carry out their duties because they aren't vaccinated against COVID-19. "Those are all the very same harms that the department imposed on itself when, to its credit, it chose to grant temporary exemptions to service members" awaiting a final decision on their religious accommodation requests, the order said. Oral arguments in the appellate case are scheduled for Oct. 19. The court plans to decide the outcome in November. The court suggested that instead of enforcing a service-wide vaccine mandate and granting individual exemptions, the Air Force may be better off allowing troops to opt into the mandate instead. Doster v. Kendall in U.S. District Court in the Southern District of Ohio brings together about 10,000 airmen and Space Force guardians under a class-action suit that argues the military is unfairly forcing people to receive a vaccine, which they object to on religious grounds, or lose their job. The group includes anyone in the active duty Air Force and Space Force, Air Force Reserve, Air National Guard, U.S. Air Force Academy and Air Force Reserve Officer Training Corps who have asked for a religious exemption to the vaccine since Sept. 1, 2021, showed a sincere religious belief opposing the jab, and whose requests were denied or are not yet settled. [GN] UNIVERSAL CITY: Amended Mellon Suit Dismissed With Leave to Amend ----------------------------------------------------------------- In the case, JAMES MELLON, Plaintiff v. UNIVERSAL CITY STUDIOS, LLC, et al., Defendants, Case No. CV 22-03950 DSF (AGRx) (C.D. Cal.), Judge Dale S. Fischer of the U.S. District Court for the Central District of California denies the Plaintiff's Motion to Remand and grants the Defendant's Motion to Dismiss Mellon's First Amended Class and Representative Action Complaint in its entirety. Mr. Mellon was employed by Universal Studios from approximately June 13, 2021, through July 24, 2021. He held the job title "Retail Clerk/Carnival" and worked at different games every day in Universal Studios' amusement park in Universal City, California. He typically worked from either 11:00 a.m. to 8:00 p.m., or 2:00 p.m. to 10:00 p.m. five days a week. When Mellon arrived for work at the amusement park, he was required to go through two security checks -- a metal detector and a bag check. The security checks took approximately 5-7 minutes per shift. Mellon had to undergo the security checks before he was able to clock in for his shifts. Mr. Mellon alleges the security checks were conducted off the clock and he was "not paid for all the compensable work time during which he was under the direction and control of the Defendants." He alleges that as a result, Universal Studios failed to properly track the time he worked, failed to pay him all required minimum wages, maintained inaccurate payroll records, issued inaccurate wage statements, and failed to pay Mellon all the wages he was owed on the termination of his employment. Mr. Mellon brings a class action on behalf of himself and other similarly situated employees of Universal Studios to recover "unpaid wages and penalties." He asserts the following California state law wage and hour claims: 1) failure to pay all minimum wages owed (Cal. Lab. Code Sections 204, 558, 1194, 1197, 1198); 2) failure to provide accurate, itemized wage statements (Cal. Lab. Code Section 226, et seq.); 3) failure to pay all wages upon termination (Cal. Lab. Code Sections 201-203); 4) unfair competition (Cal. Bus. & Prof. Code Section 17200, et seq.); and 5) civil penalties under the Private Attorneys General Act (Cal. Lab. Code Sections 558, 2698, et seq.). Universal Studios removed the case from Los Angeles Superior Court based on federal question jurisdiction, and moved to dismiss the FAC in its entiret (MTD). Mellon moves for remand (MTR), and opposes the MTD. Universal Studios opposes the MTR. Universal Studios argues that Mellon's state law claims are completely preempted under Section 301 of the Labor Management Relations Act (LMRA), and therefore arise under federal law. It also asserts that Mellon's claims are "based on rights created by and/or require interpretation of a collective bargaining agreement" (CBA) that governs the terms and conditions of Mellon's employment. It further contends that Mellon's second, third, and fourth causes of action are merely derivative of the first cause of action -- that it failed to pay him minimum wage -- and "cannot be maintained if the first cause of action cannot be maintained." Mr. Mellon concedes that his employment relationship with Universal Studios was subject to a CBA. However, he contends his "statutory minimum wage (and derivative) claims are not preempted" because "they arise solely under California state law," the CBA will not need to be interpreted in order to address his claims, and his claims "seek to vindicate non-negotiable state law rights" that are not within the scope of the LMRA. Judge Fischer holds that the Court has subject matter jurisdiction over Mellon's claims. He finds that the CBA must be interpreted in order to determine whether Mellon was in fact paid for time spent going through security checks. Although Mellon is not seeking wages owed under the CBA, the CBA's walking/changing time provisions provide compensation for "any time the employee may be subject to the control of the Employer but not actually performing his or her duties. At the same time, Article 27 notes that it provides "additional benefits than required by law," which may be interpreted in at least several different ways. The Court will have to interpret Article 27 to determine whether the parties intended the walking/changing time provisions to compensate employees for time spent going through security checks. If Article 27 was intended to cover that time, Mellon would have been appropriately compensated. Even non-negotiable statutory rights may be preempted if interpretation of a CBA is required to resolve the statutory claims. Judge Fischer finds that Mellon's minimum wage claim is preempted by Section 301 and arises under federal law. Because Mellon's remaining claims -- though not grounded in the CBA -- are derivative of his minimum wage claim, they will also require interpretation of the CBA. The Court finds that the remaining causes of action are also preempted by Section 301. Mr. Mellon's motion to remand is denied. Mr. Mellon argues that Universal Studios failed to comply with the requirements of Local Rule 7-3 because the parties did not meet and confer before Universal Studios filed its motion to dismiss. Universal Studios asserts that the meet and confer took place on May 26, 2022. It contends that conference addressed its motion to dismiss the complaint before the FAC was filed. It asserts that the "preemption issues addressed in the Motion to Dismiss the Complaint over which the parties conferred pursuant to L.R. 7-3 are the same as those in the instant Motion." The Local Rules and the Court's standing order require counsel to meet and confer at least seven days prior to filing a motion like the one at issue. Judge Fischer finds that Universal Studios' counsel did not meet and confer with Mellon's counsel at least seven days prior to filing the instant motion. Although the Court admonishes Universal Studios' counsel that future disregard for the Local Rules may result in sanctions, Judge Fischer declines to strike the motion on Rule 7-3 grounds. Universal Studios moves to dismiss the FAC in its entirety on the grounds that the claims are preempted by Section 301 and the FAC fails to allege that Mellon exhausted the CBA's grievance and arbitration procedure. Judge Fischer notes that the governing CBA establishes mandatory grievance procedures that employees asserting a violation of the terms of the CBA must follow. Article 15 provides that "a grievance will be defined as any difference of opinion or dispute between the Union or an employee covered hereunder and the Employer regarding the interpretation and/or application of this Agreement." Article 15 sets out a four-step process that involves discussions between the aggrieved employee, his or her supervisor, a union representative, and a Labor Relations representative of the employer, a pre-arbitration hearing, and arbitration. The CBA also provides that Article 15 "shall be the sole and exclusive means of resolving disputes regarding the interpretation or application of this Agreement between the Union (including all employees in the bargaining unit covered by this Agreement) and the Employer." Mr. Mellon has not alleged that he exhausted his contractual remedies and the union breached its duty of fair representation. Hence, Judge Fischer grants Universal Studios' motion to dismiss with leave to amend. Mellon may amend his complaint by Sept. 26, 2022. Failure to amend by that date will result in dismissal of the FAC with prejudice. Leave to amend is granted only to address the specific claims raised in this motion. New claims or parties may be added only by a separate properly noticed motion. A red-lined version of any amended complaint must be provided to the Court's generic email. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/2p8sk3xx from Leagle.com. VALENTINO USA: Joint Request for Briefing Sched Filed in Benitez ---------------------------------------------------------------- In the class action lawsuit captioned as Josefina Benitez, et al., v. Valentino U.S.A. Inc., Case No. 1:19-cv-11463-MKV-RWL (S.D.N.Y.), the Parties ask the Court for a briefing schedule as follows: -- The Defendant's time to serve and file its opposition to the Motion is extended from September 9, 2022, until October 11, 2022; and -- The Plaintiffs’ time to serve and file their reply brief in further support of their Motion is extended from September 16, 2022, to November 1, 2022. A copy of the Parties' motion dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3L4ys8M at no extra charge.[CC] The Defendant is represented by John B. Fulfree, Esq. MORRISONCOHEN LLP Telephone: (212) 735-8850 E-mail: jfulfree@morrisoncohen.com VERVENT INC: Second Amended Scheduling Order Entered in Aliff ------------------------------------------------------------- In the class action lawsuit captioned as JODY ALIFF, individually and on behalf of all others similarly situated, et al., v. VERVENT, INC., et al., Case No. 3:20-cv-00697-DMS-AHG (S.D. Cal.), the Hon. Judge Allison H. Goddard entered an second amended scheduling order as follows:: -- The Plaintiff shall move for September 6, 2022 leave to file a second amended complaint by: -- The Defendant's Opposition must September 13, 2022 be filed by: -- The Plaintiffs' Reply must be September 19, 2022 filed by: -- The counsel-only settlement September 21, 2022 videoconference remains on calendar for: -- The Plaintiffs are permitted October 7, 2022 to file an Amended Motion for Class Certification by: -- The Defendant's Opposition October 21, 2022 must be filed by: -- The Plaintiffs' Reply must October 28, 2022 be filed by: -- A Mandatory Settlement March 22, 2023 Conference shall be conducted on: Vervent is a financial service provider company. A copy of the Court's order dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3d2ScNs at no extra charge.[CC] VITAL RECOVERY: Faces Klein Suit Over Deceptive Collection Letter ----------------------------------------------------------------- YAFFA KLEIN, individually and on behalf of all others similarly situated, Plaintiff v. VITAL RECOVERY SERVICES, LLC, Defendant, Case No. 525216/2022 (N.Y. Sup. Ct., August 30, 2022) brings this class action complaint against the Defendant for its alleged violations of the Fair Debt Collection Practices Act. The Plaintiff has an alleged debt incurred some time prior to November 3, 2021 for a car lease to non-party Infiniti Financial Services, who listed the account with the Defendant to collect on the alleged debt. According to the complaint, the Defendant sent the Plaintiff a collection letter on or about November 3, 2021 in an attempt to collect the alleged debt. However, the Defendant's letter allegedly listed a false or deceptive amount to make it appear that nothing was owed for interest or fees in order to make it appear that the balance consisted only of principal. The Defendant has violated Section 1692e by making a false and misleading representation by stating a zero-balance owed for interest and fees when the actual balance included interest and/or fees; and by falsely representing the character, amount or legal status of the debt, says the suit. As a result, the Plaintiff asserts that she was forced to waste time and money in determining her response to the letter. The Plaintiff also claims that she has suffered emotional distress, including anxiety and sleeplessness. Thus, on behalf of herself and all other similarly situated individuals, the Plaintiff seeks statutory damages and actual damages, costs together with reasonable attorneys' fees and expenses, pre- and post-judgment interest, and other relief as the Court may deem just and proper. Vital Recovery Services, LLC is a debt collector. [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: ryusko@steinsakslegal.com VOPAK TERMINAL: Morris Wage-and-Hour Suit Goes to C.D. California ----------------------------------------------------------------- The case styled MARVIN JANIS MORRIS, individually and on behalf of all others similarly situated v. VOPAK TERMINAL LOS ANGELES INC.; VOPAK TERMINAL LONG BEACH INC.; and DOES 1 through 20, inclusive, Case No. 22STCV15823, was removed from the Superior Court of California, County of Los Angeles, to the U.S. District Court for the Central District of California on September 12, 2022. The Clerk of Court for the Central District of California assigned Case No. 2:22-cv-06505 to the proceeding. The case arises from the Defendants' alleged violations of the California Labor Code. Vopak Terminal Los Angeles Inc. is a terminal operator, headquartered in Wilmington, California. Vopak Terminal Long Beach Inc. is a terminal operator, located in Long Beach, California. [BN] The Defendants are represented by: John Erin McOsker, Esq. Daphne M. Anneet, Esq. Tricia A. Pham, Esq. BURKE, WILLIAMS & SORENSEN, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 Telephone: (213) 236-0600 Facsimile: (213) 236-2700 E-mail: jmcosker@bwslaw.com danneet@bwslaw.com tpham@bwslaw.com WAL-MART STORES: Zanetich Labor Suit Removed to D. New Jersey ------------------------------------------------------------- The case styled ERICK ZANETICH, on behalf of himself and those similarly situated, Plaintiff v. WAL-MART STORES EAST, INC. d/b/a WALMART, INC. and SAM'S EAST, INC. d/b/a/ SAM'S CLUB FULFILLMENT CENTER, Defendants, Case No. GLO-L-000605-22, was removed from the Superior Court of New Jersey for Gloucester County to the U.S. District Court for the District of New Jersey on Sept. 2, 2022. The Clerk of Court for the District of New Jersey assigned Case No. 1:22-cv-05387 to the proceeding. The Plaintiff purports to bring this action on behalf of himself, individually, and on behalf of those similarly situated who have suffered damages. Specifically, as stated in the complaint: "Plaintiff seeks to represent a class of all persons who, since on or after February 22, 2021: (1) were denied employment by Defendants in the state of New Jersey because he or she tested positive for marijuana in pre-employment drug screen; and/or (2) were subject to any other adverse employment action because he or she tested positive for marijuana." In Count II of the complaint, Plaintiff raises a cause of action against Defendants for failure to hire/wrongful discharge in violation of New Jersey public policy. Wal-Mart Stores East, Inc. is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores from the United States.[BN] The Defendants are represented by: Tracey E. Diamond, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP Suite 400 301 Carnegie Center Princeton, NJ 08540-6227 Telephone: (609) 951-4235 - and - Christopher Moran, Esq. Leigh H. McMonigle, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 WALLACE ENTERPRISES: Basilio Suit Alleges Unpaid Wages and Tips --------------------------------------------------------------- JENNIFER BASILIO and BRIANNA BASILIO, individually and on behalf of all others similarly situated, Plaintiffs v. WALLACE ENTERPRISES LLC, MARVIN WALLACE, 5WS LLC and RONALD MCMILLAN, Defendants, Case No. 2:22-cv-01514 (D. Nev., September 12, 2022) is a class action against the Defendants for unpaid minimum wages, unpaid overtime wages, improperly taken tips in violation of the Fair Labor Standards Act and the Nevada State Law. The Plaintiffs were employed at the Defendants' restaurant and food services business in Nevada. Wallace Enterprises LLC is a limited liability company that engages restaurant and food services business, with its principal place of business in Clark County, Nevada. 5WS LLC is a limited liability company that engages restaurant and food services business, with its principal place of business in Clark County, Nevada. [BN] The Plaintiffs are represented by: Leon Greenberg, Esq. Ruthann Devereaux-Gonzalez, Esq. LEON GREENBERG PROFESSIONAL CORPORATION 2965 South Jones Blvd., Suite E3 Las Vegas, NV 89146 Telephone: (702) 383-6085 Facsimile: (702) 385-1827 E-mail: leongreenberg@overtimelaw.com WELLPET LLC: Brown Files Bid for Class Certification ---------------------------------------------------- In the class action lawsuit captioned as JAMES BROWN, on behalf of himself and all others similarly situated, v. WELLPET, LLC, Case No. 3:21-cv-00576-HAB-MGG (N.D. Ind.), the Plaintiff asks the Court to enter an order granting his motion for class certification. Wellpet produces and supplies pet food products. A copy of the Plaintiff's motion to certify class dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3QzAq2d at no extra charge.[CC] The Plaintiff is represented by: Laura L. Sheets, Esq. Steven D. Liddle, Esq. Laura L. Sheets, Esq. Lance Spitzig, Esq. LIDDLE SHEETS COULSON, P.C. 975 E. Jefferson Avenue Detroit, MI 48207-3101 Telephone: (313) 392-0015 E-mail: sliddle@lsccounsel.com lsheets@lsccounsel.com lspitzig@lsccounsel.com - and Marshall P. Whalley, Esq. Kara Bekelya, Esq. MARSHALL P. WHALLEY & ASSOCIATES, P.C. 51 W 112th Avenue Crowe Point, IN 46307 Telephone: (219) 769-2900 E-mail: marshall@marshallslaw.com kara@marshallslaw.com staff@marshallslaw.com WESTMINSTER-CANTERBURY: Wheaton Sues Over Nurses' Unpaid Wages -------------------------------------------------------------- DONNA WHEATON, on behalf of herself and all others similarly situated, Plaintiff v. WESTMINSTER-CANTERBURY OF THE BLUE RIDGE, Defendant, Case No. 3:22-cv-00050-NKM (W.D. Va., Sept. 5, 2022) is an action for unpaid overtime in violation of the Fair Labor Standards Act and the Virginia Overtime Wage Act, and for unpaid gap time and regular wages under the Virginia Wage Payment Act. This suit involves two basic claims: (a) that Defendant has violated the FLSA, VOWA, and VWPA through a policy or practice of requiring, suffering or permitting hourly-pay head nurses and other employees similarly situated to Plaintiff to work off the clock without pay, and (b) that Defendant has violated the FLSA and VOWA through a policy or practice of omitting non-discretionary bonuses and similar forms of incentive compensation from its calculation of overtime rates paid to non-exempt employees. Plaintiff Wheaton worked for Defendant WCBR in Charlottesville as a nurse from approximately May 2, 1996 through July 21, 2022. During the time period relevant to this action, Plaintiff was a head nurse. Westminster-Canterbury of the Blue Ridge operates skilled nursing facilities with principal place of business in Charlottesville, Virginia.[BN] The Plaintiff is represented by: Timothy Cofheld, Esq. COFFIELD PLC 106-F Melbourne Park Circle Charlottesville, VA 22901 Telephone: (434) 218-3133 Facsimile: (434) 321-1636 E-mail: tc@coffieldlaw.com WILCO LIFE: Parties Seek More Time to File Class Certification Bid ------------------------------------------------------------------ In the class action lawsuit captioned as JULIE GRUNDSTROM, Individually, and as successor-in-interest to DR. RICHARD I. APPLETON and on Behalf of the Class, v. WILCO LIFE INSURANCE COMPANY, Case No. 3:20-cv-03445-MMC (N.D. Cal.), the Parties asks the Court to enter an order granting their joint stipulation extending discovery and class-certification deadlines as follows: -- Defendant's deadline to disclose Nov. 1, 2022 experts as to class certification motion: -- Deadline to complete fact and Nov. 15, 2022 expert discovery related to class certification motion: -- Plaintiff's deadline to file Jan. 20, 2023 motion for class certification: Wilco operates as an insurance company. The Company provides life, accident, and health insurance services to individuals. A copy of the Parties' motion dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3L4eStf at no extra charge.[CC] XPO LAST: Muniz, et al., Seek to Certify Class of Delivery Drivers ------------------------------------------------------------------ In the class action lawsuit captioned as JUSTIN MUNIZ, MOHAMMED BELAABD, NELSON QUINTANILLA, JOSE DILONE, and VICTOR AMARO, on behalf of themselves and all others similarly situated, v. XPO LAST MILE, INC., Case No. 4:18-cv-11905-TSH (D. Mass.), the Hon. Judge Timothy S. Hillman entered an order certifying the following class: "All individuals who personally or on behalf of their business entity, signed a Service Agreement with XPO and who personally performed deliveries for XPO full-time in Massachusetts between July 2015 and the present;" The term "full-time" means "personally making deliveries at least 80 percent of the days XPO assigns routes to the contractor for at least three months and who average performing deliveries for XPO at least four days a week during that time span." The Court appoints Justin Muniz, Mohammed Belaabd, Jose Dilone, and Victor Amora as class representatives, and Lichten & Liss-Riordan, P.C. as class counsel. Class counsel shall file a proposed class notice, consistent with this order, by September 9, 2022. If XPO objects to the proposed class notice, it shall file its own proposed class notice by September 16, 2022, the Court says. The plaintiffs are delivery drivers who contracted with XPO, a federally authorized freight forwarder, to deliver appliances and other large consumers goods for XPO's retail clients. The plaintiffs allege that XPO misclassified them as independent contractors and unlawfully deducted wages from their pay in violation of the Massachusetts Wage Act, M. G. L. c. 149, sections 148 and 150. XPO is a company that operates in the Logistics and Supply Chain industry. A copy of the Court's order dated Aug. 31, 2022 is available from PacerMonitor.com at https://bit.ly/3quoJiQ at no extra charge.[CC] [*] Efficacy of Class Action Waivers in Australia Discussed ----------------------------------------------------------- Ross McInnes and James Walker at claytonutz.com reports that the Full Court of the Federal Court has considered whether contracts which purport to exclude a right to participate in class action are enforceable under Australian law. After the decision in Carnival plc v Karpik (The Ruby Princess) [2022] FCAFC 149 by the position is not entirely clear, with each of the three judges delivering separate reasons and the class action waiver considered by the Full Court governed by US law. However, the decision still provides useful guidance for businesses considering the efficacy of class action waivers in standard form contracts in Australia. The key takeaways from the decision are: -- where a standard form contract includes an enforceable foreign exclusive jurisdiction clause, and class action waivers are permitted by the law of that foreign jurisdiction (in this case, Californian law), Australian courts will be inclined to uphold a class action waiver. However, courts are not likely to uphold exclusive jurisdiction clauses that are contrived to avoid Australian law; -- Part IVA of the Federal Court of Australia Act 1976 (Cth) does not prohibit class action waivers. Consumers are free to contract out of their rights under Part IVA by agreeing that they will opt out of a class action arising from the contract containing the waiver in advance of any class action being commenced; and -- a particular class action waiver may still be ineffective if found to be contrary to the Australian Consumer Law, such as where it is an unfair contract or if reliance on the waiver would amount to unconscionable conduct. Prominently displaying the waiver and directing the consumer's attention to it before they enter into the contract will weigh in favour of the waiver being effective. Class action waivers A class action waiver (or "arbitration clause") is a clause in a contract securing a consumer's agreement not to participate in a class action arising from the contract. Australian law permits a consumer to waive their statutory rights unless to do so would be contrary to an applicable statute, either its express words or a necessarily implied meaning. Despite being well established in the United States, Australian courts have said little about class action waivers and there are open questions about whether these waivers are unfair or unconscionable contracts under the Australian Consumer Law. If found to be unfair or unconscionable, a waiver is void or unenforceable. The leading US Supreme Court decision, AT&T Mobility LLC v Concepcion 563 US 333 (2011), upheld a waiver in these terms and overturned a lower court's decision that it was an unconscionable contract: "You and A&AT agree that each may bring claims against the other only in your or its individual capacity, and not as plaintiff or class member in any purported class action or representative proceeding." In contrast, a recent Canadian Supreme Court decision found that a clause in an employment contract requiring a delivery driver to resolve any dispute with Uber through mediation and arbitration in the Netherlands was an unconscionable contract. The mediation and arbitration process required up-front administrative and filing fees of US$14,500, plus legal fees and other costs of participation. The Court's decision in Uber Technologies Inc v Heller 2020 SCC 16 was influenced by the lack of information in the contract about the costs of arbitration and the nature of the contract as a standard form contract or "contract of adhesion". These contracts are characterised by the unequal bargaining position between the parties resulting from the inability of a consumer or other individual party to negotiate the terms of the contract. The Full Court's decision Class members of The Ruby Princess class action, who allege negligence and breaches of the Australian Consumer Law in relation to the infamous COVID-19 impacted voyage by that vessel in early 2020, were subject to one of three different standard form versions of the passenger terms and conditions. Only class members subject to the US terms and conditions agreed to a class action waiver. In part, the waiver stated: "Waiver of class action: This passage contract provides for the exclusive resolution of disputes through individual legal action on your own behalf instead of through any class or representative action. Even if the applicable law provides otherwise, you agree that any arbitration or lawsuit against [the] Carrier whatsoever shall be litigated by you individually and not as a member of any class or as part of a class or representative action, and you expressly agree to waive any law entitling you to participate in a class action." At first instance, Justice Stewart found that the waiver was not properly incorporated into the US terms and conditions but that, if it had been, it was an unfair contract contrary to the Australian Consumer Law. The Full Court focused on the case of Mr Ho. Mr Ho, a Canadian resident who entered into the US terms and conditions while in Canada or the US, was the US terms and conditions sub-group representative. All three judges agreed the US terms and conditions were incorporated into Mr Ho's contract. Chief Justice Allsop found that the class action waiver was not unfair, as it was permitted under the proper law of the contract - that is, US law - and considering Mr Ho's residence in Canada. His Honour agreed with Justice Stewart that the waiver should be interpreted, in the context of Part IVA of the Federal Court Act, as requiring a class member to opt out of a class action. Significantly, that context included section 33J(2) of the Federal Court Act which permits class members to opt out before an opt out notice is published. His Honour also found Part IVA did not prohibit class action waivers: "I do not see any policy or purpose of Pt IVA infringed by a party freely and fairly agreeing in advance of receipt of the notice from the Court setting the date by which the opt out is to occur, as part of a contractual relationship, to oblige itself, herself or himself not to participate in a class action, and thereby become obliged to exercise that power to opt out. If the permissive and beneficial procedure of Pt IVA is not to be capable of being waived in a free and fair bargain in advance of proceedings being brought such should be stated by Parliament. I do not discern the necessary intendment of such from Pt IVA." Rather, whether a class action waiver was enforceable would depend on an assessment of the waiver and the contract it was incorporated into. His Honour cautioned: "There might be little doubt that in many cases of Australian consumer contracts it would be unfair and unjust for standard form contracts, as contracts of adhesion, to seek to impose a waiver of the operation of Pt IVA or any other statute of a State or Territory of similar character." Justice Derrington found the class action waiver was not unfair. His Honour's analysis centred on section 24 of the Australian Consumer Law, which sets out factors to be considered when determining whether a contract is unfair under section 23. By reference to some of the section 24 factors, his Honour found: -- there was no significant imbalance in the parties' rights under waiver, it being restricted to the manner in which a claim may be conducted; -- the waiver was in The Ruby Princess parties' legitimate interests as they had a "legitimate interest in avoiding the burden of class actions being brought against it, whether in Australia or in the United States" and "in dealing with the claims made against it" in its choice of forum, namely California; -- in the absence of evidence about Mr Ho's capacity to conduct individual proceedings in California it was not possible to give weight to the detriment the waiver may have caused Mr Ho; and -- the Ruby Princess parties "did everything that was reasonably necessary to bring the class action waiver and the other significant clauses of the US Terms and Conditions to [Mr Ho's] attention." On this last point, his Honour found reasonable notice had been given to Mr Ho in circumstances where the online booking confirmation process included a prominent "IMPORTANT NOTICE" hyperlinking a consumer to the US terms and conditions containing the class action waiver. His Honour concluded: "In the context of electronic commerce, the manner in which those terms and conditions were made available in the circumstances amounted to a reasonable notice and Mr Ho was able to consider them well prior to the crystallisation of any agreement." Referring to section 33J(2) of the Federal Court Act, his Honour also found that the class action waiver was not contrary to Part IVA of the Act. Justice Rares reached the contrary conclusion to Chief Justice Allsop and Justice Derrington and found that The Ruby Princess parties could not contract out of Part IVA. His Honour found that the waiver was contrary to the purpose of Part IVA opt out procedure, which provides for opt out after class members had the benefit of the information contained in the opt out notice published by the Court. By requiring a consumer to agree to opt out prior to publication of the notice, the waiver had the effect of depriving consumers of making a fully informed decision about the exercise of their opt out rights: "A construction of Pt IVA that permitted enforcement of a class action waiver clause would negate, first, the legislative intention to enhance access to justice and the efficiency of the exercise of the judicial power of the Commonwealth, and secondly, the right of a group member to decide whether to exercise the right to opt out of a representative proceeding after it has commenced." This conclusion meant his Honour did not address whether the class action waiver was an unfair contract. His Honour did note that the waiver had the effect of altering the description of the class membership in a way that circumvented the Court's statutory power to make this alteration. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***