/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220921.mbx C L A S S A C T I O N R E P O R T E R Wednesday, September 21, 2022, Vol. 24, No. 183 Headlines 7-ELEVEN INC: Suit Over Recycling Marketing Partially Dismissed 99 CENTS ONLY: Court Approves Voluntary Dismissal of Heard Suit ANNAPOLIS, MD: Motion for Class Cert. Filed in Discrimination Suit ARBOR REALTY: Court Narrows Claims in CASA's 1st Amended Complaint BERNALILLO CTY., NM: Disengagement of Domain #3 in McClendon Denied BP EXPLORATION: Court Dismisses Milsap B3 Case With Prejudice BRAXIA SCIENTIFIC: CDN $1.9-M Deal in Shareholders' Suit Gets OK BURGESS MODERN: Senior Files ADA Suit in S.D.N.Y. CAPITAL READY: Face Class Action in Calif. Over Unpaid Wages CATHOLIC SUPPLY: Dicks Files ADA Suit in S.D. New York CENTENE CORP: Fails to Provide Adequate Coverage, Class Suit Says COBB TACTICAL SECURITY: Miller Sues Over Unpaid Overtime Wages COCA-COLA CO: Faces Class Suit Over Mislabeled Fruit-Flavored Soda COLLABORATIVE BOATING: Kuhn Sues Over Unlawful Telephonic Calls COLUMBIA SPORTSWEAR: Cody Suit Removed to C.D. California CONSUMER DIRECT: Miranda Suit Remanded to King County Super. Court CONTEMPORARY ART: Senior Files ADA Suit in S.D.N.Y. CREDIT SOLUTIONS: Mitchell Suit Removed to N.D. Illinois CVS PHARMACY: Court Dismisses Marquard Class Suit With Prejudice DAVIS LUMBER: Hickman Sues Over Unpaid Overtime Compensation DC SITE SERVICES: Johnson Sues Over Failure to Pay Overtime Wages DOLLAR GENERAL: Does Not Provide Written Warranties, Allinder Says DUBOIS TREE: Ramirez Sues to Recover Unpaid Overtime Wages DVINE GOURMET: Toro Files ADA Suit in S.D. New York ELECTROLUX HOME: SMCA's & SATL's Bids to Dismiss Mendoza Suit OK'd EXPEDIA GROUP: Sued Over Unlawful Interception of Communications FCI TOTAL HOMES: Loja Sues Over Unpaid Overtime Compensation FINANCIAL RECOVERY: Grice Files FDCPA Suit in W.D. New York FIRST CHOICE: Natwick Sues Over Unpaid Minimum, Overtime Wages FIRST STUDENT: Scott Labor Suit Removed to N.D. California FORD MOTOR: Rhodes Sues Over Fraudulent Concealment FOX REHABILITATION: Loses Bid for Summary Judgment in Conner Suit FRANK MARANDO: Landaverde Sues Over Landscapers' Unpaid Wages FUTURE MOTION: Wang Sues Over Defective Electronic Skateboard GAMESTOP INC: Licea Sues Over Unlawful Wiretapping Software GEICO CASUALTY: Court Administratively Closes Class Action GLOBAL BROKERAGE: Rosenfeld Withdraws as Counsel in Securities Suit GOLDMAN SACHS: Bid to Dismiss Retirement Plan Class Suit Granted GROCERY DELIVERY: McClure Sues Over Illegal Automatic Renewal H.B. FULLER: Rouse Sues Over Unlawful Misrepresentation HEALTHLINE MEDIA: Hughley Sues Over Disclosure of Users' Identities HERBS & ARTS: Loadholt Files ADA Suit in S.D. New York HERBS THAI BISTRO: Perez Sues Over Unpaid Minimum, Overtime Wages HIGHT ENTERPRISES: Loadholt Files ADA Suit in S.D. New York HOLIDAY HOSPITALITY: Park 80 Files Suit in N.D. Georgia HONOLULU, HI: Class Suit Tolling Applies, Court Rules in Coles Suit HOOVER TREATED WOOD: Dean Files FLSA Suit in E.D. Arkansas HQ-PACK INC: Kampa Sues Over Unpaid Overtime Compensation HUDSON GOLF: Post Files Suit in Mass. Super. Ct. HUT AMERICAN: Fails to Pay Proper Wages, Wood Suit Alleges LA CASA: Bonilla Labor Suit Removed to S.D. Fla. LIFEVANTAGE CORP: Court Denies Smith's Class Cert. Bid; Stays Case MASSACHUSETTS INTERSCHOLASTIC: Jones Suit Removed to D. Mass. MDL 2913: Lander Cty. School Files Suit Over E-Cigarette Crisis MDL 2913: Sevier Cty. School System Sues Over E-Cigarette Crisis NEW YORK, NY: Faces Suit Over Illegal Racketeering Enterprise OHIO: Poffenbarger v. Kendall Stayed Pending Doster Suit Resolution PALANTIR TECHNOLOGIES: Lead Plaintiff Appointment Due Nov. 14 PALO ALTO, CA: Reaches Tentative Settlement Over Overcharges Suit PERRIGO CO: Overstates Baby Formula Yield, Frederick Suit Claims S&P DATA OHIO: Gresham Sues Over Unpaid Wages and Overtime Premiums SAMSUNG ELECTRONICS: May Face Suit Over Defective Smartphones SANTA FE NATURAL: Faces Class Action Over Mislabeled Cigarettes SEALY INC: Class Cert. Denial & Judgment in Sarmiento Suit Upheld SECURIX LLC: Uses Traffic Cameras to Scan Car Insurance, Suit Says SENIOR VILLAGE: Fails to Pay Proper Wages, Williams Alleges SIMAREN CORP: Davis Sues Over Failure to Pay Overtime Compensation SMILEDIRECTCLUB INC: Faces Ciccio Securities Suit SMILEDIRECTCLUB LLC: S.D. Fla. Denies Motion to Dismiss FTSA Suit SOUTHWEST AIRLINES: Jimenez Files FLSA Suit in E.D. New York STONE & SAUNDERS: Radwane Files TCPA Suit in S.D. Ohio TC DEVA: Court Approves Voluntary Dismissal of Hamlin Class Suit TD BANK NA: Herrera Sues Over Failure to Safeguard PII TIFFANY & CO: Cody Suit Removed to C.D. California TRANS UNION: Gray Files Suit Over Inaccurate Consumer Credit Report TRANSDEV ALTERNATIVE: Tio Labor Suit Removed to N.D. California TRANSPERFECT TRANSLATIONS: Faces Beachy Suit Over Unpaid Overtime UNITED STATES: Denies Religious Rights to Vaccine Mandate UNITEDHEALTH GROUP: Wins Suit Over Office Surgery Facility Fees VERMONT: Court Dismisses Abdel-Fakhara Class Suit W/o Prejudice VIATRIS INC: Court Approves Settlement in Antitrust Suit VOLKSWAGEN GROUP: Mandani Counsel to Clarify Amount of Sought Fees VROOM INC: Martinez Suit Removed to C.D. California WARBY PARKER: Cody Suit Removed to C.D. California ********* 7-ELEVEN INC: Suit Over Recycling Marketing Partially Dismissed --------------------------------------------------------------- Jessy Edwards at topclassactions.com reports that 7-Eleven is not deceiving consumers by advertising products as recyclable, even if most centers in the country are not equipped to recycle them, an Illinois federal judge has ruled, while dismissing part of a class action against the retailer. In an order filed Sept. 14 in an Illinois federal court, U.S. District Judge Steven C. Seeger dismissed part of a class action lawsuit lodged against 7-Eleven Inc. by plaintiff Devon Curtis. The lawsuit took aim at certain disposable plates and cups sold by the store, alleging it was wrong to label them as "recyclable" when most recycling centers in the country won't currently recycle them. However, Judge Seeger disagreed with the plaintiff's argument as to the definition of the word "recyclable." "'Recyclable' means 'can be recycled,'" Judge Seeger wrote. "It does not mean 'will be recycled.' It does not mean 'probably will be recycled.' It does not mean 'easy to recycle.' It does not mean 'destined for a new life through recycling at a nearby, economically prosperous facility near the place of purchase.'" 7-Eleven's products not equipped for recycling, lawsuit alleges Curtis alleges that 7-Eleven deceived customers by marking certain disposable products from its "24/7 Life" brand as recyclable when they are not. The plastic and foam products could not be recycled because they are made from materials that most recycling centers are not equipped or choose not to recycle, she says. Meanwhile, some 24/7 products are missing the labels that recycling centers need to sort plastics by type of material. While the claims based on the definition of recycling were dismissed, the other claims can move ahead, Judge Seeger ruled. The news comes as 7-Eleven faces a class action lawsuit alleging it misleads consumers and sells JUUL E-Cigarettes as a "safer or at least comparable" alternative to cigarettes. In April, 7-Eleven was hit with another class action alleging it uses facial recognition technology to collect and store the biometric data of its customers without their consent. [GN] 99 CENTS ONLY: Court Approves Voluntary Dismissal of Heard Suit --------------------------------------------------------------- In the case, DEBORAH HEARD, Plaintiff v. 99 CENTS ONLY STORES, LLC, Defendant, Case No. 2:21-cv-00069-DAD-DB (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California dismisses the action with prejudice. On Aug. 26, 2022, the parties filed a stipulation to voluntarily dismiss the putative class action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). They also stipulated that they will each bear their own fees and costs. Pursuant to the parties' stipulation and good cause appearing, Judge Drozd dismisses the action with prejudice. The parties will bear their own fees and costs. All pending deadlines and hearing dates are vacated. The Clerk of the Court is directed to close the case. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/2s3hkk8a from Leagle.com. ANNAPOLIS, MD: Motion for Class Cert. Filed in Discrimination Suit ------------------------------------------------------------------ Brooks DuBose at capitalgazette.com reports that the attorneys for a group of public housing residents have asked a judge to recognize them as a class as part of a discrimination lawsuit against the City of Annapolis. More than a year after Tamara Johnson and Tyonna Holliday, two public housing residents, filed a class-action lawsuit against the city alleging that its failure to inspect their homes led to health problems, such as asthma and lead exposure, for them and their children, their attorneys have filed a motion for class certification. If approved, the class would include, "All individuals now living who are currently [public housing] tenants, or who previously were tenants in housing authority properties" within the last three years, according to a motion filed by attorneys Joe Donahue, Peter Holland and Emanwell Turnbull Thursday in U.S. District Court in Maryland. The plaintiffs are seeking financial damages for the alleged violation of their civil rights. According to the complaint, about 1,600 residents lived in HACA properties in 2019. As of 2021, that number was closer to 1,450 after Newtowne 20, a 78-unit property off Forest Drive, was demolished the year before. Newtowne residents would still be eligible to be class members, according to the complaint. Not included in the proposed class are the more than four dozen plaintiffs in White v. City of Annapolis, a federal discrimination lawsuit filed in 2019 and settled in federal court in 2020, resulting in a combined $1.8 million settlement and two separate consent decree agreements by the city and the Annapolis housing authority to institute a range of housing policy reforms. The allegations in that case were nearly identical to those made by Johnson and Holliday. Employees or contractors for the Annapolis housing authority or their relatives, employees of the U.S. District Court in Maryland and anyone who filed for bankruptcy and received a discharge after leaving a HACA property would also be ineligible, according to the motion. Last summer, attorneys for the city sought to have the case dismissed. Ten months later, a federal judge allowed the case to proceed. Annapolis attorneys responded in May by filing a third-party complaint against the U.S. Department of Housing and Urban Development, alleging that because the federal agency provides funding to the Annapolis housing authority, it is ultimately responsible for the poor living conditions and health issues claimed by Johnson and Holliday. The city also filed a separate but similar complaint against the housing authority related to a wrongful death complaint filed around the same time as the class action suit. Thursday's motion cites extensive case law in its effort to convince a judge that the housing authority residents should be considered a class, noting that the court has "broad discretion in deciding whether to certify a class" so long as it satisfies a set of requirements. First, the class must be numerous. The complaint identifies as many as 1,400 public housing tenants that would qualify for the class. The second and third requirements are commonality and typicality, legal terms meaning there is a set of factual and legal questions raised in the complaint such as the city's lack of an inspection policy, and potential discrimination, as a result, that is shared by the entire group. "In short, the inquiry is whether Plaintiffs are class members who can assert the same claims, on the same basic facts as the other class members. That is the case here," the complaint reads. "Plaintiffs' claims are not based on any unique circumstances and are not legally different from the claims of the other class members because they were all residents in public housing subject to the same [policies]." The motion also lays out arguments that the attorneys for the plaintiff are qualified and will adequately represent them in the case. Donahue was the plaintiff's attorney in the White case and represents the family of DaMon Fisher in the wrongful death suit. Holland, meanwhile, has prosecuted multiple class action suits across the country. The city has yet to file a response to the motion. City Attorney Mike Lyles could not be reached for comment Friday. [GN] ARBOR REALTY: Court Narrows Claims in CASA's 1st Amended Complaint ------------------------------------------------------------------ In the case, CASA de MARYLAND, INC., et al. v. ARBOR REALTY TRUST, INC., et al., Civil Action No. DKC 21-1778 (D. Md.), Judge Deborah K. Chasanow of the U.S. District Court for the District of Maryland issued a Memorandum Opinion: (i) granting in part and denying in part the motions to dismiss the First Amended Complaint filed by Arbor Realty Trust, Inc., Arbor Realty Limited Partnership, Arbor Realty SR, Inc., Arbor Management Acquisition Co., LLC, Hyattsville United, LLC, Bedford United, LLC, Victoria United, LLC, and Realty Management Services, Inc.; (ii) denying the motions to compel the opening of discovery filed by the collective Plaintiffs; and (iii) denying the motion for leave to file surreply filed by Arbor Management Acquisition Co., Hyattsville United, Bedford United, and Victoria United. Arbor Realty Trust, Arbor Realty Limited Partnership, Arbor Realty SR, and Arbor Management Acquisition Co. "operate collectively" to own and/or control approximately 139 multifamily residential developments in 12 states. Arbor Realty Trust is a publicly traded real estate investment trust ("REIT") incorporated in Maryland. It is a real estate finance company that invests in real estate-related loans and assets, such as multifamily apartment buildings. Arbor Realty Limited Partnership is the operating partnership of Arbor Realty Trust. Arbor Realty SR is also an REIT incorporated in Maryland and a "Significant Subsidiary of" Arbor Realty Trust. As a subsidiary of Arbor Realty Trust, Arbor Realty SR makes the initial investment in Arbor holding companies, enabling Arbor entities to acquire ownership of real estate. Arbor Management Acquisition Co. ("AMAC") is a subsidiary of Arbor Realty Trust, a member of the "Arbor family of companies," and a national commercial real estate investment firm that owns and operates real estate across the country. The Plaintiffs allege that among the properties AMAC owns and/or controls are two multifamily apartment buildings which are the subject of this action, Bedford Station and Victoria Station (collectively, the "BVS Properties"). Each property, consisting of one and two bedroom units, was constructed in 1947 and is located in Langley Park, Maryland. Arbor Realty Trust, Arbor Realty Limited Partnership, Arbor Realty SR, and AMAC are alleged to be part of a collective that makes decisions for the Arbor business pyramid. The Plaintiffs refer to these four Defendants collectively as the "Arbor Family Defendants." Three other Defendants are alleged to be part of the pyramid topped by Arbor Realty Trust. Hyattsville United is a single purpose single member Delaware limited liability company which "is owned and controlled by Arbor Realty Trust." It is the sole member of Defendants Bedford United and Victoria United. Bedford United and Victoria United are holding shell companies for the Bedford Station Apartments and Victoria Station Apartments, respectively. The Plaintiffs refer to these seven Defendants collectively as the "Arbor Related Defendants." They allege that this corporate family invests in real estate across the country. At the top, Arbor Realty Trust decides which properties to purchase. Arbor SR then makes a loan to a holding entity, which purchases the real estate. The holding entity then assigns the rents to Arbor SR as collateral. In the case, the BVS Properties were purchased by Bedford United and Victoria United in 2013 with a loan from Arbor SR. Arbor Realty Trust recorded alongside each deed an Assignment of Leases and Rents to Arbor SR. The mortgages were subsequently refinanced with a third-party, German American Capital Corporation. Finally, the eighth Defendant is not part of this hierarchy. Instead, Realty Management Services is the management company operating the BVS Properties on behalf of its co-defendants. It does business as "Ross Management." The Plaintiffs are seven tenants of the BVS multifamily apartments, as well as immigrant advocacy organization CASA de Maryland. Tenant Plaintiffs have national origins of either El Salvador or Guatemala, and describe themselves as Hispanic men and women. The Plaintiffs complain of disrepair, rodent infestations, and other failures to maintain and repair at the BVS Properties. They allege that the eight Defendants discriminated against them through the deficient maintenance and repair of their apartments. According to them, the Defendants established four "policies" which result in a failure to maintain the properties. The alleged policies are not formal policies but are instead labels the Plaintiffs have assigned to conduct on the part of the "Arbor Related Defendants." Those policies are: Financialization Policy - using multifamily housing as a financial instrument; Harvesting Policy - acquiring properties with different intentions for upkeep and renovation depending on the cost of doing that work versus revenue the properties will generate with or without investment; among the properties purchased are cash cow properties which the Arbor Family Defendants acquire with intent to make little to no capital improvement while continuing to obtain rents from the property; Divestment Policy -scheduling and funding property maintenance by the age and/or value of the property; and Delegation of Duties, or Outsourcing Policy - outsourcing day to day management of properties to third-party management companies. On July 19, 2021, the Plaintiffs filed their complaint against the eight Defendants. The Defendants moved to dismiss for failure to state a claim. The Plaintiffs responded by filing the First Amended Complaint. The Defendants again moved to dismiss for failure to state a claim. The Plaintiffs opposed, and the Defendants replied. During the pendency of the motions to dismiss, the Plaintiffs filed a motion to compel the opening of discovery, and some of the Defendants filed a motion for leave to file surreply in opposition to the motion to compel the opening of discovery. The First Amended Complaint asserts eight claims: Violation of Section 804(a) of the Fair Housing Act, 42 U.S.C. Section 3604(a); Violation of Section 804(b) of the Fair Housing Act, 42 U.S.C. Section 3604(b); Perpetuation of Segregation in violation of the Fair Housing Act, 42 U.S.C. Section 3601; violation of Section 818 of the Fair Housing Act, 42 U.S.C. Section 3617; Breach of Contract (lease agreement); Breach of the Implied Warranty of Habitability for Violation of Local Code; Breach of Contract (management agreement); and Civil Conspiracy. All claims are brought against all Defendants, except for Count VII, which is brought against only Realty Management. The First Amended Complaint purports to bring class action claims on behalf of a "BVS Class" -- a class of all tenants of the BVS Properties—and an "Arbor Family Nationwide Class" -- a class of all tenants of properties owned by the Arbor Family Defendants or any affiliate of Arbor Realty Trust, Inc. The Plaintiffs have not moved for class certification. Presently pending and ready for resolution in this housing discrimination and landlord-tenant case are (i) the motions to dismiss filed by Defendants Arbor Realty Trust, Arbor Realty Limited, Arbor Realty SR, Arbor Management Acquisition Co., Hyattsville United, Bedford United, Victoria United, and Realty Management; (ii) the motion to compel the opening of discovery filed by the collective Plaintiffs; and (iii) the motion for leave to file surreply by Defendants Arbor Management Acquisition Company, Hyattsville United, Bedford United, and Victoria United. The Defendants' motions to dismiss initially challenge the sufficiency of the First Amended Complaint because, they argue, it relies on impermissible group pleading and the alter ego theory of piercing the corporate veil, which they say the Plaintiffs have insufficiently alleged. They then argue that the individual claims are insufficiently supported by allegations of fact. First, as to the group pleading, the Plaintiffs have grouped the Defendants into the "Arbor Family Defendants," and the "Arbor Related Defendants." Those seven Defendants reject that framing of their relationships and have filed motions to dismiss as the "Arbor Defendants" (Arbor Realty Trust, Arbor Realty Limited Partnership, and Arbor Realty SR), and the "Hyattsville Defendants" (Arbor Management Acquisition Co., Hyattsville United, Bedford United, and Victoria United). The Defendants insist these alternative groupings are based on the reality of the relationships between and among themselves (or the lack thereof) and that grouping them together as "Arbor Family Defendants" or "Arbor Related Defendants" means the Plaintiffs have failed to state a claim because the First Amended Complaint does not sufficiently allege specific conduct against individual Defendants. Judge Chasanow opines that (i) the Plaintiffs have sufficiently alleged a connection among the "Arbor Family Defendants" such that, if they have otherwise stated a claim sufficiently, the case may proceed against all of those defendants; (ii) the Plaintiffs have sufficiently alleged the connection of AMAC to that group; (iii) the Plaintiffs have also made factual allegations connecting Hyattsville United, Bedford United, and Victoria United to the higher up corporate defendants; (iv) the Plaintiffs have plausibly alleged a chain of ownership and control by the "Arbor Family Defendants" over the three subsidiary defendants; and (ii) the interrelationship is an insufficient basis from which to infer that Hyattsville United, Bedford United, and Victoria United took actions which would make them individually liable, and the Plaintiffs can't proceed on a theory of group pleading against all seven "Arbor Related Defendants." For clarity's sake, the four higher up Defendants will be referred to as the "Arbor Family Defendants," the three subsidiary defendants will be referred to as the "Arbor Subsidiary Defendants," and the seven together will be referred to as the "Arbor Related Defendants." Second, as to pierce corporate veil, the Plaintiffs argue that each Defendant, other than Realty Management, is liable based on an alter ego theory. The Defendants argue that the Plaintiffs insufficiently pleaded this theory. They propose three different standards for veil piercing: (1) federal; (2) Maryland; and (3) Delaware. They argue that irrespective of the choice of law analysis, the result is the same. Judge Chasanow opines that the Plaintiffs have failed to allege a claim under the FHA. Thus, the federal standard does not need to be considered. The result is the same for the Plaintiffs and their other claims under either Maryland or Delaware law because both require higher allegations of wrongdoing than they have alleged. The Plaintiffs have not alleged that Arbor Realty Trust's subsidiaries are shams and only exist as a vehicle of fraud. They failed to cite any authority supporting their contention that they meet the "paramount equity" standard -- a standard that so many other courts have found not to be met. If each Defendant is not shown to be liable based on its own conduct, the alter ego theory will not supply the link. Third, as to FHA Claims against the seven Arbor Related Defendants, the Plaintiffs argue disparate treatment and impact as alternative predicates to their specific FHA. Judge Chasanow opines that the Plaintiffs do not make the disparate impact or disparate treatment allegations against the Arbor Subsidiary Defendants. Instead, they allege that the policies and the race discrimination are actions of the Arbor Family Defendants. Because of this failure to plead against the individual Arbor Subsidiary Defendants, and the insufficiency of the Plaintiffs' group pleading allegations, the four FHA claims will be dismissed as against those three Defendants. In reaching these ruling, Judge Chasanow finds that (i) the Plaintiffs have not adequately alleged a theory of disparate impact to support their FHA claims; (ii) the Plaintiffs have not alleged discrimination, and their comparator allegations and statistical analysis allegations are insufficient to create an inference of discriminatory intent so Counts I, II, III, and IV will be dismissed against the seven Arbor Related Defendants; and (iii) the Plaintiffs have not pleaded sufficient factual allegations about neighborhoods or communities in Prince George's County, or about the existence or creation of segregation. Third, as to FHA claims against Realty Management, Realty Management argues that the Plaintiffs fail to state claims against it under the FHA because they have not alleged discriminatory treatment, either through direct evidence or inference, or a policy of Realty Management that has a disparate impact on members of a protected class. Judge Chasanow opines that the Plaintiffs have failed sufficiently to allege a theory of disparate impact. They have not alleged a policy of RMS that disproportionately impacted members of a protected class. They have alleged no statistical evidence regarding RMS' evictions or maintenance. They have not stated a claim for disparate impact against RMS. Nor have they stated a claim for perpetuation of segregation. The Plaintiffs have also failed sufficiently to allege direct evidence of discriminatory intent against Realty Management, or an inference of discriminatory intent. Hence, Counts I, II, III, and IV will be dismissed against Realty Management. Fourth, as to Count VIII - Civil Conspiracy, the Defendants argue that the civil conspiracy claim is derivative of the FHA claims and so should be dismissed. The Plaintiffs argue that the First Amended Complaint "alleges that all of the Defendants work with a concerted understanding and by agreement in violation of the FHA and common law tort obligations resulting in legal damage to the Plaintiffs." Judge Chasanow opines that the First Amended Complaint premises the civil conspiracy claim on a violation of the FHA. The Plaintiffs have failed adequately to allege violation of the FHA. The conspiracy to commit civil conspiracy will also be dismissed against all Defendants. Fifth, as to Breach of Contract claims - Counts V, VI, and VII, the Plaintiffs assert Counts V and VI against all the Defendants. They assert Count VII only against Realty Management. The Defendants argue that CASA de Maryland does not have standing to bring Counts V and VI, that Counts V and VI have not been sufficiently alleged, and that none of the Plaintiffs is a third-party beneficiary of the management contract Realty Management had with its co-Defendants, and thus the Plaintiffs do not have standing to bring Count VII. Judge Chasanow opines that (i) CASA does not have standing to bring the breach of contract claims - Counts V and VI; (i) the complaint, along with documents integral thereto, does not show categorically that there were readily available resources from which they could have determined the identities of the Realty Management's principal at the time each Plaintiff signed the lease; (iii) the Plaintiffs have sufficiently alleged a violation of the duty and maintenance standards imposed on landlords by the Prince George's County Code, harm from those violations, and notice on the part of the Defendants, so the Defendants' collective motions to dismiss is denied on Count VI; (iv) the face of the First Amended Complaint reveals that some of the Plaintiffs' damages claims are outside the three-year statute of limitations, despite their allegations of continuous breach so the Defendants' is granted and only claims for damages occurring within the three-year limitations period will be considered; and (v) the Plaintiffs have not alleged any facts about the formation of the management agreement so their Count VII is dismissed for failure to state a claim. For the foregoing reasons, Judge Chasanow grants in part and denies in part the Defendants' motions to dismiss. Once the Defendants have answered the remaining claims, a scheduling order will be issued setting a timeline for the parties to conduct discovery. Thus, Judge Chasanow holds the Plaintiffs' motion to compel the opening of discovery moot and denies it. She likewise denies as moot the Defendants' motion for leave to file a surreply to the Plaintiff's reply brief regarding the motion to compel discovery. A full-text copy of the Court's Sept. 6, 2022 Memorandum Opinion is available at https://tinyurl.com/59feyt98 from Leagle.com. BERNALILLO CTY., NM: Disengagement of Domain #3 in McClendon Denied ------------------------------------------------------------------- In the case, JIMMY (BILLY) McCLENDON, et al., Plaintiffs v. E.M.; R.L.; W.A.; D.J, P.S.; and N.W., on behalf of themselves and all others similarly situated, and SHAWNA TANNER, Plaintiff-Intervenors v. CITY OF ALBUQUERQUE, et al., Defendants v. LAWRENCE A. JOHNSON; WILLIE JAMES WASHINGTON; MANUEL R. BOSWELL, and AFSCME LOCAL 2499, Intervenors, Case No. CIV 95-0024 JB/KBM (D.N.M.), Judge James O. Browning of the U.S. District Court for the District of New Mexico denies Defendant Bernalillo County Board of Commissioners' Motion for Finding of Sustained Compliance and for Disengagement of Domain #3, filed Nov. 12, 2021. The other Plaintiffs are HAROLD LUND; PETER SUMATKAKU; DAVID MICHAEL BAUER; CARL RAY LOPEZ; BRUCE DAVID MORAWE; THOMAS YOUNG; RUTHIE DURAN; DEBORAH LAVERA; JANELLE ROYBAL; DANETTE DIFIORI; MARIA SISNEROS; LARRY GREEN; BARTEL HALEY; MICHAEL COTE; JOE RAY HERRERA; JOSIE KRIENA; DEBBIE LUCERO; DAVID SHAWKIN; MARC A. GILLETTE; GEORGE CHAVEZ; ELISEO BACA; CLINT BARRAS; FRANCISCO MELENDEZ; SAMUAL HERROD; VINCENT PADILLA; CARL DUCKWORTH; JOSEPH W. ANDERSON; PAUL JOHNSON; FRED MALL; HECTOR LOPEZ; RICKY ROSE; HERBERT KING, SR.; JAMES PARKS; MICHAEL A. JOHNSON; JOHNNY VALLEJOS; JOE NEWBERRY; DARRYL CRAFT; ALBERT WILLY; WILLIAM P. JIMMY; AUGUSTINE TAPIA; RICHARD A. SMITH; ROBERT LOVATO; ROY WHATLEY; MARTY BEGAY; MARTIN VALDIVIA; TALLIE THOMAS; AUGUSTINE JACKSON; DONALD HALL; CARL SUR; STEVE ESQUIBEL; LONNIE WHATLEY; JAMES SAIZ; BRYON ZAMORA; ALLEN M. SAWYER; PATRICK BENNY ROMERO; RICHARD C. KOPECKY; PHILLIP SHUMATE; NELSON ROMERO; STEVE JOHNSON; BENNIE F. GARCIA; LOUIE CHAVEZ; BRIAN SALAZAR; RICHARD GALLEGOS; LARRY STROUD; JAMES BURKS; BRAD FISCHER; AMIHON BACA; JEFF DILLOW; PETE McQUEEN; MANUEL MARTINEZ; ARNOLD ANTHONY MAESTAS, and JOHN HEWATT. The other Defendants are MARTIN CHAVEZ; COUNTY OF BERNALILLO; PATRICK BACA; ALBERT VALDEZ; EUGENE GILBERT; BARBARA SEWARD; JACQUELINE SCHAEFER; BILL DANTIS; BERNALILLO COUNTY DETENTION CENTER; PAUL SANCHEZ; FRANK LOVATO; ERCELL GRIFFIN; MICHAEL SMITH; JOHN VAN SICKLER; WILL BELL; ALFRED CHAVEZ; RICHARD FUSCO; GEORGE FUENTES; DAVID BACA; VICTOR HERNANDEZ; KEVIN D. SEVIR; DR. JIM MASON; BARBARA COLE; MARIA LUCERO; DAVID ROYSTON; FELIMON MARTINEZ; STANLEY LENTS; DOUGLAS ROBINSON; SEAL BARLEY; LYNN KING; DAVID SHERMAN; BRIAN MASER; JOHN DOES, employees of Bernalillo County Detention Center; MICHAEL SISNEROS, Director of Bernalillo County Detention Center, in his official capacity, and BERNALILLO COUNTY BOARD OF COMMISSIONERS. The matter comes before the Court on Defendant Bernalillo County Board of Commissioners' Motion for Finding of Sustained Compliance and for Disengagement of Domain #3, filed Nov. 12, 2021 ("Motion"). The Court held a hearing on Feb. 11, 2022. The primary issues are: (i) whether the Settlement Agreement, filed May 26, 2016, requires Bernalillo County to provide six quarterly reports for an 18-month self-monitoring period before seeking disengagement from Domain #3, where Bernalillo County asserts that it submitted sufficient data for the Court-appointed jail operations expert Margo Frasier to make an informed finding of sustained compliance regarding certain conditions at Bernalillo County Metropolitan Detention Center ("MDC"); (ii) whether the record supports a finding that Bernalillo Country has reached sustained substantial compliance with Domain #3 of the Settlement Agreement, where the Plaintiffs object to the Motion and argue that Bernalillo County does not demonstrate sustained compliance with certain provisions in Check-Out Audit Agreement No. 3: the Conditions of Confinement at the Bernalillo County Metropolitan Detention Center, filed May 26, 2016, namely: (a) Checkout Audit #3 paragraphs 6(L)(3)-(4), at 28, governing fire and life safety, (b) Checkout Audit #3 paragraph 6(M)(1), at 29, governing maintenance staffing, (c) Checkout Audit #3 paragraphs 6(O)(3)-(4), at 32, governing food service, and (d) Checkout Audit #3 paragraphs 6(S)(1)-(3), at 34-35, governing inmates' access to telephones; and (iii) whether Class and Subclass members are entitled to notice and an opportunity to be heard before the Court finds that Bernalillo County has achieved sustained compliance with Domain #3, where rule 23 of the Federal Rules of Civil Procedure and the Due Process Clause of the Fifth Amendment to the Constitution of the United States of America, U.S. Const. Amend. V, require notice and an opportunity to be heard. On Jan. 10, 1995, McClendon, along with "all prisoners who are presently, or will be confined in the Bernalillo County Detention Center," filed a class action against Defendants City of Albuquerque, the Mayor of Albuquerque, the County Commissioners of Bernalillo County, the County of Bernalillo, MDC, the MDC Director, the MDC Deputy Director, and various MDC employees, alleging that MDC operates under inhumane and unconstitutional conditions. After years of negotiation, the parties agreed to the most recent Settlement Agreement, which sets forth requirements that aim to improve conditions at MDC and carve a pathway to the end of litigation. In the Initial Complaint, the Plaintiffs seek to enjoin the Defendants from operating MDC until MDC meets State and federal constitutional standards. They allege that Bernalillo County is violating Articles I, II, and VI of the Constitution of the United States. They bring their claims under 42 U.S.C. Section 1983, 18 U.S.C. Section 242, and 18 U.S.C. Section 245. On Sept. 6, 1995, a group of persons with mental and/or developmental disabilities who were or were going to be detained at MDC, and all others similarly situated, moved to intervene in the lawsuit. The Plaintiffs moved to intervene, because "each named Plaintiff has one or more mental or developmental disabilities which require medical, mental health, habitation and/or educational service. As a result of their detention, proposed plaintiffs in intervention have interests directly affected by this litigation." An initial Settlement Agreement was reached and filed on Sept. 7, 1995. The Initial Settlement Agreement converted the PI Order into a permanent injunction. The Honorable James Parker, Senior United States District Judge for the U.S. District Court for the District of New Mexico, summarizes the impact of the Prison Litigation Reform Act. On Jan. 31, 2002, the parties reached another agreement addressing facilities for women inmates and retaining the population cap of 586 residents. They signed two more stipulated agreements in the following years. On May 19, 2009, the case was reassigned to Senior Judge Parker. On March 22, 2016, Senior Judge Parker approved preliminarily the Settlement Agreement. On June 27, 2016, he approved the Settlement Agreement after a fairness hearing. The Settlement Agreement categorizes over 250 grievances about the detention facility's conditions into eight "Domains." To comply with the Settlement Agreement and to conclude the litigation, the Defendants must demonstrate sustained substantial compliance in each Domain. Three different Check-Out Audits provide the standards the Defendants must meet to demonstrate sustained compliance for each Domain. The Settlement Agreement categorizes its requirements into eight Domains: (i) Domain 1: Mental Health Services, whose requirements are set forth in Check-Out Audit Agreement No. 2, The Provision of Mental Health Services at the Bernalillo County Metropolitan Detention Center, filed May 26, 2016 ("Check Out Audit #2"); (ii) Domain 2: Medical Services, whose requirements are set forth in Check-Out Audit Agreement No.1., The Provision of Medical Services at the Bernalillo County Metropolitan Detention Center, filed May 26, 2016 ("Check Out Audit #1"); (iii) Domain 3: Group A of Jail Operations, set forth in Check-Out Audit Agreement No. 3, The Conditions of Confinement at the Bernalillo County Metropolitan Detention Center, filed May 26, 2016 ("Check Out Audit #3); (iv) Domain 4: Group B of Jail Operations, set forth in Check-Out Audit #3; (v) Domain 5: Population Management, set forth in Check-Out Audit #3; (vi) Domain 6: Housing and Segregation, set forth in Check-Out Audit Agreement # 3; (vii) Domain 7: Sexual Misconduct, set forth in Check-Out Audit #3; and (viii) Domain 8: Use of Force by Security Staff, set forth in Check-Out Audit #3. Check Out Audit #1 provides the standards for Domain 2, Medical Services. It describes standards for whether MDC's provision of medical services complies with MDC's policies and procedures, as well as various "advisory standards in the American Correctional Association's Standards for Adult Detention Centers" and in the National Commission on Correctional Health Care. It also examines the timeliness of completing history and physical exams as well as providing immediate medical attention when requested. It also ensures that MDC is making consistent revisions to their medical policies and practices when deficiencies are identified. Check Out Audit #2 provides the standards for Domain 1, Mental Health Services. It analyzes whether MDC has developed a comprehensive screening and assessment process of inmates with serious mental health needs, whether MDC has the ability to provide professional treatment plans to inmates whose conditions requires one, whether MDC has suicide prevention precautions in place for inmates who may be deemed as suicidal, whether MDC follows regulations on the use of both Clinical Restraints and Four Point Restraints, and whether MDC provides basic mental health training and sufficient mental health professionals. Check Out Audit #3 provides the standards for Domains 3-8, all of which fall under the category of Jail Operations. Domain #3 provides standards for MDC's fire and life safety procedures, sanitation and environmental conditions, food service, mail service, telephones, commissary, inmate access to community services, and for whether inmates have access to sanitary laundry. Domain #4 provides the standards that MDC must maintain for inmate discipline, inmate classification, whether MDC has a comprehensive inmate grievance procedure, whether MDC provides safety and supervision to inmates and employees, and whether MDC has contraband control, adequate staffing, inmate access to counsel and legal materials, an extensive law library, inmate programming, and inmate access to information. Domain #5 examines whether MDC successfully manages the inmate population size. Domain #6 requires MDC to follow housing and segregation protocols. This includes ensuring that the cells do not hold more inmates than they were designed to hold and making sure that inmates get at least one hour out of their cell each day. Domain #7 addresses sexual misconduct. This includes MDC's compliance with the Prison Rape Elimination Act of 2003, 34 U.S.C. Sections 30301-30309, prevention of sexual misconduct, a well-structured reporting system, and the collection of data regarding sexual misconduct at the facility. Domain #8 covers the security staff's use of force and internal investigations. This Domain includes whether MDC has comprehensive policies regarding the appropriate use of force with respect to restraint devices, defensive tactics, inflammatory and chemical agents, taser conducted electrical weapon (CEW), less-lethal munitions and distraction devices, restraint chair, and firearms. Bernalillo County is not required to reach compliance with all Domains at once, but may reach compliance with one Domain at a time. To demonstrate sustained compliance for each Domain, the Settlement Agreement prescribes four steps for the Defendants to follow: (i) they must demonstrate initial substantial compliance; (ii) they must undergo a period of self-monitoring; (iii) they must demonstrate sustained compliance; and (iv) they must undergo a check-out audit. There are three Court-appointed experts who assess the MDC's compliance with the Check-Out Audit Agreements. Senior Judge Parker first appointed Manuel Romero as Jail Operations expert, in charge of evaluating the conditions of confinement at MDC; Dr. Robert Greifinger as the Medical Expert in the Order Instructing Court-Appointed Medical Expert Robert Greifinger, M.D. to Evaluate Medical Services at the Bernalillo County Metropolitan Detention Center; and Dr. Jeffrey Metzner as the Mental Health Expert in the Order Instructing Court-Appointed Mental Health Expert Jeffrey Metzner, M.D. to Evaluate Mental Health Services at the Bernalillo County Metropolitan Detention Center. Four years later, he appointed Margo Frasier to replace Manuel Romero as the Jail Operations Expert. Senior Judge Parker appointed Dr. M. Anandkumar to replace Dr. Greifinger as the Medical Expert. The Settlement Agreement requires that, "at the end of the period established for self-monitoring, the Court's experts will conduct Check-Out Audits as to each domain and make a finding of compliance, partial compliance, or non-compliance with the substantive requirements of the Check-Out Audit Agreements." The court-appointed experts must "submit proposed findings of fact with respect to each subcategory of the applicable Check-Out Audit Agreements." AFSCME Local 2499, the exclusive bargaining representative for a certified bargaining unit of employees who work for MDC, moved to intervene on February 3, 2017. Senior Judge Parker, granted the AFSCME MTI on March 2, 2017. On April 7, 2021, Bernalillo County moved for a finding of sustained compliance as to Domain 6, requesting that they be disengaged from Domain 6, and arguing that they reached initial compliance, developed and complied with a self-monitoring plan, and adhered to any additional requests from the Court-appointed expert. The Court denied the Domain #6 Motion in the Order Denying the Defendant Bernalillo County Board of Commissioners' Motion for Finding of Sustained Compliance as to Domain #6, filed March 29, 2022. It concluded that Bernalillo County did not reach sustained compliance as to Check Out Audit #3 paragraph 6(H)3's requirement that segregated prisoners have on hour per day of outside cell time. On April 12, 2021, Bernalillo County moved the Court for a finding of sustained compliance as to Domain #5, and arguing that that it has achieved a finding of initial compliance, developed and complied with a self-monitoring plan, and adhered to any additional requests from the Court-appointed expert. On March 29, 2022, the Court granted the Domain #5 Motion, because the Plaintiffs do not object to finding sustained compliance as to Domain #5. On Feb. 5, 2018, Senior Judge Parker appointed Margo Frasier as the expert for jail operations. Frasier completed an initial evaluation of the Defendants' compliance with the Domain #3 requirements. On Feb. 14, 2020, the Defendants filed an Unopposed Motion for Finding of Initial Compliance and to Set Self-Monitoring Period Regarding Domain #3 at 1-6, filed Feb. 14, 2020. On Feb. 19, 2020, Senior Judge Parker granted the Domain #3 Motion for Initial Compliance ("Domain #3 Initial Compliance Order"). On Nov. 12, 2021, Bernalillo County filed their Motion. On Dec. 10, 2021, the Plaintiffs filed the Plaintiff and Plaintiff Intervenors' Joint Response Opposing Defendant Bernalillo County Board of Commissioners' Motion for Finding of Sustained Compliance and for Disengagement of Domain #3 at 1-9, filed Dec. 10, 2021. Finally, on Jan. 21, 2022, the Defendants filed the Defendant Bernalillo County Board of Commissioners' Reply in Support of Motion for Finding of Sustained Compliance and for Disengagement of Domain #3 at 1-11, filed Jan. 21, 2022. On Feb. 11, 2022, the Court held a hearing to discuss the Defendants' motions to disengage from Domains #3, #5, and #6. In early February 2020, Frasier approved the Defendants' plan for self-monitoring for Domain #3. On Feb. 14, 2020, the Defendants filed a motion for a finding of initial compliance and to set self-monitoring. On Feb. 19, 2020, Senior Judge Parker found that Bernalillo County was in initial compliance, and set an eighteen-month period of self-monitoring. The Domain #3 Order for Initial Compliance states that Bernalillo County was in substantial compliance as of July 1, 2019, and places Domain #3 in self-monitoring until Aug. 19, 2021. At the beginning of the self-monitoring period, Senior Judge Parker directed Frasier to complete Check Out Audit #3 to determine if Bernalillo County has reached sustained compliance with Domain #3's requirements. Ms. Frasier recommends a finding sustained compliance for each requirement listed under Check Out Audit #3. Among other things, the Domain #3 Report indicates that there were violations in the January 2021 fire inspection; that there is a shortage of security staff, but that MDC has enough to provide for adequate maintenance of the facility and to meet substantial compliance with Domain #3; and that security staff is covered in another Domain and should not be analyzed under this Domain. She concludes the report by stating that Bernalillo County successfully maintained sustained compliance with Domain #3 throughout the self-monitoring period that Senior Judge Parker set. She does not discuss the last two requirements in Domain #3 about competency evaluations, as an agreement was reached by the parties on those provisions. In the Motion, Bernalillo County requests that the Court makes a finding of sustained substantial compliance with Domain #3. On Feb. 20, 2020, Senior Judge Parker made an initial finding of compliance, and that Domain #3 had been in substantial compliance as of July 1, 2019; he ordered Bernalillo County to move into the self-monitoring phase until Aug. 19, 2021. Check Out Audit #3 provides the standards for Domains 3-8, all of which fall under the category of Jail Operations. Bernalillo County seeks to disengage from Domain #3, asking that the Court finds sustained compliance with the requirements set forth in Check Out Audit #3. It concludes by asking the Court to look towards the findings of substantial compliance in Frasier's report and disengage Bernalillo County from Domain #3. On Dec. 10, 2021, the Plaintiffs and the Plaintiff Intervenors filed a joint response. In the Response, they argue that Bernalillo County has not reached a satisfactory level of sustained compliance to merit disengagement from Domain #3. They contend that (i) the Defendant failed to provide any Q2 2021 documentation for a number of provisions; (ii) Bernalillo County does not comply with Check-Out Audit #3 paragraph 6(L)(3)-(4); (iii) there is "neither a staffing plan nor documentation showing sufficient staffing levels were provided for Q2 2021; (iv) Bernalillo County failed to meet food service requirements in Check Out Audit #3 paragraphs 6(O)(3) and (4); (v) Bernalillo County provided no documentation showing how many "functional tablets" were available or how accessible the tablets were to inmates; (vi) moving forward without notice or an opportunity to be heard for the class members would violate Fed. R. Civ. P. 23 and the Due Process clause of the federal constitution. Bernalillo County filed their Reply on Jan. 21, 2021. Among other things, it disagrees with the Plaintiffs' assertion that Bernalillo County did not provide the required documentation, arguing that the Settlement Agreement only requires it to provide sufficient information for the expert to be able to come to a conclusion. It asserts that Frasier finds sustained compliance with these Check Out Audit #3. The Defendants ask the Court to conclude that they are entitled to disengagement from Domain #3. The Court held a hearing on Feb. 11, 2022. It heard arguments for the Domain #5 Motion, the Domain #6 Motion, and the Plaintiff and Plaintiff Intervenors' Joint Motion and Memorandum in Support Thereof, for Enforcement of Paragraphs 14 and 15 of Settlement Agreement, and for Further Remedial Relief, filed July 23, 2021 ("Force Majeure Motion"). In the Court's March 29, 2022, Order, the Court denied the Domain #6 Motion, because the record does not support a finding of sustained compliance as to Check-Out Audit #3 paragraph 6(H)(3), at 23. It granted the Domain #5 Motion, because the Plaintiffs do not object to a finding of sustained compliance. It denied the Plaintiffs' request that Bernalillo County give notice and an opportunity to be heard to Class members before finding Domain #5 to be in sustained compliance. The Court also denied the Force Majeure Motion, because only Bernalillo County may invoke the Force Majeure provision. Most relevant to the Motion, it concluded that Frasier must recommend substantial compliance with Check Out Audit #3 paragraphs 6(S)(1)-(3), at 34-35, without reference to the COVID-19 pandemic before the Court finds sustained compliance as to Domain #3. In the Order, the Court notes about the Domain #3 Report: "It is not clear whether Frasier would have made the recommendation that Bernalillo County is in substantial compliance with these provisions were it not for allowances Frasier made for the COVID-19 pandemic." On Aug. 26, 2022, Frasier filed a supplemental report on Check Out Audit #3 paragraphs 6(S)(1)-(3), at 34-35, regarding inmates' access to telephones. She emphasizes that the ACA standards for Adult Detention Centers do "not require a set number of telephones in a housing unit or a set number of calls by a particular inmate." She recommends a finding of sustained substantial compliance as to Check-Out Audit #3 paragraphs 6(S)(1)-(3), at 34-35, and assures the Court that Bernalillo County has maintained this level of compliance since the end of Domain #3's self-monitoring period. Judge Browning concludes that: (i) the Settlement Agreement as written requires Bernalillo County to provide six quarterly reports during an 18-month self-monitoring period; (ii) the record does not support a finding that Bernalillo County demonstrates sustained substantial compliance as to: Checkout Audit #3 paragraphs 6(L)(3)-(4), at 28, governing fire and life safety, and Checkout Audit #3 paragraph 6(M)(1), at 29, governing maintenance staffing, and Checkout Audit #3 paragraphs 6(S)(1)-(3), at 34-35, governing inmates' access to telephones, but the records supports a finding of sustained compliance as to Checkout Audit #3 paragraphs 6(O)(3)-(4), at 32, governing food service; and (iii) rule 23 of the Federal Rules of Civil Procedure and the Fifth Amendment to the United States Constitution do not require Bernalillo County to provide notice and an opportunity to be heard, because these procedural safeguards were met when the Settlement Agreement was reached, and the parties do not argue that Class and Subclass representatives are inadequate for this stage of the proceedings. For these reasons, Judge Browning (i) denies Bernalillo County's Motion; (ii) denies the Plaintiff's request that Bernalillo County gives notice and an opportunity to be heard to Class and Subclass members before the Court finds a Domain in sustained compliance as stated in the Plaintiff and Plaintiff Intervenors' Joint Response Opposing Defendant Bernalillo County Board of Commissioners' Motion for Finding of Sustained Compliance and for Disengagement of Domain #3 at 1-9, filed Dec. 10, 2021; (iii) orders that Bernalillo County must undergo another six-month period of self-monitoring, as Settlement Agreement paragraph 8, at 8, requires, to begin Oct. 1, 2022, and end March 31, 2023; and (iv) orders Bernalillo County must attach its two quarterly reports to the renewed motion for disengagement of Domain #3. A full-text copy of the Court's Sept. 6, 2022 Memorandum Opinio& Order is available at https://tinyurl.com/ynnfv4nx from Leagle.com. Adam C. Flores, Ives & Flores, PA, Albuquerque, New Mexico. Alexandra Freedman Smith, Doreen McKnight, Law Office of Alexandra Freedman Smith, Albuquerque, New Mexico. Mary E. Schmidt-Nowara, Freedman, Boyd, Hollander & Goldberg, P.A., Albuquerque, New Mexico. Philip B. Davis, Philip B. Davis, Attorney at Law, Albuquerque, New Mexico. Mark H. Donatelli -- info@rothsteinlaw.com -- Peter Schoenburg, Marc M. Lowry, Kate S. Thompson, Rothstein Donatelli LLP, Albuquerque, New Mexico, Attorneys for the Plaintiffs. Mary E. Schmidt-Nowara, Freedman, Boyd, Hollander & Goldberg, P.A., Albuquerque, New Mexico. Philip B. Davis, Davis Law, Albuquerque, New Mexico, - and - Claire Dickson, Albuquerque, New Mexico. Nancy L. Simmons, David Meilleur, Law Offices of Nancy L. Simmons, Albuquerque, New Mexico. Peter Cubra, Law Office of Peter Cubra, Albuquerque, New Mexico. Ryan J. Villa -- Kelly K. Waterfall -- Kelly K. Waterfall -- kelly@rjvlawfirm.com -- The Law Office of Ryan J. Villa, Albuquerque, New Mexico, Attorneys for the Plaintiff-Intervenors. Jeffrey L. Baker, The Baker Law Firm, Albuquerque, New Mexico. Debra J. Moulton, Kennedy, Moulton & Wells, P.C., Albuquerque, New Mexico. Kathryn Levy, Carlos F. Pacheco, Trevor Adam Rigler, City Attorney's Office, City of Albuquerque, Albuquerque, New Mexico, Attorneys for Defendant City of Albuquerque. Luis E. Robles -- luis@roblesrael.com -- Taylor S. Rahn -- taylor@roblesrael.com -- Marcus J. Rael, Jr. -- marcus@roblesrael.com -- Robles, Rael & Anaya, P.C., Albuquerque, New Mexico, Attorneys for Defendants County of Bernalillo and Bernalillo County Board of Commissioners, Shane C. Youtz -- shane@youtzvaldez.com -- Stephen Curtice -- stephen@youtzvaldez.com -- Youtz & Valdez, PC, Albuquerque, New Mexico, Attorneys for Intervenor AFSCME Local 2499. Michael Sisneros, Director of Bernalillo County Detention Center, Albuquerque, New Mexico, Defendant pro se. BP EXPLORATION: Court Dismisses Milsap B3 Case With Prejudice ------------------------------------------------------------- In the case, SYLVIA MILSAP, ON BEHALF OF HER MINOR CHILDREN P.G. AND P.W. v. B.P. EXPLORATION & PRODUCTION, INC., ET AL., Section "R" (2), Civil Action No. 17-4660 (E.D. La.), Judge Sarah S. Vance of the U.S. District Court for the Eastern District of Louisiana grants the BP Exploration & Production, Inc., BP America Production Company, and BP p.l.c.'s unopposed motion for summary judgment and dismisses the Plaintiff's complaint. The case arises from the alleged exposure of Milsap's minor children, P.G. and P.W., to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico by virtue of their presence in the environment in Pascagoula, Mississippi. She contends that since the alleged exposure, P.G. has experienced anemia, cough, upper respiratory infection, congestion, bronchitis, tonsilitis, runny nose, stuffy nose, sore throat, rhinitis, middle ear effusion, decreased hearing, asthma, wheezing, rashes, and tinea corporis as a result of toxic exposures.3 She alleges that P.W. has experienced many of those same conditions, as well as nasopharyngitis, bronchiolitis, developmental speech/language disorder, pneumonia, shortness of breath, hypoxemia, seizure, diarrhea, abdominal pain, conjunctivitis, eye redness, watery eyes, and itchy eyes. Ms. Milsap's case was originally part of the multidistrict litigation ("MDL") pending before Judge Carl J. Barbier. Her case was severed from the MDL as one of the "B3" cases for plaintiffs who either opted out of, or were excluded from, the Deepwater Horizon Medical Benefits Class Action Settlement Agreement. The Plaintiff opted out of the settlement. After the Plaintiff's case was severed, it was reallocated to the Court. On July 28, 2021, the Court issued a scheduling order that established, among other deadlines, that the Plaintiff's expert disclosures had to be "obtained and delivered" to defense counsel by no later than July 29, 2022. The Defendants now move for summary judgment, arguing that, because the Plaintiff has not identified any expert testimony, she is unable to carry her burden on causation. The Plaintiff has not filed an opposition to the Defendants' motion. The Plaintiff asserts claims for general maritime negligence, negligence per se, and gross negligence against the Defendants as a result of the oil spill. The Defendants contend that the Plaintiff cannot prove that exposure to oil or dispersants was the legal cause of her children's alleged injuries, and thus that she cannot prove a necessary element of her claims against them. Judge Vance explains that under the general maritime law, a party's negligence is actionable only if it is a 'legal' cause' of the plaintiff's injuries. To prevail in a toxic tort case, a plaintiff must show both general causation and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population. Specific causation is whether a substance caused a particular individual's injury. Expert testimony is required to establish general causation. Scientific knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiffs' burden. In the case, the Plaintiff has not disclosed any experts on either general or specific causation. As she is unable to create an issue of material fact on causation, Judge Vance grants summary judgment. She dismisses the Plaintiff's complaint with prejudice. A full-text copy of the Court's Sept. 2, 2022 Order & Reasons is available at https://tinyurl.com/35ktc2u9 from Leagle.com. BRAXIA SCIENTIFIC: CDN $1.9-M Deal in Shareholders' Suit Gets OK ---------------------------------------------------------------- Braxia Scientific Corp. ("Braxia Scientific", or the "Company"), (CSE: BRAX) (OTC: BRAXF) (FWB: 4960) announced that the Supreme Court of British Columbia has approved a settlement of a class action lawsuit that was filed in May 2021 against Braxia Scientific, its CEO, certain of its former officers, a shareholder, and underwriters (the "Canadian Settlement"). The Canadian Settlement contemplates a cash payment of CDN $1.9 million, of which the Company will be paying CDN $1.6 million. The court approval of an agreement in principle (the "US Settlement") to settle claims alleged in a securities class action (the "US Class Action") against the Company and certain of its former officers filed in the United States District Court for the Central District of California in April, 2021, remains pending. The US Settlement contemplates a cash payment by the Company of USD $1 million to settle the US Class Action. After available insurance, and assuming the court approval of the US Settlement is obtained, the total cost to the Company to settle both class actions will be approximately CDN $1.36 million. About Braxia Scientific Braxia Scientific is a medical research and telemedicine company with clinics that provide innovative ketamine treatments for persons with depression and related disorders. Braxia also launched its U.S. based end-to-end telemedicine platform KetaMD, that utilizes leading technology to provide access to safe, affordable, and potentially life-changing at-home ketamine treatments for people living with depression and related mental health conditions. Through its medical solutions, Braxia aims to reduce the illness burden of brain-based disorders, such as major depressive disorder among others. Braxia is primarily focused on (i) owning and operating multidisciplinary clinics, providing treatments in-person and virtually for mental health disorders, and (ii) research activities related to discovering and commercializing novel drugs and delivery methods. Braxia seeks to develop ketamine and derivatives and other psychedelic products from its IP development platform. Through its wholly owned subsidiary, Braxia Health (formerly the Canadian Rapid Treatment Center of Excellence Inc.), operates multidisciplinary community-based clinics offering rapid-acting treatments for depression located in Mississauga, Toronto, Kitchener-Waterloo, Ottawa, and Montreal. [GN] BURGESS MODERN: Senior Files ADA Suit in S.D.N.Y. ------------------------------------------------- A class action lawsuit has been filed against Burgess Modern + Contemporary LLC. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Burgess Modern + Contemporary LLC, Case No. 1:22-cv-07592 (S.D.N.Y., Sept. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Burgess Modern + Contemporary -- https://www.burgesscontemporary.com/ -- is an art dealer in Fort Lauderdale, Florida.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal CAPITAL READY: Face Class Action in Calif. Over Unpaid Wages ------------------------------------------------------------ The Sacramento employment law attorneys, at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action lawsuit against Capital Ready Mix, Inc. alleging the company violated the California Labor Code. The lawsuit against Capital Ready Mix, Inc. is currently pending in the Sacramento County Superior Court, Case No. 34-2022-00325517. According to the lawsuit filed, Capital Ready Mix, Inc. allegedly failed to fully relieve Plaintiff for her legally required thirty (30) minute meals breaks. Employees were also allegedly required, from time to time, to work in excess of four (4) hours without being provided the legally required ten (10) minute rest periods. The California Supreme Court defines off-duty rest periods as the time during which an employee is relieved from all work-related duties and free from employer control. Additionally, Capital Ready Mix, Inc. allegedly failed to pay employees accurate sick pay wages, which violates California Labor Code Section 246. Employees routinely earned non-discretionary incentive wages which increased their regular rate of pay. However, when paid sick pay wages, it was allegedly paid at the base rate of pay rather than the higher regular rate of pay. For more information about the class action lawsuit against Capital Ready Mix, Inc., call (800) 568-8020 to speak to an experienced California employment attorney. Blumenthal Nordrehaug Bhowmik De Blouw LLP is a labor law firm with law offices located in San Diego County, Riverside County, Los Angeles County, Sacramento County, Santa Clara County, Orange County and San Francisco County. The firm has a statewide practice of representing employees on a contingency basis for violations involving unpaid wages, overtime pay, discrimination, harassment, wrongful termination and other types of illegal workplace conduct. [GN] CATHOLIC SUPPLY: Dicks Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Catholic Supply of St. Louis, Inc. The case is styled as Valerie Dicks, on behalf of herself and all others similarly situated v. Catholic Supply of St. Louis, Inc., Case No. 1:22-cv-07610 (S.D.N.Y., Sept. 7, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Catholic Supply of St. Louis, Inc. -- https://shop.catholicsupply.com/ -- is a church supply & religious goods store, open since 1960.[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 CENTENE CORP: Fails to Provide Adequate Coverage, Class Suit Says ----------------------------------------------------------------- Leslie Small at fiercehealthcare.com reports that Centene, an insurer that has thrived on the Affordable Care Act exchanges, is facing a federal lawsuit alleging its plans fail to provide adequate access to in-network providers. The class-action lawsuit was filed Thursday in the U.S. District Court for the Eastern District of Washington on behalf of Centene customers who are enrolled in the company's "Ambetter" plans through the individual insurance marketplaces. The lawsuit accuses Centene of "selling junk plans on state exchanges and misleading enrollees about the plan benefits," which violates the ACA's requirements that plans provide adequate coverage, according to a release from the law firms representing the plaintiffs. Indeed, the complaint says that Ambetter policyholders around the nation report "strikingly similar" problems when trying to use their health coverage. "After purchasing an Ambetter insurance plan, they learn that the provider network Centene represented was available to Ambetter policyholders was in material measure, if not largely, fictitious," the complaint states. In some instances, it said, the insurer listed nurses and even medical students as in-network primary care providers. The suit also alleges that Centene often fails to reimburse providers' legitimate claims, which further reduces its provider network by leading "a large number" of providers to reject Ambetter insurance. For Centene's part, a spokeswoman said in an email to FierceHealthcare that the company has not yet been served with the lawsuit. "However, we take these matters very seriously," she wrote. "We believe our networks are adequate. We work in partnership with our states to ensure our networks are adequate and our members have access to high quality healthcare." Washington state had already taken administrative action against Centene for issues with its provider networks. Citing numerous complaints from consumers, state regulators ordered Centene to stop selling individual market plans as of Dec. 12. Centene was allowed to resume selling ACA plans less than a week later after it agreed to fix the issues and pay a $1.5 million fine. Unlike other major publicly traded insurers, which have largely pulled back from the ACA exchanges, Centene took a bullish approach and expanded into new regions in 2018. This week, CEO Michael Neidorff said the insurer had enrolled more than 1.4 million people in marketplace plans as of Jan. 7 -- an increase of more than 400,000 compared to the third quarter of 2017, according to Reuters. Previously, Neidorff attributed the company's third-quarter revenue increase to the growth of its marketplace business. Centene is also the nation's largest Medicaid managed care plan, according to PwC. And it's about to get even larger, as Centene announced a deal in September to acquire New York-based Fidelis Care for $3.75 billion. [GN] COBB TACTICAL SECURITY: Miller Sues Over Unpaid Overtime Wages -------------------------------------------------------------- Tyeshia Miller, on behalf of herself and others similarly situated v. Cobb Tactical Security, LLC, d/b/a CTS, LLC, Anthony Buntyn, and Raymond Cobb, individually, Case No. 2:22-cv-02584 (W.D. Tenn., Sept. 6, 2022), is brought against the Defendants under federal law, specifically the Fair Labor Standards Act for unpaid overtime compensation, and related penalties and damages. The Plaintiff regularly worked seven days each week, for more than forty hours each workweek. The Defendants failed and refused to pay the Plaintiff overtime premiums for all hours worked over forty in any given workweek. The Defendants knew or should have known the Plaintiff had worked and recorded substantial overtime hours but were not being paid an overtime premium as required by the FLSA. Despite this knowledge, the Defendants willfully failed to pay the Plaintiff overtime pay for every hour worked over forty in a work week, says the complaint. The Plaintiff began working for the Defendants as a Security Officer on July 24, 2022. Cobb Tactical Security, LLC, is a private security company which provides armed and unarmed on-site security guard services throughout western Tennessee.[BN] The Plaintiff is represented by: Alan G. Crone, Esq. Philip Oliphant, Esq. THE CRONE LAW FIRM, PLC 88 Union Avenue, 14th Floor Memphis, TN 38103 Voice: 800.403.7868 Voice: 901.737.7740 Fax: 901.474.7926 Email: acrone@cronelawfirmplc.com poliphant@cronelawfirmplc.com COCA-COLA CO: Faces Class Suit Over Mislabeled Fruit-Flavored Soda ------------------------------------------------------------------ Erin Shaak at classaction.org reports that a proposed class action lawsuit claims Fanta dragon fruit-flavored soda contains an undisclosed artificial flavor, even though the beverage is labeled as "Naturally Flavored." Per the 19-page suit, representations on the front label of the Fanta dragon fruit soda, including a statement that the drink contains "100% Natural Flavors," are misleading given the product contains malic acid, an artificial flavoring agent. Shoppers who view the Fanta soda's front label reasonably expect that the drink's dragon fruit taste comes from only natural components, and many consumers are willing to pay a premium price for a food that does not contain artificial flavors, the case says. The lawsuit alleges that the product's maker, The Coca-Cola Company, has sold more of the Fanta soda, and at higher prices, than it would have absent the allegedly misleading labeling. According to the case, the Fanta dragon fruit soda's ingredients list reveals that the beverage contains malic acid, a component of fruits that contributes to their sweet, sour or tart taste. Although malic acid occurs naturally in dragon fruit, laboratory testing has revealed that the variety in the Fanta soda is not naturally derived L-malic acid but a "mixture" known as DL-malic acid that is synthetically produced from petroleum, the lawsuit says. Per the complaint, federal and state food labeling regulations require that when a product's characterizing flavor -- dragon fruit, in this case -- is derived from an artificial flavoring agent, the front label must disclose that the food is artificially flavored. The lawsuit looks to cover anyone in Florida, Alabama, New Mexico, Mississippi, Utah, Nebraska, South Carolina, Tennessee and Virginia who purchased the Fanta dragon fruit-flavored soda within the applicable statute of limitations period. [GN] COLLABORATIVE BOATING: Kuhn Sues Over Unlawful Telephonic Calls --------------------------------------------------------------- Clayton T. Kuhn, individually and on behalf of all others similarly situated v. Collaborative Boating, Inc., Case No. 156950034 (Fla. 13th Judicial Cir. Ct., Hillsborough Cty., Sept. 7, 2022), is brought against the Defendant for the Defendant's violations of the Florida Telephone Solicitation Act as a result of unlawful telephonic sales calls. To promote its goods and services, the Defendant engages in telephonic sales calls to consumers without having secured prior express written consent as required by the FTSA. The Plaintiff and the Class members have been aggrieved by the the Defendant's unlawful conduct, which adversely affected and infringed upon their legal rights not to be subjected to the illegal acts at issue. Through this action, the Plaintiff seeks an injunction and statutory damages on behalf of the Plaintiff individually and the Class members and any other available legal or equitable remedies resulting from the unlawful actions of the Defendant, says the complaint. The Plaintiff is an individual and a "called party." The Defendant is a Foreign Profit Corporation "doing business in this state".[BN] The Plaintiff is represented by: Benjamin W. Raslavich, Esq. KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Phone: (813) 422 – 7782 Facsimile: (813) 422 – 7783 Email: ben@theKRfirm.com COLUMBIA SPORTSWEAR: Cody Suit Removed to C.D. California --------------------------------------------------------- The case styled as Annette Cody, individually and on behalf of all others similarly situated v. Columbia Sportswear Co., Does 1 through 25, inclusive, Case No. 30-02022-01273036-CU-MT-CXC was removed from the Superior Court of California County of Orange, to the U.S. District Court for Central District of California on Sept. 7, 2022. The District Court Clerk assigned Case No. 8:22-cv-01654-DOC-JDE to the proceeding. The nature of suit is stated as Other P.I. The Columbia Sportswear Company -- https://www.columbia.com/ -- is an American company that manufactures and distributes outerwear, sportswear, and footwear, as well as headgear, camping equipment, ski apparel, and outerwear accessories.[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: James G Snell, Esq. Brendan Sasso, Esq. PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Phone: (650) 838-4300 Fax: (650) 838-4350 Email: jsnell@perkinscoie.com bsasso@perkinscoie.com CONSUMER DIRECT: Miranda Suit Remanded to King County Super. Court ------------------------------------------------------------------ John C. Coughenour of the U.S. District Court for the Western District of Washington, Seattle, remanded the case, DEBORAH JOHNSON MIRANDA, an individual, on behalf of herself and others similarly situated, Plaintiff v. CONSUMER DIRECT CARE NETWORK WASHINGTON, LLC, a Washington Limited Liability Company, Defendant, Class Action No. 2:22-CV-01014-JCC (W.D. Wash.), back to King County Superior Court based upon the parties' Stipulated Motion for Remand. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/yckuutdc from Leagle.com. HKM EMPLOYMENT ATTORNEYS LLP, Donald W. Heyrich, Jason A. Rittereiser, Rachel M. Emens, Joseph W. Wright, Seattle, WA, STUTHEIT KALIN LLC, Peter D. Stutheit - peter@stutheitkalin.com -- in Portland, Oregon, Attorneys for Plaintiff Deborah Johnson Miranda. DORSEY & WHITNEY LLP, Aaron D. Goldstein -- goldstein.aaron@dorsey.com -- in Seattle, Washington, Attorney for Defendant CONSUMER DIRECT CARE NETWORK WASHINGTON, LLC. CONTEMPORARY ART: Senior Files ADA Suit in S.D.N.Y. --------------------------------------------------- A class action lawsuit has been filed against The Contemporary Art Modern Project, LLC. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. The Contemporary Art Modern Project, LLC, Case No. 1:22-cv-07593 (S.D.N.Y., Sept. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Contemporary Art Modern Project Gallery specializes in art advisory and contemporary art.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal CREDIT SOLUTIONS: Mitchell Suit Removed to N.D. Illinois -------------------------------------------------------- The case styled as Willie Mitchell, on behalf of himself and all others similarly situated v. Credit Solutions, LLC, Synchrony Financial, Case No. 2022-CH-05632 was removed from the Circuit Court of Cook County, Illinois, to the U.S. District Court for Northern District of Illinois on Sept. 6, 2022. The District Court Clerk assigned Case No. 1:22-cv-04749 to the proceeding. The nature of suit is stated as Other Statutory Actions. Credit Solutions -- https://www.cs-llc.com/ -- is a Revenue Cycle Management Company based in Lexington, Kentucky.[BN] The Plaintiff is represented by: Seth Barrow Mccormick, Esq. GREAT LAKES CONSUMER LAW FIRM, LLC 73 W. Monroe St., Suite 100 Chicago, IL 60603 Phone: (312) 971-6787 Email: seth@glclf.com - and - Celetha Chatman, Esq. Michael Wood, Esq. COMMUNITY LAWYERS LLC 980 N. Michigan Avenue, Ste. 1400 Chicago, IL 60611 Phone: (312) 757-1880 Email: cchatman@communitylawyersgroup.com The Defendants are represented by: John Henry Bedard , Jr., Esq. BEDARD LAW GROUP, P.C. 4855 River Green Parkway, Suite 310 Duluth, GA 30096 Phone: (678) 253-1871 Email: jbedard@bedardlawgroup.com - and - Megan B. Poetzel, Esq. JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654 Phone: (312) 222-9350 Email: mpoetzel@jenner.com CVS PHARMACY: Court Dismisses Marquard Class Suit With Prejudice ---------------------------------------------------------------- Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California dismisses the case, LORI MARQUARD, Plaintiff v. CVS PHARMACY INC., Defendant, Case No. 2:19-cv-01581-DAD-KJN (E.D. Cal.), with prejudice. On Aug. 26, 2022, the parties filed a stipulation to voluntarily dismiss the putative class action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). They also stipulated that they will each bear their own fees and costs. Pursuant to the parties' stipulation and good cause appearing, Judge Drozd dismisses the action with prejudice. The parties will bear their own fees and costs. All pending deadlines and hearing dates are vacated. The Clerk of the Court is directed to close the case. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/43j3wbch from Leagle.com. DAVIS LUMBER: Hickman Sues Over Unpaid Overtime Compensation ------------------------------------------------------------ Joshua Hickman individually and on behalf of all others similarly situated v. DAVIS LUMBER COMPANY, INC., Case No. 6:22-cv-06099-SOH (W.D. Ark., Sept. 7, 2022), is brought under the Fair Labor Standards Act and the Arkansas Minimum Wage Act, for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees, as a result of the Defendant's failure to pay the Plaintiff and other hourly-paid employees lawful overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff regularly worked in excess of 40 hours per week throughout their tenure with Defendant. The Plaintiff was also regularly required to start work and to work for a period of time without being allowed to clock in. The Plaintiff was told that his off-the-clock time would be added to the Defendant's time clock system later, but the Plaintiff observed that this did not regularly occur and he was not paid for all the hours that he worked for the Defendant. As a result of the Plaintiff's regular practice to clock out lumber yard employees when the store employees left for the day, the Plaintiff and other hourly-paid employees were not paid a lawful overtime rate for the hours they worked in excess of 40 in a workweek. The Defendant has willfully and intentionally committed violations of the FLSA and AMWA, says the complaint. The Plaintiff was employed by the Defendant as an hourly-paid employee. Davis Lumber Company, Inc. is a retail provider of lumber, flooring, appliances, and hardware.[BN] The Plaintiff is represented by: Chris Burks, Esq. WH LAW | WE HELP 1 Riverfront Pl. – Suite 745 North Little Rock, AR 72114 Phone: (501) 891-6000 Email: chris@wh.law DC SITE SERVICES: Johnson Sues Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Pearl Johnson, on behalf of himself and others similarly situated v. DC SITE SERVICES LLC, KEVIN GEARHART, Case No. 2:22-cv-03368-SDM-KAJ (S.D. Ohio, Sept. 7, 2022), is brought against Defendants for their failure to pay employees overtime wages, seeking all available relief under the Fair Labor Standards Act of 1938 and the Ohio Prompt Pay Act. The Plaintiff worked 40 or more hours in one or more workweek(s). The Defendants did not include all additional remuneration, such as non-discretionary bonuses and/or non-discretionary incentive pay, in the Plaintiff's regular rate of pay for purposes of calculating overtime. As a result, the Plaintiff was not fully and properly paid overtime wages in violation of the FLSA and the Ohio Acts, says the complaint. The Plaintiff was employed by the Defendants beginning in April of 2021 until February of 2022. The Defendants have been jointly engaged in commerce or in the production of goods for commerce.[BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N. Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Ste. 126 Columbus, OH 43220 Phone: 614-949-1181 Fax: 614-386-9964 Email: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com - and - Peter Contreras, Esq. CONTRERAS LAW, LLC 1550 Old Henderson Road, Ste. 126 Columbus, Ohio 43220 Phone: 614-787-4878 Fax: 614-923-7369 Email: peter.contreras@contrerasfirm.com DOLLAR GENERAL: Does Not Provide Written Warranties, Allinder Says ------------------------------------------------------------------ MALCOLM ALLINDER, Plaintiff v. DOLLAR GENERAL CORPORATION, Defendant, Case No. 4:22-cv-00801-JM (Ark. Cir., Lonoke Cty., Sept. 6, 2022) is brought by the Plaintiff, individually and on behalf of all other similarly situated Arkansans, seeking injunctive and declaratory relief against Defendant for its alleged violations of the Magnuson-Moss Warranty Act. Under the Magnuson-Moss Warranty Act and its implementing regulations, retailers, like Defendant, must provide consumers with access to any written warranty for a product costing more than $15, prior to the point of sale. Despite these obligations under federal law, the Defendant does not provide consumers with access to written warranties, prior to sale, in a manner that complies with the Pre-Sale Availability Rule, says the suit. The Plaintiff seeks to require Defendant to provide Arkansas consumers with pre-sale access to product warranties as required by the Pre-Sale Availability Rule of Magnuson-Moss. Dollar General Corporation is an American chain of variety stores headquartered in Goodlettsville, Tennessee.[BN] The Plaintiff is represented by: David Slade, Esq. Brandon Haubert, Esq. WH LAW 1 Riverfront Place, Suite 745 North Little Rock, AR 72114 Telephone: (501) 891-6000 Facsimile: (501) 222-3027 E-mail: slade@wh.law brandon@wh.law - and - Jerry Kelly, Esq. KELLY LAW FIRM, PA 118 N. Center P.O. Box 500 Lonoke, AR 72086 Telephone: (501) 676-5770 Facsimile: (501) 676-7807 E-mail: jkelly@kellylawfirm.net DUBOIS TREE: Ramirez Sues to Recover Unpaid Overtime Wages ---------------------------------------------------------- Ralph Ramirez and Jose Luis Mendez, on behalf of themselves and all other similarly situated, known and unknown v. DUBOIS TREE SERVICE, LLC, a Colorado limited liability company and Ronald Lee Starr, Individually, Case No. 1:22-cv-02295-RM (D. Colo., Sept. 7, 2022), is brought under the Fair Labor Standards Act, the Colorado Minimum and Pay Standards and the Colorado Wage Act to recover unpaid overtime wages and additional damages. The Plaintiffs were consistently required to work more than 40 hours each week. The Plaintiffs were not paid overtime premiums of one and one-half his regular rate of pay for hours worked over 40 in individual work weeks. The Plaintiffs were paid only his straight time hourly rate for the first 40 hours worked each week. The Plaintiffs did not receive any compensation, including regular or overtime wages, for hours worked over 40 in individual work weeks. As such the Plaintiffs did not receive straight time or overtime wages for hours worked in excess of 40 in individual work weeks, says the complaint. The Plaintiffs are former landscapers and laborer workers of the Defendants. DUBOIS TREE SERVICE, LLC owns and operates a landscaping company. DTS performs landscaping and related services across the Denver-metro area and other locations in Colorado.[BN] The Plaintiffs are represented by: John William Billhorn, Esq. BILLHORN LAW FIRM 7900 E. Union Ave., Suite 1100 Denver, Colorado 80237 Phone: (720)-386-9006 - and - Samuel D. Engelson, Esq. BILLHORN LAW FIRM 53 W. Jackson Blvd., Suite 1137 Chicago, Illinois 60604 Phone: (312)-853-1450 DVINE GOURMET: Toro Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against DVine Gourmet, LLC. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. DVine Gourmet, LLC, Case No. 1:22-cv-07588 (S.D.N.Y., Sept. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. d'Vine Gourmet -- https://stores.dvinegourmet.com/ -- specialize in unique, Arizona-made products with an award-winning selection of local food, gifts, wines, & more.[BN] The Plaintiff appears pro se. ELECTROLUX HOME: SMCA's & SATL's Bids to Dismiss Mendoza Suit OK'd ------------------------------------------------------------------ In the case, ERIKA MENDOZA, et al., an individual, on behalf of herself and all others similarly situated, Plaintiffs v. ELECTROLUX HOME PRODUCTS, THAILAND LIMITED INC., et al., Defendants, Case No. 1:20-cv-01133-DAD-BAM (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California grants in part the motions to dismiss the First Amended Complaint filed on behalf of Defendants Sharp Manufacturing Co. of America and Sharp Appliances Thailand Limited on Nov. 30, 2020. In their FAC, Plaintiffs Erika Mendoza and James Hunt allege they are California residents who suffered economic injury as a result of defective "over-the-range" ("OTR") microwaves that were designed, manufactured, marked, distributed, and sold by the Defendants between 2011 to 2017. OTR microwaves are microwaves "exclusively designed and specifically intended for installation on a vertical wall directly above the cooking surface of the range." Despite being identified as OTR microwaves, the Plaintiffs allege that the microwaves at issue were not safe to be used over a cooktop. According to them, these Microwaves contain stainless steel handles that reach unsafe temperatures when the cooking surface below is in use. This alleged defect "impairs the use of the Microwave's handle and exposes anyone who touches it to a substantial risk of permanent and/or serious injury." In support of their contention that the Microwave handles reach unsafe temperatures, the Plaintiffs rely on the American Society of Testing Materials' Standard Guide for Heated System Surface Conditions that Produce Contact Burn Injuries ("ASTM Standard C1055-03"). Under ASTM Standard C1055-03, skin contact with any metal which has a temperature in excess of 111 degrees Fahrenheit may cause injury, with the risk of injury and/or pain rising "exponentially with each degree increase" above 111 degrees Fahrenheit. The Plaintiffs allege that the Microwaves exceed the ASTM Standard C1055-03 because their stainless-steel handles reach temperatures in excess of 131 degrees Fahrenheit when the cooktop below is operated. In December 2014, Mendoza purchased an OTR microwave (a Frigidaire Professional Microwave Oven, Model No. FPMV189KFC) from Modesto Direct Appliance in Modesto, California. She asserts that when making her purchase, she "relied on the representation that her Microwave was an OTR Microwave," which was represented on her receipt and sales documents. In November 2016, Hunt purchased an OTR microwave (a Frigidaire Gallery Over-The-Range Microwave Oven, Model No. FGMV175QFA) from Lowe's in Bakersfield, California. He also asserts that he "relied on the representation that his Microwave was an OTR Microwave," as identified by his receipt and sales documents, when making his purchase. Both Plaintiffs would not have purchased or would have paid less for their Microwaves if the Handle Defect had been disclosed revealing the Microwaves were not suitable for installation as OTR Microwaves as represented." Defendant Electrolux is a Delaware corporation with its principal place of business in North Carolina. It distributes products, including microwaves, under a variety of brand names, including Electrolux, Electrolux ICON, Frigidaire Professional, Frigidaire Gallery, Frigidaire, Eureka, Kelvinator, Sanitaire, Tappan, and White-Westinghouse. The Plaintiffs allege that Electrolux distributed and sold the Microwaves throughout the United States and continued to sell the Microwaves even after learning of the handle defect. Defendant Midea Microwave and Electrical Appliances Manufacturing Co., Limited ("Midea China") is a manufacturing company incorporated and with its principal place of business in China. According to the Plaintiffs, Midea China manufactured several of the Microwaves and supplied them to Electrolux. In March 2010, prior to shipping the Microwaves to the United States, Midea China performed product testing on the Microwaves, which recorded that the Microwaves' handle surface temperatures reached 137.48 degrees Fahrenheit -- well in excess of the ASTM Standard C1055-03 -- when "using a mere 30% of a burner's power from the cooktop below." Midea China submitted these findings to Underwriter Laboratories, LLC ("UL") as part of the process to certify the Microwaves for sale in the United States. The Plaintiffs aver that Midea China had "actual and/or constructive knowledge" of the handle testing as a result of this product testing, which was performed prior to the sale of the Microwaves in the United States. Midea China allegedly manufactured the Hunt Microwave. Midea America Corp. is a Florida corporation with its principal place of business in New Jersey. It is the North American headquarters of Midea, a manufacturer that "markets and distributes" various home appliances. In April 2017, Midea America opened a research and development facility in Louisville, Kentucky that, inter alia, tests certain Midea equipment sold in the United States. The Plaintiffs allege that, due to communications between Electrolux, Midea China, and Midea America, Midea America had knowledge of the handle defect at least as of January 2016. However, they do not allege whether Midea America itself conducted any tests of the Microwaves at issue in this action. Sharp Appliances Thailand Limited ("SATL") is a Thailand-based manufacturer and supplier of microwaves that contracted with Electrolux to manufacture some of the Microwaves for distribution in the United States. The Plaintiffs allege that SATL had "actual and/or constructive knowledge of" the handle defect as of at least May 2011 due to product testing. SATL also allegedly manufactured the Mendoza Microwave. Sharp Manufacturing Co. of America ("SMCA") is a division of Sharp Electronics Corp. with its principal place of business in Tennessee. Sharp Electronics Corp. is a New York corporation with its principal place of business in New Jersey. According to the Plaintiffs, SMCA performs product testing on certain microwaves that are sold in the United States, including Microwaves manufactured by defendant SATL. They assert that SMCA has "had actual and/or constructive knowledge" of the handle defect since at least May 2011 due to its own laboratory testing. Lowe's is a North Carolina corporation with its principal place of business in North Carolina, and Modesto is a California corporation with its principal place of business in California. As retailers, Lowe's and Modesto allegedly sold the Microwaves to plaintiffs and restated the representation that the Microwaves were suitable for OTR use. On May 19, 2017, Mendoza and Hunt filed a complaint initiating the putative class action lawsuit against Electrolux in the Stanislaus County Superior Court, alleging violations of California's Consumer Legal Remedies Act ("CLRA"), California's Unfair Competition Law ("UCL"), and the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"). On June 22, 2017, Electrolux removed the action to this federal court pursuant to 28 U.S.C. Section 1332(d), on the grounds that diversity jurisdiction exists under the Class Action Fairness Act because the putative class contained at least 100 class members, minimal diversity of citizenship was met, and the amount in controversy exceeded $5 million. The next day, on June 23, 2017, it filed a motion to transfer this action to the Middle District of Pennsylvania, which this court granted on Nov. 2, 2017. While the case was pending before the Middle District of Pennsylvania, the case was consolidated with related actions pending in that district, Rice v. Electrolux Home Products, Inc., No. 4:15-cv-00371-MWB, and Mauro v. Electrolux Home Products, Inc., Case No. 4:18-cv-00539-MWB. Approximately one year after the case's transfer, on Oct. 3, 2018, the Plaintiffs -- along with the plaintiffs in the consolidated action -- filed an amended consolidated class action complaint against Electrolux; Lowe's; SMCA; SATL; Midea America; Midea China; and Modesto, (collectively, "Defendants"). On Jan. 15, 2020, the U.S. District Court for the Middle District of Pennsylvania granted motions to dismiss brought by SMCA, SATL, Midea China, and Midea America and granted in part a motion to dismiss brought by Electrolux, Lowe's and Modesto. The Plaintiffs promptly moved for reconsideration of that court's order on Jan. 29, 2020, which was granted, in part, on Aug. 13, 2020. Specifically, the district court in Rice reinstated some of the Plaintiff's causes of action that it had initially dismissed with prejudice, reinstated and dismissed without prejudice some causes of action that it had initially dismissed with prejudice, and transferred their action back to the Eastern District of California. Two months after being transferred back to the Eastern District of California, on Nov. 13, 2020, the Plaintiffs filed the operative FAC in this Court against the Defendants on behalf of a putative class of similarly situated consumers, once again alleging violations of the CLRA, the UCL, and the Song-Beverly Act. On Nov. 30, 2020, SAMC, SATL, Midea China, and Midea America each filed separate motions to dismiss, and defendants Electrolux, Lowe's and Modesto filed a joint motion to dismiss. On Jan. 5, 2021, the Plaintiffs filed a consolidated opposition to the SAMC's and SATL's motions to dismiss, a consolidated opposition to Midea China's and Midea America's motions to dismiss, and an opposition to Electrolux's, Lowe's, and Modesto's motion to dismiss. On Jan. 26, 2021, SAMC, SATL, Midea China, and Midea America each filed separate replies to the Plaintiffs' applicable oppositions to their motions to dismiss, and Electrolux, Lowe's, and Modesto filed a joint reply. In the two pending motions to dismiss before the Court, SMCA and SATL contend that: (1) the Plaintiffs lack standing with respect to their ability to seek injunctive relief and to assert claims on behalf of the putative class members regarding products that plaintiffs did not themselves purchase; (2) the Court lacks personal jurisdiction over the claims brought against SMCA and SATL; and (3) the Plaintiffs fail to state any cognizable claims against SMCA and SATL upon which relief can be granted. First, the parties do not dispute that one of the named Plaintiffs, Mendoza, has standing to assert claims against SMCA and SATL related to their manufacturing and/or testing of the Mendoza Microwave. Instead, SMCA and SATL merely contend that the only Microwave they tested or manufactured was the Mendoza Microwave. Thus, they argue that Hunt, as well as "purchasers of any non-Mendoza Microwav, have no standing to bring a claim against them because those Plaintiffs did not purchase a microwave that" SMCA or SATL manufactured or tested. Judge Drozd holds that this argument is made irrelevant by defendants SMCA's and SATL's concessions that they tested and/or manufactured the Mendoza Microwave, and accordingly, that at least one named plaintiff has standing to bring claims against them in this action. Moreover, the parties do not dispute that at least one of the named Plaintiffs has standing to bring claims against the other five defendants named. Accordingly, Judge Drozd is satisfied that at least one named plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant their invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on their behalf. To the extent that the Defendants argue that the Plaintiffs lack standing to represent classes of individuals who purchased the other Microwaves or that the Plaintiffs' class is fatally overbroad, Judge Drozd finds these arguments unavailing. The Defendants' standing objection merely raises an issue to be considered, if at all, in connection with a motion for class certification. In their motions to dismiss, SMCA and SATL argue that the Plaintiffs lack standing to pursue injunctive relief under the CLRA and UCL because they "have not alleged that economic injury is imminent or will reoccur." More specifically, SATL asserts that the Plaintiffs do not allege that they have any intention of repurchasing the Microwaves, and indeed, they allege that they would not have purchased the Microwaves if they had known about the handle defect. The Plaintiffs counter that these arguments overlook Ninth Circuit caselaw addressing imminent future harm in the product liability context, pointing to the possibility that they could be injured through repurchasing the allegedly defective Microwaves upon "reasonably, but incorrectly, assuming the product was improved." Judge Drozd holds that the Plaintiffs do not assert any comparable allegations in their FAC that they have any desire to repurchase the Microwaves or will in fact do so. Hence, their argument that they have standing to pursue injunctive relief necessarily fails. Alternatively, Mendoza and Hunt do not allege that they themselves were even physically injured by the high temperatures reached by the Microwave handles. They may not allege an entirely new type of injury for the first time in their opposition to the Defendants' motions to dismiss. For these reasons, Judge Drozd finds the Plaintiffs lack standing to seek injunctive relief. Second, SMCA and SATL argue that the claims asserted against them in the Plaintiffs' FAC must be dismissed because the Court lacks personal jurisdiction over them. In seeking to make their necessary prima facia showing of personal jurisdiction in the FAC, the Plaintiffs assert that both general and specific personal jurisdiction exist in California as to SMCA. They argue that the Court has general jurisdiction over SMCA because: (1) SMCA was incorporated in California on Nov. 13, 1997 and has continuous and systematic business contacts in the state; and (2) a second corporate entity, of which SMCA is a division, became subject to personal jurisdiction in California when it merged with a third entity that was in fact incorporated in California. Judge Drozd finds that the Plaintiffs have failed to sufficiently allege that SMCA has such continuous and systematic business contacts with California to be subject to general jurisdiction in the state. It is clear that California is not one of the "paradigm bases for general jurisdiction" over SMCA because the parties agree that SEC is incorporated in New York with its principal place of business in New Jersey, and that SMCA, a division of SEC, has its principal place of business in Tennessee. The Plaintiffs also fail to sufficiently allege that SMCA's "affiliations with the State were so continuous and systematic as to render it essentially at home" in California. Judge Drozd further finds that the Plaintiffs' allegations in their FAC are insufficient for the Court to conclude that the de facto merger exception applies. They have not pled any facts suggesting that the fourth exception -- which would apply if the transfer of assets from SEMA to SEC was for the "fraudulent purpose of escaping liability for SEMA's debts" -- applies. Accordingly, they have not plausibly alleged that general jurisdiction exists in California over SEC and by extension, SMCA, by virtue of SEMA's merger into SEC. As to specific jurisdiction, the parties dispute whether specific jurisdiction exists in California as to SMCA. Judge Drozd holds that because the Plaintiffs have not alleged facts establishing that defendant SMCA expressly aimed its conduct at California, he has no basis upon which it can find that it would have been foreseeable that defendant SMCA's actions in Tennessee would cause harm to plaintiff Mendoza in California. Accordingly, he finds that the Plaintiffs ave failed to allege facts establishing that SMCA purposefully directed its activities toward California. As to the claim arising out of or relates to forum-related activities, Judge Drozd finds that, as alleged, SMCA's actions do not connect it with California in a way sufficient to support the assertion of personal jurisdiction over it. He says the Plaintiffs' general allegations that SEC controls SMCA and maintains multiple offices in California cannot confer specific jurisdiction, because the Plaintiffs have failed to draw any connection between SEC's operations in California and SMCA's alleged conduct, which consists of conducting compliance testing in Memphis, Tennessee on some of the Microwaves. As to reasonableness, the Plaintiffs have failed to establish that SMCA is subject to personal jurisdiction in California for the claims asserted in the FAC. Accordingly, Judge Drozd need not address reasonableness. SATL argues that the Court lacks personal jurisdiction over it. Judge Drozd finds that apart from their alter-ego argument, the Plaintiffs do not raise any additional arguments as to why the Court may exercise jurisdiction over SATL. He concludes that the Plaintiffs have failed to establish that SATL may be subject to general or specific personal jurisdiction in California for the claims asserted against that Defendant in the FAC. In their opposition to SMCA's and SATL's motions to dismiss, the Plaintiffs argue that if the Court does not conclude that personal jurisdiction exists in California as to SMCA and SATL, they "should be permitted limited jurisdictional discovery." Judge Drozd holds that the Plaintiffs have not met their burden of establishing the existence of personal jurisdiction over SMCA or SATL. Moreover, they have not explained how limited discovery would likely reveal contacts that would give rise to general or specific personal jurisdiction over these defendants. Indeed, the Plaintiffs do not provide any argument or explanation whatsoever for their request to conduct jurisdictional discovery. The Plaintiffs have therefore not established that jurisdictional discovery is justified, and the Court will not permit the entirely speculative discovery the Plaintiffs seek. Third, having concluded that the Court lacks personal jurisdiction over SMCA and SATL, Judge Drozd does not address the Defendants' arguments advanced in support of their motion brought pursuant to Rule 12(b)(6). Accordingly, the remainder of their motions to dismiss are denied as having been rendered moot by his Order. Finally, the Plaintiffs have requested leave to amend their FAC in the event the Court grants SMCA's and SATL's motions to dismiss. Judge Drozd finds no indication that allowing amendment would be prejudicial to the Defendants, and the Defendants make no argument to that effect. There is also nothing to suggest that the Plaintiffs have acted in bad faith. Although the Court has denied the Plaintiffs leave to conduct jurisdictional discovery based on the lack of any showing by them that such discovery is warranted, it appears conceivable that they are in possession of facts from the greater than five years of litigation of the case that could allow them to address the jurisdictional deficiencies identified by the court in this order in a second amended complaint. For this reason, and because the Plaintiffs have not previously attempted to cure deficiencies identified by the Court through amendments and there is no jurisdiction to which it would be proper for it to transfer the action at this time, the Plaintiffs is therefore granted leave to amend. For the reasons he stated, Judge Drozd grants SMCA's and SATL's motions to dismiss the Plaintiffs' claims for lack of standing as to the Plaintiffs' request for injunctive relief only and denies otherwise. He grants SMCA's and SATL's motions to dismiss under Rule 12(b)(2) for lack of personal jurisdiction with leave to amend. He denies their motions to dismiss for failure to state a cognizable claim under Rule 12(b)(6) as having been rendered moot by the Order. The motions to dismiss filed by Midea China, Midea America, Electrolux, Lowes, and Modesto remain pending. The Plaintiffs will file an amended complaint, if any, within 21 days of the date of service of the Court's order resolving the last of the currently pending motions to dismiss. The Clerk of the Court is directed to reassign the case to U.S. District Judge Ana I. de Alba for all further proceedings before the district court. The parties are advised that all future filings in the case in this district court will bear the new case number of 1:20-cv-001133-ADA-BAM. A full-text copy of the Court's Sept. 6, 2022 Order is available at https://tinyurl.com/m7m7wdna from Leagle.com. EXPEDIA GROUP: Sued Over Unlawful Interception of Communications ---------------------------------------------------------------- Jamie Huber, individually and on behalf of all others similarly situated v. EXPEDIA GROUP, INC., Case No. 2:22-cv-03570 (E.D. Pa., Sept. 7, 2022), is brought under the Pennsylvania Wiretapping and Electronic Surveillance Control Act stemming from the Defendant's unlawful interception of Plaintiff's and Class members' electronic communications through the use of "session replay" spyware that allowed the Defendant to watch and record the Plaintiff's and the Class members' visits to its website. The Defendant utilized "session replay" spyware to intercept the Plaintiff's and the Class members' electronic computer-to-computer data communications with the Defendant's website, including how they interacted with the website, their mouse movements and clicks, keystrokes, search terms, information inputted into the website, and pages and content viewed while visiting the website. Defendant intercepted, stored, and recorded electronic communications regarding the webpages visited by Plaintiff and the Class members, as well as everything the Plaintiff and the Class members did on those pages, e.g., what they searched for, what they looked at, the information they inputted, and what they clicked on. The Defendant intercepted the electronic communications at issue without the knowledge or prior consent of the Plaintiff or the Class members. The Defendant did so for its own financial gain and in violation of the Plaintiff's and the Class members' substantive legal privacy rights under the WESCA, says the complaint. The Plaintiff most recently visited Defendant's website on or about August 2022. The Defendant owns and operates the following website: www.expedia.com.[BN] The Plaintiff is represented by: Ari H. Marcus, Esq. MARCUS ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (732) 695-3282 Facsimile: (732) 298-6256 Email: Ari@marcuszelman.com FCI TOTAL HOMES: Loja Sues Over Unpaid Overtime Compensation ------------------------------------------------------------ Boris Loja, individually and on behalf of all other collective persons similarly situated v. F.C.I. TOTAL HOMES, INC., FRANZOSO CONTRACTING, INC., MARK FRANZOSO as an Individual, and JOHN MANDARA as an individual, Case No. 1:22-cv-07601 (S.D.N.Y., Sept. 6, 2022), is brought pursuant to the Fair Labor Standards Act in order to remedy the Defendants' wrongful withholding of Plaintiff's lawfully earned wages and overtime compensation, as well as the New York State Labor Law, as well as the supporting New York State Department of Labor Regulations for violations of overtime compensation requirements, and failure of Defendants to comply with notice and record-keeping requirements. The Plaintiff worked for the Defendants in excess of 40 hours per week without receiving the appropriate compensation for overtime hours worked beyond 40 hours as required by federal and state law. The Defendants maintained a policy and practice of requiring the Plaintiff to work in excess of 40 hours per week without providing them with appropriate overtime compensation required by State and Federal law and regulations. As a result of the Defendants' actions, the Plaintiff have suffered great hardship and damages and are entitled to recovery of back wages, front wages, liquidated damages, damages for emotional distress, punitive damages, attorney's fees, costs, and other such damages of an amount to be determined at trial, says the complaint. The Plaintiff worked for the Defendants as an assistant laborer, laborer, and construction worker at various sites and locations as required for various construction, renovation, or demolition jobs for which the Defendants were contracted, from spring of 2013 until September 26, 2020. The Defendants have been in the construction, installation, renovation and/or demolition business with respect to commercial and residential buildings, homes, and structures throughout Westchester and nearby counties.[BN] The Plaintiff is represented by: Sameer Nath, Esq. SIM & DEPAOLA, LLP 42-40 Bell Boulevard, Suite 405 Bayside, New York 11361 Phone: (718) 281-0400 Email: SNath@SimDepaola.com FINANCIAL RECOVERY: Grice Files FDCPA Suit in W.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Financial Recovery Services, Inc., et al. The case is styled as Daniel Grice, individually and on behalf of all others similarly situated v. Financial Recovery Services, Inc., Case No. 6:22-cv-06384 (W.D.N.Y., Sept. 7, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Financial Recovery Services -- https://www.fin-rec.com/ -- provides custom collection and receivables management solutions, auditing, monitoring, and data security.[BN] The Plaintiff is represented by: Tamir Saland, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601-2726 Phone: (201) 282-6500 Fax: (201) 282-6501 Email: tsaland@steinsakslegal.com FIRST CHOICE: Natwick Sues Over Unpaid Minimum, Overtime Wages -------------------------------------------------------------- Tara Natwick, on behalf of herself and all others similarly situated v. FIRST CHOICE MEDICAL GROUP OF BREVARD, LLC, d/b/a EMERGE HEALTHCARE GROUP, LLC and LANCE FRIEDMAN, Individually, Case No. 6:22-cv-01607-PGB-EJK (M.D. Fla., Sept. 7, 2022), is brought pursuant to the Fair Labor Standards Act of 1938 and the Florida Minimum Wage Act to recover unpaid minimum and overtime wages and liquidated damages owed to the Plaintiff and all other current and former employees of the Defendant. Despite diligently working for the Defendants as agreed, the Defendants have failed to pay the Plaintiff any pay at all since June 17, 2022 for services rendered, much less the minimum wage or overtime at the rate of one and a half time the regular rate of pay for all hours worked over 40 in the workweeks, as required by the FMWA and FLSA, respectively. The Plaintiff were/are working and working in excess of 40 hours per work week and the Defendant knew or should have known. The Defendant's violations of the FMWA, FLSA, and Florida law were/are knowing, willful, and in reckless disregard of the rights of the Plaintiff. Indeed, they were intentional, says the complaint. The Plaintiff has been employed by the Defendant as Director of Business Development from August 2021 to August 5, 2022. EMERGE is a Foreign Limited Liability Company.[BN] The Plaintiff is represented by: Miguel Bouzas, Esq. Wolfgang M. Florin, Esq. FLORIN GRAY BOUZAS OWENS, LLC 16524 Pointe Village Drive, Suite 100 Lutz, FL 33558 Phone: (727) 254-5255 Fax: (727) 483-7942 Email: miguel@fgbolaw.com wolfgang@fgbolaw.com FIRST STUDENT: Scott Labor Suit Removed to N.D. California ---------------------------------------------------------- The case styled GERMAINE SCOTT and SPYNSIR TUCKER, for themselves, all other similarly-situated individuals, and the general public, Plaintiffs v. FIRST STUDENT, INC., Defendant, Case No. CGC-22-600961, was removed from the Superior Court for the State of California, in and for the County of San Francisco, to the U.S. District Court for the Northern District of California on Sept. 6, 2022. The Clerk of Court for the Northern District of California assigned Case No. 3:22-cv-05057 to the proceeding. The complaint asserts the following causes of action: (a) rest period violations; (b) failure to pay minimum wages; (c) failure to provide accurate wage statements; (d) failure to timely pay all wages due and owing; (e) unfair business practices, in violation of the California Labor Code. First Student, Inc. provides bus transportation services. The Company offers students and schools a wide range of services such as full turnkey contracting, detailed route analysis, route optimization, charter bus rentals, pre-owned school bus sales, bus leasing and maintenance, and management services.[BN] The Defendant is represented by: David J. Dow, Esq. Jocelyn D. Hannah, Esq. LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101-3577 Telephone: (619) 232-0441 Facsimile: (619) 232-4302 E-mail: ddow@littler.com jhannah@littler.com FORD MOTOR: Rhodes Sues Over Fraudulent Concealment --------------------------------------------------- Brenda L, Rhodes snd Stephen T, Rhodes, individually and on behalf of all others similarly situated v. FORD MOTOR COMPANY, Case No. 2:22-cv-12110-MAG-CI (E.D. Mich., Sept. 7, 2022), is brought against the Defendant asserting claims for fraud by omission/fraudulent concealment, negligent misrepresentation, unjust enrichment, breach of express and implied warranties, violation of the Magnuson-Moss Warranty Act, and violations of the Texas Deceptive Trade Practices Act. The affected vehicles include model year 1999-2016 Ford Super Duty F-Series trucks (including F-250, F-350, F-450, and F-550 vehicles) designed, manufactured, marketed, distributed, sold, warranted, and/or serviced by Defendant (the "Class Vehicles"). The Class Vehicles suffer from a defect wherein the truck cab roof construction lacks the structural integrity to support the weight of the vehicle in a rollover accident, which can result in catastrophic crushing damage to both the passenger module and to any passengers inside during such an accident (the "Roof Defect" and "Defect".) The Roof Defect is inherent in the design of the vehicle. The Defect poses significant safety risks to Plaintiffs and members of the Classes when Class Vehicles experience a rollover accident. The roof of the cab cannot support the weight of the vehicle, which crushes the roof down to the level of the vehicle's body. The passengers are thus vulnerable to severe injury and even death as the roof deforms, compacting itself and the passengers into the body of the vehicle. The Defect has resulted in numerous incidences of passenger injury and death. The Roof Defect is not new to Defendant. In 2005, Defendant designed a passenger cab roof for Super Duty Vehicles to withstand more weight and provide significantly increased roof crush resistance, but did not implement the design into its manufacturing process until 2017. Despite being sued at least 162 times in relation to rollover, roof crush, and/or roof failure of the Class Vehicles, Defendant knowingly, actively, and affirmatively omitted and/or concealed the existence of the Defect to increase profits by selling additional Class Vehicles. Knowledge and information regarding the Defect and the associated safety risk was in the exclusive and superior possession of Defendant and its dealers, and was not provided to Plaintiffs and members of the Classes, who could not reasonably discover the Defect through due diligence. Based on pre-production testing, design failure mode analysis, and personal injury lawsuits, inter alia, the Defendant was aware of the Defect in the Class Vehicles and fraudulently concealed the Defect from Plaintiffs, says the complaint. The Plaintiffs purchased one of the Class Vehicles for personal, family, or household purposes. Ford designs, engineers, manufactures, markets, and/or sells vehicles throughout the United States through its network of authorized dealers.[BN] The Plaintiff is represented by: Sharon S. Almonrode, Esq. E. Powell Miller, Esq. THE MILLER LAW FIRM PC 950 W University Dr., Ste. 300 Rochester, MI 48307 Phone: (248) 841-2200 Email: ssa@millerlawpc.com epm@millerlawpc.com - and - Joseph H. Meltzer, Esq. Melissa L. Troutner, Esq. Ethan J. Barlieb, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 667-7706 Facsimile: (610) 667-7056 Email: jmeltzer@ktmc.com mtroutner@ktmc.com ebarlieb@ktmc.com FOX REHABILITATION: Loses Bid for Summary Judgment in Conner Suit ----------------------------------------------------------------- In the case, STEVEN A. CONNER DPM, P.C., Individually and on behalf of all others similarly situated, Plaintiff v. FOX REHABILITATION SERVICES, P.C., Defendant, Civil Action No. 21-cv-1580 (E.D. Pa.), Judge Michael M. Baylson of the U.S. District Court for the Eastern District of Pennsylvania denies: (i) the Plaintiff's Motion for Class Certification pursuant to FED. R. CIV. P. 23(a) and 23(b)(3)1; and (ii) the Defendant's Motion for Summary Judgment. The Plaintiff brings the action against Fox for alleged violations of the Telephone Consumer Protection Act ("TCPA") and conversion of its paper and toner used to print the "junk" faxes he received. The Plaintiff, on behalf of itself and other persons similarly situated, initiated the action on April 2, 2021, alleging the Defendant violated the TCPA when it sent it a series of fax during the early months of the COVID-19 pandemic and converted the Plaintiff's toner and paper used to print those faxes. On June 10, 2021, Fox answered the Plaintiff's Complaint, and the parties proceeded through discovery. On May 11, 2022, the Plaintiff moved to certify A FED. R. CIV. P. 23 class of Plaintiffs, including, "All persons and business entities sent one or more facsimiles on (1) March 27, 2020, (2) April 2, 2020, (3) April 16, 2020, (4) April 21, 2020, (5) May 14, 2020, (6) May 19, 2020, (7) June 3, 2020, or (8) June 16, 2020, identified as 'successful' transmissions on the fax transmission detail reports from OpenFax, and stating Defendant was 'HELPING FLATTEN THE CURVE WITH HOUSE CALLS' through its trademarked 'Geriatric House Calls' therapy model." The parties completed their briefing, and on Aug. 1, 2022, the Court held a recorded telephonic hearing on the Plaintiff's Motion for Class Certification. While the Plaintiff's Motion for Class Certification remained pending, the Defendant moved for summary judgment on July 6, 2022. It sought summary judgment on both of the Plaintiff's TCPA violation and conversion claims, primarily arguing the Defendant's faxes did not qualify as "advertisements" as defined by the TCPA, and thus did not violate the statute. The parties completed their briefing, and on Aug. 18, 2022, the Court held a recorded telephonic hearing on Defendant's Motion for Summary Judgment. The Plaintiff is a private, podiatry practice, and the Defendant is a private, healthcare company that provides various forms of physical and occupational therapies to patients in their homes. Patients can connect with the Defendant through referrals from their medical providers, like the Plaintiff. After a patient's physician refers them to the Defendant, the patient or their insurance provider pays for the Defendant's services, not the referring physician. The parties attribute importance to this fact -- that the Defendant does not sell its services directly to referring physicians such as the Plaintiff, instead receiving payment for its services from patients or their insurance providers. The Defendant sent the Plaintiff a series of faxes during the early months of the COVID-19 pandemic, approximately from March 2020 through June 2020. The content of the faxes is not disputed. The first fax dated March 27, 2020, acknowledged the unprecedented nature of the COVID-19 pandemic, reiterated the Defendant's "top priority" was its patients' "health and well-being," and informed the Plaintiff that its business continued to operate despite COVID-19's interruptions to healthcare. Thereafter, the Defendant sent seven more faxes to the Plaintiff, all of which followed a similar formula of content: (1) first a statement that the Defendant was helping flatten the COVID-19 curve; (2) followed by a description of a healthcare issue COVID-19 posed to patients; and (3) concluding with an anecdote that connected the Defendant's services to patients' healthcare issues. The party proposing class certification bears the burden of demonstrating all four prerequisites set out in Rule 23(a) and at least one prerequisite contained in Rule 23(b): numerosity, commonality, typicality, and adequacy. The Plaintiff seeks certification pursuant to Rule 23(b)(3) which requires it proves: (5) class members' common questions of law or fact predominate over any questions affecting only individual members (predominance); and (6) proceeding as a class action is the superior method to adjudication (superiority). The Plaintiff argues it satisfied the requirements of FED. R. CIV. P. 23(a) and (b). The Defendant argues certification is improper because the Plaintiff failed to establish an "essential prerequisite" to certification -- ascertainability of class membership. Without an ascertainable class, it argues, the Plaintiff subsequently failed to establish Rule 23(a)'s requirements of numerosity, commonality, and typicality. Judge Baylson holds that the Plaintiff failed to satisfy its ascertainability burden because the Openfax transmission logs it relies on to define class membership are demonstrably unreliable. The Plaintiff failed to set forth a "reliable mechanism" through which to ascertain membership to its class. Its mechanism -- to define membership by the fax numbers in Openfax's "successful" transmission lists—is unreliably because Openfax admits it does not reliably capture fax transmission information. Its contention -- it will identify the holders of the fax numbers on the Openfax lists at a later date -- underscores its failure to meet its burden of proving its class is presently ascertainable. Judge Baylson also holds that the Plaintiff failed to set forth an administratively feasible way of ascertaining real members of its class from unreliable lists of fax number. It yields only an unreliable list of fax numbers that may or may not possess common issues, and Judge Baylson rejects the Plaintiff's argument that its list of fax numbers sufficiently satisfies Rule 23's requirements. Even if the logs were reliable, Judge Baylson finds that the method the Plaintiff sets forth to identify class members, requires a highly individualized inquiry not permitted by Rule 23. Because the Plaintiff contends it never consented to receive the Defendant's faxes, but members of its proposed class members declared they did consent, individual questions of law predominate over common ones. Indeed, its argument -- that the declarations reveal only "consent," not "express consent" as required by the TCPA -- supports this finding because to determine the type of consent each individual class member did or did not provide the Defendant, assuming any was given at all, would require individualized review. Accordingly, the Plaintiff's Motion for Class Certification is denied. The parties do not dispute the Defendant sent the Plaintiff the faxes nor do they dispute their contents. The Defendant argues summary judgment is appropriate because its faxes did not meet the statutory definition of "advertisement." It maintains the faxes were purely informational, "merely informing physician offices about what the Defendant was doing to continue providing care safely during the unprecedented COVID-19 crisis." The Plaintiff argues the faxes were advertisements because they "drew attention to the availability and quality of" the Defendant's services, and thereby promoted those services it "offers commercially for a profit." Viewing the factual record in the light most favorable to the Plaintiff, Judge Baylson finds that the language within the four corners of the faxes could lead a reasonable fact-finder to conclude they were promotional and had "profit as an aim." The content of the Defendant's subsequent faxes was formulaic. Although, "a fax does not become an advertisement merely because the sender intended it to enhance the quality of its services and thus its profits" a reasonable fact-finder could conclude the language in these seven faxes promoted the availability and quality of the Defendant's services such that they could be advertisements. Also, these faxes contained language warranting the quality of the Defendant's services; they identified a patient problem, identified a service Defendant offered (at cost), and then explained how the Defendant's service sufficiently fixed the patient's problem. A reasonable fact-finder could conclude this language promoted services to be bought or sold and had "profit as an aim" particularly in light of the undisputed fact the Defendant's business model, even before COVID-19, was to charge a fee in exchange for resolving a patient's healthcare problem they experienced at home. Accordingly, the Defendant's Motion for Summary Judgment is denied. An appropriate Order follows. A full-text copy of the Court's Sept. 6, 2022 Memorandum is available at https://tinyurl.com/24ct7kz2 from Leagle.com. FRANK MARANDO: Landaverde Sues Over Landscapers' Unpaid Wages ------------------------------------------------------------- ROBERTO DEJESUS LANDAVERDE, on behalf of himself, individually, and on behalf of all others similarly-situated, Plaintiff v. FRANK MARANDO LANDSCAPE, INC., d/b/a MARANDO LANDSCAPING, and MARANDO GROUP, LTD., d/b/a MARANDO LANDSCAPING, and FRANK MARANDO, individually, and JOSEPH MARANDO, individually, Defendants, Case No. 1:22-cv-07585 (S.D.N.Y., Sept. 6, 2022) arises from the Defendants' unlawful labor policies and practices in violation of the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendants allegedly fail to pay proper minimum and overtime wages, fail to pay spread of hours compensation, and fail to furnish accurate wage statements and wage notices. Furthermore, the Defendants allegedly paid and treated all of their employees in the same manner. The Plaintiff worked for Defendants as a landscaper and laborer from June 15, 2019, through December 31, 2021, with the exception of January and February each year, when Plaintiff did not work in those roles. The Plaintiff primarily worked in Manhattan, the Bronx, and Queens in New York. Marando Landscaping and Marando Group are two New York corporations, both based in Queens, which operate as a single enterprise to provide commercial, residential, and municipal landscaping services in the New York Tri-state region, servicing clients in New York, New Jersey, and Connecticut.[BN] The Plaintiff is represented by: Ryan T. Holt, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 910 Franklin Avenue, Suite 200 Garden City, NY 11530 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 FUTURE MOTION: Wang Sues Over Defective Electronic Skateboard ------------------------------------------------------------- Raymond Wang, Devon Holt and Jerrod Hunter Nichols, individually and on behalf of all others similarly situated v. FUTURE MOTION, INC., Case No. 5:22-cv-05064 (N.D. Cal., Sept. 6, 2022), is brought to recover damages suffered as a result of a defective "Onewheel" product, an electronic skateboard designed, manufactured, marketed, distributed, and sold by Defendant Future Motion, Inc. ("FM"). The Onewheel electronic skateboard is defective and unreasonably dangerous under California and Florida law. The Onewheel board ("Board") is a self-balancing, battery-powered, one-wheeled transportation device that is often described as an electronic skateboard. The product was and is designed, developed, manufactured, produced, distributed, marketed, and sold by Defendant FM. FM developed and designed the subsystems that power the Onewheel, including motors, power electronics, battery modules, and smartphone applications ("apps"). One of Onewheel's key features (and its most dangerous and unpredictable feature) is that it will provide the rider with "pushback," or physical resistance, when approaching the device's limits during use. This pushback feature is allegedly designed as a warning to riders to avoid a dangerous situation, like excessive speeds, low battery power, or overcharging. Often, however, instead of or in addition to pushback, the Onewheel will simply shut off and nosedive abruptly, resulting in the rider being catapulted off the device (the "Nose-Dive Defect"). This defect has needlessly led to severe injuries, and at least three deaths. It has caused multiple broken bones, road rashes, cuts, and bruises, all because of a design flaw that was easily fixable. According to analysis conducted by retained experts, the Onewheel could have easily been designed to emit a warning signal (through a warning light, or auditory beep or tone) in the event of excessive speed, overcharging, or low battery. Or it could have been designed to simply slow down in these situations. Instead, the Onewheel skateboards were designed to abruptly stop and/or nosedive, at considerable risk to the rider. Even as the Nose-Dive Defect presents a serious safety risk to its riders, FM deliberately markets the Boards based on their ease of use. For example, its website promotes a testimonial from a rider that the Board is "The most fun toy that I've ever owned." This is obviously false and misleading: toys don't generally have the capacity to maim or kill their users. And at no point did FM disclose the Nose-Dive Defect to the consumer. No plaintiff or consumer would have purchased the Onewheel if they had known about this material defect, or would not have paid as much for them. The Plaintiff accordingly brings this case to seek compensation, costs, and expenses caused by this defect, says the complaint. The Plaintiffs purchased a used Onewheel Plus. Future Motion sells its Onewheel products through its website and numerous dealers throughout the United States.[BN] The Plaintiffs are represented by: Abby R. Wolf, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 300 Berkeley, CA 94710 Phone: (510) 725-3000 Facsimile: (510) 725-3001 Email: abbyw@hbsslaw.com - and – Steve W. Berman, Esq. Jerrod C. Patterson, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Phone: (206) 623-7292 Facsimile: (206) 623-0594 Email: steve@hbsslaw.com jerrodp@hbsslaw.com GAMESTOP INC: Licea Sues Over Unlawful Wiretapping Software ----------------------------------------------------------- Miguel A. Licea, individually and on behalf of all others similarly situated v. GAMESTOP, INC., a Minnesota corporation, and DOES 1 through 25, inclusive, Case No. 5:22-cv-01562 (C.D. Cal., Sept. 6, 2022), is brought against the Defendant for violations of the California Invasion of Privacy Act as a result of the Defendant who secretly deployed wiretapping software on its Website without warning visitors or obtaining their consent. The Defendant covertly wiretaps the communications of all visitors who utilize the chat feature at www.gamestop.com; and shares the secret transcripts of those wiretaps with a third party that boasts of its ability to harvest personal data from the transcripts for marketing and other purposes. The Defendant neither informs visitors nor obtains their prior, express consent to these intrusions. As a result, Defendant has violated the CIPA. The Plaintiff visited the Defendant's Website and communicated with an employee of the Defendant through the website chat feature. Unbeknownst to website visitors, the Defendant creates exact transcripts of all such communications and shares the transcripts with at least one third party using secretly embedded wiretapping technology. The Defendant did not inform the Plaintiff, or any of the Class Members, that the Defendant was secretly monitoring, recording, and sharing their communications. The Defendant did not obtain the Plaintiff's or the Class Members' consent to intercepting, monitoring, recording, and sharing the electronic communications with the Website. The Plaintiff and Class Members did not know at the time of the communications that the Defendant was secretly intercepting, monitoring, recording, and sharing the electronic communications, says the complaint. The Plaintiff is a citizen of California residing within the Central District of California. The Defendant is a Minnesota corporation that owns, operates, and/or controls the www.gamestop.com website.[BN] The Plaintiff is represented by: Scott J. Ferrell, Bar No. 202091 PACIFIC TRIAL ATTORNEYS A Professional Corporation 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com GEICO CASUALTY: Court Administratively Closes Class Action ---------------------------------------------------------- In the class action lawsuit captioned as CARLA WRIGHT v. GEICO CASUALTY COMPANY, Case No. 3:20-cv-00823-BAJ-SDJ (M.D. La.), the Hon. Judge Brian A. Jackson entered an order directing the Clerk of Court to administratively close the above-captioned matter in consideration to the Joint Motion to Continue to Hold Class Certification Order in Abeyance. The parties shall file a Joint Status Report, Motion to Lift the Stay, and Motion for Scheduling Conference no later than October 3, 2022, the Court says. 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/3xay0Qv at no extra charge.[CC] GLOBAL BROKERAGE: Rosenfeld Withdraws as Counsel in Securities Suit ------------------------------------------------------------------- In the case, IN RE GLOBAL BROKERAGE, INC. f/k/a FXCM INC. SEC. LITIG. This Document Relates To: ALL ACTIONS, Civil Action No. 1:17-cv-00916-RA-BCM (S.D.N.Y.), Judge Ronnie Abrams of the U.S. District Court for the Southern District of New York issued an order withdrawing David A. Rosenfeld of Robbins Geller Rudman & Dowd LLP as counsel of record. Judge Abrams has considered the Motion for Leave to Withdraw as Counsel. The Clerk of the Court is directed to remove the named attorney and law firm from the docket, as well as the ECF Service List. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/2p83vjz2 from Leagle.com. GOLDMAN SACHS: Bid to Dismiss Retirement Plan Class Suit Granted ---------------------------------------------------------------- Jonathan Stempel at Reuters reports that Goldman Sachs Group Inc won the dismissal of a proposed class action by tens of thousands of employees over its alleged imprudent use of high-cost, underperforming in-house mutual funds as investment options in their retirement plan. U.S. District Judge Edgardo Ramos in Manhattan found no proof that Goldman's 401(k) retirement committee's decision to use five funds managed by Goldman Sachs Asset Management created a conflict of interest because the affiliate received management fees. He also found no duty for Goldman to have more quickly removed poorly performing funds from the plan, which had about three dozen investment options, and called it speculative to suggest the committee would have "acted differently" if it had more formal criteria to assess fund performance. "The mere possibility that committee members may have been influenced by a desire to benefit Goldman Sachs is not enough to show a breach of the duty of loyalty," Ramos wrote in a 34-page decision made public late Thursday. Lawyers for the employees did not immediately respond on Friday to requests for comment. Goldman did not immediately respond to similar requests. The lawsuit covered an estimated 29,000 to 35,000 Goldman employees who invested as much as $7.5 billion in their 401(k)s between Oct. 25, 2013 and June 6, 2017, when the last of the five challenged funds was removed from the plan. It was one of a series of lawsuits challenging companies' management of defined contribution plans under the federal Employee Retirement Income Security Act, or ERISA. The case is Falberg v Goldman Sachs Group Inc, U.S. District Court, Southern District of New York, No. 19-09910. [GN] GROCERY DELIVERY: McClure Sues Over Illegal Automatic Renewal ------------------------------------------------------------- Amanda McClure, individually and on behalf of all other persons similarly situated v. GROCERY DELIVERY E-SERVICES USA INC. D/B/A HELLOFRESH, Case No. 5:22-cv-05077-NC (N.D. Cal., Sept. 7, 2022), is brought against the Defendant for engaging in an illegal "automatic renewal" scheme with respect to its subscription sports broadcasting and streaming services across its network sites through its website at https://www.HelloFresh.com. When consumers sign up for the HelloFresh Subscriptions through the HelloFresh Website, the Defendant actually enrolls consumers in a program that automatically renews customers' HelloFresh Subscriptions from week-to-week and results in weekly charges to the consumer's credit card, debit card, or third-party payment account (collectively, "Payment Method"). In doing so, the Defendant fails to provide the requisite disclosures and authorizations required to be made to and obtained from California consumers under California's Automatic Renewal Law (ARL). To sign up for one of the Defendant's HelloFresh Subscriptions through the HelloFresh Website, customers must provide the Defendant with their billing information and Defendant then automatically charges customers' Payment Method as payments become due, typically on a weekly basis. The Defendant is able to unilaterally charge its customers' renewal fees without their consent, as Defendant is in possession of its customers' billing information. Thus, the Defendant has made the deliberate decision to charge Plaintiff and other similarly situated customers on a weekly basis, absent their consent under the ARL, relying on consumer confusion and inertia to retain customers, combat consumer churn, and bolster its revenues, says the complaint. The Plaintiff purchased a HelloFresh Subscription from the Defendant's Website while residing in California. The Defendant is an international food delivery company that, among other activities, delivers pre-portioned ingredients and recipes as an alternative to traditional grocery shopping.[BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com - and - Joseph I. Marchese, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. New York, NY 10019 Phone: (646) 837-7150 Facsimile: (212) 989-9163 Email: jmarchese@bursor.com aleslie@bursor.com - and - Adrian Gucovschi, Esq. GUCOVSCHI ROZENSHTEYN, PLLC. 630 Fifth Avenue, Suite 2000 New York, NY 10111 Phone: (212) 884-4230 Facsimile: (212) 884-4230 Email: adrian@gr-firm.com H.B. FULLER: Rouse Sues Over Unlawful Misrepresentation ------------------------------------------------------- Lisa Rouse, Juston Rouse, Jenna Drouin, and Nicholas Drouin, individually and on behalf of all those similarly situated v. H.B. FULLER COMPANY, and H.B. FULLER CONSTRUCTION PRODUCTS, INC., Case No. 0:22-cv-02173-ECT-ECW (D. Minn., Sept. 7, 2022), is brought for breach of express warranty; breach of implied warranty; negligence; negligent misrepresentation; fraud; and violations of various consumer protection statutes, among other claims, brought against Defendants and arising out of their design, manufacture, advertisement, and sale of TEC Power Grout ("Power Grout"). Despite the Defendants' repeated and consistent representations that Power Grout is "fast setting and open to traffic in four hours," "never needs sealing," is "crack and shrink resistant," and excellent in "environments such as high traffic and wet conditions," Power Grout in fact does not harden; cracks, crumbles, and falls out of joints when it is dry; and simply disintegrates when it is wet. The Defendants know that Power Grout is defective, and even have products on hand for the purported purpose of curing those defects. Of course, the Defendants do not sell those products to the general public, but instead hold them back until consumers complain about Power Grout's deficiencies. And even those products are defective, as they do not remedy the defects in Power Grout and often exacerbate the problems caused by the same. Further, Defendants attempt to limit their liability in a manner that is a violation of federal law, and consistently refuse to even accept the limited scope of responsibility that they have tried to carve out for themselves, leaving consumers all across the country--including the the Plaintiffs--with expensive tiling projects rendered faulty and the prospect of paying thousands of dollars each in order to make the necessary repairs. The Defendants' conduct has caused--and will continue to cause--damage to the Plaintiffs as well as the putative classes they seek to represent, and Plaintiffs and the putative classes are entitled to both monetary and injunctive relief, says the complaint. The Plaintiffs are users of the Defendant's Power Grout Product. HBF holds itself out as a corporation engaged in the manufacture, processing, marketing, supplying, and sale of industrial adhesives, industrial coatings, industrial sealants, and specialty materials.[BN] The Plaintiffs are represented by: David W. Asp, Esq. R. David Hahn, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Phone: (612) 339-6900 Email: dwasp@locklaw.com rdhahn@locklaw.com - and - Eric W. Richardson, Esq. David F. Hine, Esq. Emily E. St. Cyr, Esq. Petra G. Bergman, Esq. VORYS, SATER, SEYMOUR AND PEASE LLP The Great American Tower 301 East Fourth Street, Suite 3500 Cincinnati, Ohio 45202 Phone: (513) 723-4019 Fax: (513) 852-7885 Email: ewrichardson@vorys.com dfhine@vorys.com eestcyr@vorys.com pgbergman@vorys.com HEALTHLINE MEDIA: Hughley Sues Over Disclosure of Users' Identities ------------------------------------------------------------------- Sheila Hughley, and Robin Jefferson, individually and on behalf of all others similarly situated v. HEALTHLINE MEDIA, INC., Case No. 3:22-cv-05059 (N.D. Cal., Sept. 6, 2022), is brought against the Defendant for violating the Video Privacy Protection Act ("VPPA" or "the Act") by disclosing its digital users' identities and video-viewing preferences to Meta Platforms, Inc. without proper consent. Meta owns the popular social media platforms Facebook and Instagram. The VPPA prohibits "video tape service providers," such as Healthline, from knowingly disclosing consumers' personally identifiable information ("PII"), including "information which identifies a person as having requested or obtained specific video materials or services from a video tape provider," without the person having expressly given consent in a standalone consent form. The Defendant, through its website, www.healthline.com, collects and shares users' personal information with Meta using a "Meta Pixel." A Meta Pixel is a snippet of programming code that tracks users as they navigate through a website, including what searches they performed and which items they have clicked on or viewed. The Meta Pixel sends information to Meta in a data packet containing PII, such as the users' IP address, name, email, or phone number. Meta then stores this data on its own servers. In this case, by its incorporation of Meta Pixel, the Defendant shared PII with Meta, including at least the user's Facebook Profile ID and the title of the video that the user watched. A user's Facebook Profile ID is linked to their Facebook profile, which generally contains a wide range of demographic and other information about the user, including pictures, personal interests, work history, relationship status, and other details. The Defendant discloses the user's Facebook Profile ID and viewing content to Meta together in a single, unencrypted transmission, in violation of the VPPA. Because the user's Facebook Profile ID uniquely identifies an individual's Facebook account, Meta--or any other person can use the Facebook Profile ID to locate, access, and view the user's corresponding Facebook profile. In other words, the Defendant's use of the Meta Pixel allows Meta to know what video content its users viewed on its website. The Defendant users do not consent to such sharing through a standalone consent form, as required by the VPPA. As a result, Healthline violates the VPPA by disclosing this information to Meta, says the complaint. The Plaintiffs subscribes to Healthline's email list and provided Healthline with their PII, including name and email address when subscribing to its services. Healthline owns and operates www.healthline.com, a website that provides articles and video content to users, including information on topics such as physical and mental health, healthcare, and health related products.[BN] The Plaintiffs are represented by: Adam E. Polk, Esq. Simon Grille, Esq. Jessica Cook, Esq. Kimberly Macey, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Phone: (415) 981-4800 Email: apolk@girardsharp.com sgrille@girardsharp.com jcook@girardsharp.com kmacey@girardsharp.com HERBS & ARTS: Loadholt Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Herbs & Arts Intergalactic, Inc. The case is styled as Christopher Loadholt, on behalf of himself and all others similarly situated v. Herbs & Arts Intergalactic, Inc., Case No. 1:22-cv-07591-PAE-JLC (S.D.N.Y., Sept. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Herbs & Arts -- https://www.herbsandarts.com/ -- is a metaphysical supply store in Denver, Colorado who has served Denver and the region, striving to be a place of healing & sanctuary to all who enter regardless of one's beliefs.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com HERBS THAI BISTRO: Perez Sues Over Unpaid Minimum, Overtime Wages ----------------------------------------------------------------- Mario Perez, on behalf of himself and others similarly situated v. Herbs Thai Bistro LLC, Thaichella LLC, and Nutcha Kethirun, Case No. 1:22-cv-07606 (S.D.N.Y., Sept. 7, 2022), is brought to recover unpaid minimum wages, overtime wages, spread-of-hours, liquidated and statutory damages, pre- and post-judgment interest, and attorneys' fees and costs pursuant to the Fair Labor Standards Act, and violations the New York State Labor Law and their supporting New York State Department of Labor regulations. The Plaintiff was required to work in excess of 40 hours per week, but never received an overtime premium of one and one-half times his regular rate of pay for those hours. No notification, either in the form of posted notices, or other means, was ever given to the Plaintiff regarding wages are required under the FLSA or NYLL. The Defendants did not provide the Plaintiff a statement of wages, as required by NYLL, says the complaint. The Plaintiff was employed as a prep chef, delivery worker and general worker at the Defendants' Thai restaurants. The Defendants operate Thai restaurants under the name, "Herbs Thai Bistro" and "Thai Chella" located in New York City.[BN] The Plaintiff is represented by: Joshua Levin-Epstein, Esq. Jason Mizrahi, Esq. LEVIN-EPSTEIN & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4700 New York, NY10165 Phone: (212) 792-0046 Email: Joshua@levinepstein.com HIGHT ENTERPRISES: Loadholt Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Hight Enterprises, Ltd. The case is styled as Christopher Loadholt, on behalf of himself and all others similarly situated v. Hight Enterprises, Ltd. doing business as McGuckin Hardware, Case No. 1:22-cv-07596 (S.D.N.Y., Sept. 6, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hight Enterprises, Ltd. doing business as McGuckin Hardware -- https://www.mcguckin.com/ -- is a landmark hardware store with vast inventory & 18 departments ranging from garden to housewares.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com HOLIDAY HOSPITALITY: Park 80 Files Suit in N.D. Georgia ------------------------------------------------------- A class action lawsuit has been filed against Holiday Hospitality Franchising, LLC, et al. The case is styled as Park 80 Hotels, LLC, PL Hotels, LLC, Mayur Patel, JSK Exton LLC, JAY Z. Kuber Hospitality, Inc., Parmattma Corporation, Synergy Hotel, LLC, individually and on behalf of all others similarly situated v. Holiday Hospitality Franchising, LLC, Six Continents Hotels, Inc. doing business as: Intercontinental Hotels Group, IHG Technology Solutions, LLC, Case No. 1:22-cv-03709-LMM (N.D. Ga., Sept. 15, 2022). The nature of suit is stated as Other P.I. for Breach of Fiduciary Duty. Holiday Hospitality Franchising, LLC. (HHFL) was incorporated under the name Holiday Inns Franchising, Inc. in Delaware.[BN] The Plaintiffs are represented by: Andrew P. Bleiman, Esq. Mark Fishbein, Esq. MARKS & KLEIN, LLP - IL 1363 Shermer Road, Suite 318 Northbrook, IL 60062 Phone: (312) 206-5162 Email: andrew@marksklein.com mark@marksklein.com - and - Justin Michael Klein, Esq. MARKS & KLEIN, LLP 63 Riverside Avenue P.O. Box 07701 Red Bank, NJ 07701 Phone: (732) 747-7100 Email: justin@marksklein.com - and - Justin E. Proper, Esq. WHITE AND WILLIAMS LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 Phone: (215) 864-7165 Fax: (215) 399-9620 Email: properj@whiteandwilliams.com - and - MaryBeth Vassil Gibson, Esq. N. Nickolas Jackson, Esq. THE FINLEY FIRM, P.C. Building 14, Suite 230 3535 Piedmont Road Atlanta, GA 30305 Phone: (404) 320-9979 ext 202 Fax: (404) 320-9978 Email: mgibson@thefinleyfirm.com njackson@thefinleyfirm.com HONOLULU, HI: Class Suit Tolling Applies, Court Rules in Coles Suit ------------------------------------------------------------------- In the case, BRAD COLES; KEI JA COLES REVOCABLE LIVING TRUST; and 6650 HKD LLC, Plaintiffs-Appellants v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee (CASE NO. 1CCV-21-0000655). DAVID T. COOK, Plaintiff-Appellant v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee (CASE NO. 1CCV-21-0000662). MAGDY AREF and NEVINE MOUSTAFA, Plaintiffs-Appellants v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee (CASE NO. 1CCV-21-0000672). ERIN ISA DONLE; STANLEY ISA; and PEGGY ISA, Plaintiffs-Appellants v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee (CASE NO. 1CCV-21-0000695). MICHELLE KUNITAKE, Plaintiff-Appellant v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee (Case No. 1CCV-21-0000750), Case No. SCRQ-22-0000097 (Haw), the Supreme Court of Hawai'i issued an Opinion concluding that because Plaintiff Hakim Ouansafi's complaint satisfied the HRS Section 46-72's notice requirements, class action tolling applies to the Individual Suits. On April 13, 2018, torrential rains pummeled O'ahu. Ouansafi filed a class action lawsuit against the City and County of Honolulu in the Circuit Court of the First Circuit. Ouansafi said that the City's failure to inspect and maintain its East Honolulu storm and drainage system was the reason he, and other Honolulu residents like him, had been injured by the April 13, 2018 flood. Mr. Ouansafi moved for class certification. But before his motion was decided, he settled on an individual basis with the City. The court denied class certification. After the denial of class certification, individuals affected by the Flood brought 12 separate actions against the City in the Circuit Court of the First Circuit. Seven of those actions were assigned to Judge Dean Ochiai. The City filed motions to dismiss in all seven. It argued the suits were barred because they did not comply with HRS Section 46-72's (2012) two-year notice requirement. HRS Section 46-72 requires plaintiffs seeking to recover damages from the City for personal injury or property damage caused by a City official or employee's negligence to file a written notice of claim with the City no more than two years after their claim's accrual. The Plaintiffs argued their suits were timely because -- with respect to claims arising from the Flood -- HRS Section 46-72's statute of limitations was tolled between Oct. 12, 2018 (when Ouansafi filed his class action) and June 23, 2021 (when the court denied class certification in Ouansafi's suit). Alongside its motions to dismiss, the City also filed motions to reserve questions pursuant to Hawai'i Rules of Appellate Procedure Rule 15(a)2 in five of the cases before Judge Ochiai (the Individual Suits). The City asked the trial court to reserve two questions of law to the Hawai'i Supreme Court for consideration: (1) Whether a class action complaint fails to satisfy the notice requirements of HRS Section 46-72 because class action tolling does not apply to HRS Section 46-72; and (2) Whether class action tolling of the two-year statute of limitations in HRS Section 657-7 applies in the context of mass tort actions where a plaintiff is seeking personal damages such as emotional distress, and where the class representative's motion for class certification is denied on all four required prongs, including commonality. The court granted the City's motions to reserve questions. The Supreme Court accepted these reserved questions and resolves them. First, it holds that class action tolling applies to HRS Section 46-72 and that a class action complaint may therefore satisfy the statute's notice requirement. Second, it holds that the availability of class action tolling turns not on whether or not the class action is a "mass tort," but rather on whether it provided the defendant notice of the subject matter and potential size of the litigation at issue. The Supreme Court concludes that because the Ouansafi complaint satisfied these requirements, class action tolling applies to the Individual Suits. In sum, the Supreme Court holds that class action tolling applies to HRS Section 46-72 and that it may apply in the context of mass tort actions so long as the class action provided the Defendant notice of the subject matter and approximate size of the prospective litigation. A full-text copy of the Court's Sept. 2, 2022 Opinion is available at https://tinyurl.com/cx2ddubp from Leagle.com. Lyle S. Hosoda, Kourtney H. Wong, Spencer J. Lau, for the Plaintiffs-Appellants. Kaliko J. Warrington, for the Defendant-Appellee. HOOVER TREATED WOOD: Dean Files FLSA Suit in E.D. Arkansas ---------------------------------------------------------- A class action lawsuit has been filed against Hoover Treated Wood Products Inc. The case is styled as James Dean, individually and behalf of all others similarly situated v. Hoover Treated Wood Products Inc., Case No. 4:22-cv-00810-BSM (E.D. Ark., Sept. 7, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act for Denial of Overtime Compensation. Hoover -- https://www.frtw.com/ -- is a fast growing company with room for upward mobility offering Pyro-Guard and Exterior Fire-X fire retardant lumber and plywood.[BN] The Plaintiffs are represented by: Christopher Wesley Burks, Esq. Stewart Alexander Whaley, Esq. WH LAW 1 Riverfront Place, Suite 745 North Little Rock, AR 72114 Phone: (501) 891-6000 Email: chris@whlawoffices.com stewart@whlawoffices.com HQ-PACK INC: Kampa Sues Over Unpaid Overtime Compensation --------------------------------------------------------- Erik Kampa, on behalf of himself and all others similarly situated v. HQ-PACK, INC., Case No. 2:22-cv-01019-WED (E.D. Wis., Sept. 6, 2022), is brought pursuant to the Fair Labor Standards Act of 1938 and the Wisconsin's Wage Payment and Collection Laws for purposes of obtaining relief under the FLSA and WWPCL for unpaid overtime compensation, liquidated damages, costs, attorneys' fees, declaratory and/or injunctive relief, and/or any such other relief the Court may deem appropriate. The Defendant operated an unlawful compensation system that deprived and failed to compensate the Plaintiff and all other current and former employees for all hours worked and work performed each workweek, including at an overtime rate of pay for each hour worked in excess of 40 hours in a workweek, by misclassifying non-exempt employees in positions such as Manager, Assistant Manager, and/or other similarly-titled positions as salaried-exempt when, in reality, said employees performed non-exempt job duties each work day and each workweek and were entitled overtime rate of pay for each hour worked in excess of 40 hours in a workweek, in violation of the FLSA and WWPCL, says the complaint. The Plaintiff was hired by the Defendant into the position of Assistant Manager working at the Defendant's Brookfield, Wisconsin location. HQ-Pack, Inc., is an Indiana-based company doing business in the State of Wisconsin.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Phone: (262) 780-1953 Fax: (262) 565-6469 Email: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com HUDSON GOLF: Post Files Suit in Mass. Super. Ct. ------------------------------------------------ A class action lawsuit has been filed against Hudson Golf LLC. The case is styled as Anthony Post, individually on behalf of all others similarly situated v. Hudson Golf LLC doing business as Charter Oak County Club, Case No. 2284CV02034 (Mass. Super. Ct., Suffolk Cty., Sept. 6, 2022). The case type is stated as "Contract/Business Cases." Hudson Golf LLC doing business as Charter Oak Country Club -- https://www.charteroakcc.com/ -- is a private 18-hole golf course in Hudson, Massachusetts, offering an Olympic-size pool, jacuzzi, baby pool, fitness facility, restaurants and an elegant ballroom for weddings & events.[BN] The Plaintiff is represented by: Robert E. Mazow, Esq. MAZOW AND MCCULLOUGH, PC 10 Derby Square 4th Floor Salem, MA 01970 HUT AMERICAN: Fails to Pay Proper Wages, Wood Suit Alleges ---------------------------------------------------------- RICKY WOOD, individually and on behalf of all others similarly situated, Plaintiff v. HUT AMERICAN GROUP LLC; FLYNN RESTAURANT GROUP LP; JEREMY BISER; GREG FLYNN; RON BELLAMY; Defendants, Case No. 2:22-cv-00110 (E.D. Tenn., Sept. 14, 2022) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Wood was employed by the Defendants as delivery driver. HUT AMERICAN GROUP LLC owns and operates restaurants. The Company offers prepared foods and drinks for on-premise consumption. [BN] The Plaintiff is represented by: David W. Garrison, Esq. Joshua A. Frank, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Philips Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 Email: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com - and - Andrew R. Biller, Esq. Andrew P. Kimble, Esq. Riley E. Kane, Esq. BILLER & KIMBLE, LLC 8044 Montgomery Road, Suite 515 Cincinnati, OH 45236 Telephone: (513) 202-0710 Facsimile: (614) 340-4620 Email: abiller@billerkimble.com akimble@billerkimble.com rkane@billerkimble.com LA CASA: Bonilla Labor Suit Removed to S.D. Fla. ------------------------------------------------ The case styled VERONICA BONILLA, IZAMAR GUADAMUZ and all others similarly situated under 29 U.S.C. 216(b), Plaintiffs v. LA CASA DE LOS TRUCOS, INC., CARMEN TORRES and JORGE TORRES, Defendants, Case No. 2022-014093-CA-01, was removed from the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County Florida, to the U.S. District Court for the Southern District of Florida on Sept. 6, 2022. The Clerk of Court for the Southern District of Florida assigned Case No. 1:22-cv-22820-BB to the proceeding. The complaint raises claims against Defendants for unpaid overtime wages in violation of the Fair Labor Standards Act. La Casa De Los Trucos, Inc. is a costume store in Miami, Florida.[BN] The Defendants are represented by: Rodolfo Gomez, Esq. Elizabeth M. Rodriguez, Esq. FORDHARRISON LLP One S.E. 3rd Avenue, Suite 2130 Miami, FL 33131 Telephone: (305) 808-2143 Facsimile: (305) 808-2101 E-mail: rgomez@fordharrison.com erodriguez@fordharrison.com LIFEVANTAGE CORP: Court Denies Smith's Class Cert. Bid; Stays Case ------------------------------------------------------------------ Lifevantage Corporation disclosed in its Form 10-K Annual Report for the fiscal year ended June 30, 2022, filed with the Securities and Exchange Commission on August 23, 2022, that the court issued an order denying the Plaintiff's motion for class certification in the case captioned Smith v. LifeVantage, and the case is currently stayed until September 23, 2022. On January 24, 2018, a purported class action was filed in the United States District Court for the District of Connecticut, entitled Smith v. LifeVantage Corp., Case No. 3:18-cv-a35 (D. Connecticut filed Jan. 24, 2018). In this action, Plaintiffs alleged that the Company, its Chief Executive Officer, Chief Sales Officer and Chief Marketing Officer operated a pyramid scheme in violation of a variety of federal and state statutes, including RICO and the Connecticut Unfair Trade Practices Act. On April 16, 2018, the Company filed motions with the court to dismiss the complaint against LifeVantage, dismiss the complaint against the Company's executives, transfer the venue of the case from the State of Connecticut to the State of Utah, and contest class certification. On July 23, 2018, the parties filed a stipulation with the Court agreeing to transfer the case to the Federal District Court for Utah. On September 20, 2018, Plaintiffs filed an amended complaint in Utah. As per the parties stipulated agreement, Plaintiffs' amended complaint dropped the RICO and Connecticut state law claims and removed the Company's Chief Sales Officer and Chief Marketing Officer as individual defendants (the former Chief Executive Officer remains a defendant in the case). The Plaintiffs' amended complaint added an antitrust claim, alleging that the Company fraudulently obtained patents for its products and is attempting to use those patents in an anti-competitive manner. The Company filed a Motion to Dismiss the amended complaint on November 5, 2018, Plaintiffs filed a response to the Company's Motion to Dismiss on December 17, 2018, and the Company filed a reply brief on January 10, 2019. The Court ruled on the motion on December 5, 2019, dismissing three of the Plaintiff's four claims, including the antitrust claim, unjust enrichment claim, and the securities claim for the sale of unregistered securities. On December 19, 2019, Plaintiffs filed a second amended complaint which included three causes of action, including a 10(b)(5) securities fraud claim, and renewed claims relating to the sale of unregistered securities and unjust enrichment. LifeVantage filed a Motion to Dismiss the Second Amended Complaint on January 28, 2020, and with the Motion fully briefed by the parties as of March 17, 2020, the Court decided the matter on the parties' briefs only on November 25, 2020. In its decision, the Court dismissed with prejudice the Plaintiffs' Section 12(1) claim (sale of an unregistered security), because the Court concluded the claim is time barred. The Court also dismissed the Plaintiffs' claim for unjust enrichment against LifeVantage without prejudice, and the Plaintiffs did not amend their complaint following the Court's order to re-plead unjust enrichment. The court found that the Plaintiffs had sufficiently pled their claim under Section 12(2) (offer to sell a security that misstates or omits a material fact by means of a prospectus or oral communication). LifeVantage filed its Answer to the Second Amended Complaint on December 23, 2020, responding to the Plaintiffs' remaining securities claims. On February 2, 2021, the Court issued an amended scheduling order that reflects the parties' agreement on a schedule for discovery and other litigation matters. On June 15, 2021, the plaintiffs filed their motion for class certification, and on July 13, 2021, the defendants, including LifeVantage Corporation, filed their opposition brief that opposed class certification. On July 27, 2021, the Plaintiffs filed their reply to the Company's opposition brief. The court held a hearing for the motion for class certification on March 28, 2022. On April 19, 2022, the court issued an order denying the Plaintiff's motion for class certification. The case has been stayed by the Court as of June 24, 2022 and is currently stayed until September 23, 2022. The Company has not established a loss contingency accrual for this lawsuit as it believes liability is not probable or estimable, and the Company plans to vigorously defend against this lawsuit. Nonetheless, an unfavorable resolution of this matter could have a material adverse effect on the Company's business, results of operations or financial condition. LifeVantage Corporation engages in the identification, research, development, and distribution of nutraceutical dietary supplements and skincare products. The company sells its products through a direct sales model, as well as a network of independent distributors in the United States, Japan, Hong Kong, Australia, Canada, Mexico, Thailand, the United Kingdom, the Netherlands, Germany, Spain, and Taiwan. LifeVantage Corporation is headquartered in Sandy, Utah. MASSACHUSETTS INTERSCHOLASTIC: Jones Suit Removed to D. Mass. ------------------------------------------------------------- The case styled SARAH JONES, as guardian, parent, and next friend of her minor child "Jimmy," Plaintiff v. MASSACHUSETTS INTERSCHOLASTIC ATHLETIC ASSOCIATION, Defendant, Case No. 2282CV00775, was removed from the Massachusetts Superior Court for Norfolk County, to the U.S. District Court for the District of Massachusetts on Sept. 6, 2022. The Clerk of Court for the District of Massachusetts assigned Case No. 1:22-cv-11426-AK to the proceeding. In this complaint, the Plaintiff repeatedly asserts claims based on his equal protection rights under the Fourteenth Amendment to the U.S. Constitution. The Massachusetts Interscholastic Athletic Association is an organization that sponsors activities in thirty-three sports, comprising 374 public and private high schools in the U.S. state of Massachusetts.[BN] The Defendant is represented by: Kay H. Hodge, Esq. John M. Simon, Esq. Justin R. Gomes, Esq. STONEMAN, CHANDLER & MILLER, LLP 99 High Street Boston, MA 02110 Telephone: (617) 542-6789 E-mail: khodge@scmllp.com jsimon@scmllp.com jgomes@scmllp.com MDL 2913: Lander Cty. School Files Suit Over E-Cigarette Crisis --------------------------------------------------------------- Lander County School District, on behalf of itself and all others similarly situated, Plaintiff v. JUUL Labs, Inc., et al., Defendants, Case No. 3:22-cv-05054 (N.D. Cal., Sept. 6, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. The complaint alleges that JLI, the investors and board members, who include Nicholas Pritzker, Riaz Valani, and Hoyoung Huh, referred as the Management Defendants, and Altria Group, Inc. worked together to implement their shared goal of growing a youth market in the image of the combustible cigarette market through a multi-pronged strategy to: (1) create an highly addictive product that users would not associate with cigarettes and that would appeal to the lucrative youth market, (2) deceive the public into thinking the product was a fun and safe alternative to cigarettes that would also help smokers quit, (3) actively attract young users through targeted marketing, and (4) use a variety of tools, including false and deceptive statements to the public and regulators, to delay regulation of e-cigarettes. As alleged in the complaint, each of the Defendants played a critical role -- at times overlapping and varying over time -- in each of these strategies, says the suit. Under the leadership of the Management Defendants, JLI marketed nicotine to kids. JLI and the Management Defendants deployed a sophisticated viral marketing campaign that strategically laced social media with false and misleading messages to ensure their uptake and distribution among young users. JLI and the Management Defendants' campaign was wildly successful -- burying their hook into kids and initiating a public health crisis, added the suit. The Lander County School District case has been consolidated in MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon. Judge William H. Orrick. Lander County School District is a public school district with its office in Battle Mountain, Nevada. 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.[BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com MDL 2913: Sevier Cty. School System Sues Over E-Cigarette Crisis ---------------------------------------------------------------- Sevier County School System, on behalf of itself and all others similarly situated, Plaintiff v. JUUL Labs, Inc., et al., Defendants, 3:22-cv-05055 (N.D. Cal., Sept. 6, 2022) is a class action against the Defendants for negligence, gross negligence, and violations of the Public Nuisance Law and the Racketeer Influenced and Corrupt Organizations Act. The complaint alleges that JLI, the investors and board members, who include Nicholas Pritzker, Riaz Valani, and Hoyoung Huh, referred as the Management Defendants, and Altria Group, Inc. worked together to implement their shared goal of growing a youth market in the image of the combustible cigarette market through a multi-pronged strategy to: (1) create an highly addictive product that users would not associate with cigarettes and that would appeal to the lucrative youth market, (2) deceive the public into thinking the product was a fun and safe alternative to cigarettes that would also help smokers quit, (3) actively attract young users through targeted marketing, and (4) use a variety of tools, including false and deceptive statements to the public and regulators, to delay regulation of e-cigarettes. As alleged in the complaint, each of the Defendants played a critical role -- at times overlapping and varying over time -- in each of these strategies, says the suit. Under the leadership of the Management Defendants, JLI marketed nicotine to kids. JLI and the Management Defendants deployed a sophisticated viral marketing campaign that strategically laced social media with false and misleading messages to ensure their uptake and distribution among young users. JLI and the Management Defendants' campaign was wildly successful -- burying their hook into kids and initiating a public health crisis, added the suit. The Sevier County School System case has been consolidated in MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon. Judge William H. Orrick. Sevier County School System is a public school district with its office in Sevierville, Tennessee. 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.[BN] The Plaintiff is represented by: James Frantz, Esq. William B. Shinoff, Esq. FRANTZ LAW GROUP, APLC 402 W. Broadway, Ste. 860 San Diego, CA 92101 Telephone: (619) 233-5945 Facsimile: (619) 525-7672 E-mail: jpf@frantzlawgroup.com wshinoff@frantzlawgroup.com NEW YORK, NY: Faces Suit Over Illegal Racketeering Enterprise ------------------------------------------------------------- Matthew Sedacca and Rich Calder at nypost.com reports that the city turned a blind eye for years while a Queen's tow company monopolized services on many Big Apple highways and ripped off thousands of drivers in the process, a bombshell new lawsuit alleges. The class-action suit, filed in Manhattan Supreme Court, seeks more than $58 million in damages for the duped motorists from the NYPD, the city Department of Consumer and Worker Protection and Runway Towing Corp. It alleges city officials let the company run an illegal "racketeering enterprise" at the expense of unsuspecting motorists. The suit also accuses the NYPD of repeatedly extending Runway's contract since 2013 without competitive bidding and, in the process, ignoring many complaints the Department of Consumer and Worker Protection was getting about the company's alleged lawbreaking, which included underpaying workers and illegally compensating them with cash off the books. The two city agencies "conspired . . . to allow Runway to operate . . . even though at least six years ago motorists were telling them that Runway is overcharging consumers," said lawyer Gary Rosen, who represents Runway customers and ex-staffers in the lawsuit. The suit claims Runway has earned more than $200 million since 2010 off its NYPD contract to provide roadside assistance and towing services on the Brooklyn-Queens Expressway; Kosciusko Bridge; the Cross Island Parkway in Queens; sections of the Belt Parkway in Brooklyn and Queens; Brooklyn's Gowanus Expressway and Prospect Expressway; and the Staten Island Expressway, West Shore Expressway, Korean War Veterans Parkway and Dr. Martin Luther King Jr. Expressway on Staten Island. It also alleges the company relies on shady practices to drive up its profits, including instructing tow operators to bring vehicles they pick up to the company's office in Ozone Park - no matter where they break down. It's a move that generates hundreds, and sometimes thousands, of extra dollars in unnecessary towing and storage costs for the public per vehicle, former Runway workers and customers told The Post. Mary Olsen, 62, said she had no choice but to give away her 2000 Nissan Altima to Runway after it was rear-ended and totaled on the Staten Island Expressway two years back. She said a Runway tow truck brought the car to the Ozone Park storage facility more than 20 miles away without her consent - and without providing a cheaper option, such as towing it to a parking space off the nearest exit or a nearby auto body shop. [GN] OHIO: Poffenbarger v. Kendall Stayed Pending Doster Suit Resolution ------------------------------------------------------------------- In the case, MICHAEL POFFENBARGER, Plaintiff v. Hon. FRANK KENDALL, et al., Defendants, Case No. 3:22-cv-1 (S.D. Ohio), Judge Thomas M. Rose of the U.S. District Court for the Southern District of Ohio, Western Division, grants the Plaintiff's Motion to Stay this Matter Pending Resolution of Issues in Doster v. Kendall, No. 1:22-CV-84. Mr. Poffenbarger filed the present action on Jan. 2, 2022, seeking to redress the Government's alleged violation of his rights under the Religious Freedom Restoration Act ("RFRA") and the Free Exercise Clause of the First Amendment. He also sought a temporary restraining order and a preliminary injunction. The Court denied the temporary restraining order, but subsequently granted the preliminary injunction on Feb. 28, 2022. On Feb. 16, 2022, 18 plaintiffs filed a complaint in the U.S. District Court for the Southern District of Ohio at Cincinnati -- Doster. Like Poffenbarger, the plaintiffs in the Doster case have an affiliation with either the United States Air Force or the United States Space Force, and both Poffenbarger and the plaintiffs in Doster are represented by the same attorneys. The claims in Doster and in the present case are the same (violation of the RFRA and violation of the First Amendment), although at least some of the relief requested is different. In Doster, on March 31, 2022, the Court granted in part and denied in part the Plaintiffs' Motion for Preliminary Injunction. On May 27, 2022, the Government filed an appeal of that preliminary injunction order. On July 14, 2022, the court in Doster granted the Plaintiffs' motion to certify a class. It found that the plaintiffs "have satisfied the Rule 23(a) prerequisites, as well as Rule 23(b)(1)(a) and Rule 23(b)(2)." On July 27, 2022, the court in Doster granted a class-wide preliminary injunction that also modified the parameters of the class. In part, the Doster court added the ability to opt out of the class. On Aug. 15, 2022, the Government filed a notice of appeal, appealing the class certification order and the class-wide preliminary injunction. In the present case, on Aug. 5, 2022, the Court held a telephonic status conference with the parties. The Court and the parties discussed the status of the case in light of recent orders entered in Doster. Significantly, the parties agreed during the August 5 status conference that Poffenbarger is a member of the Doster class. On Aug. 8, 2022, Poffenbarger filed the present Motion. In the Motion, he argues that the case should be stayed until the appeal rights as to the class-wide injunction and class certification orders have been exhausted. On Aug. 29, 2022, the Government filed its response. In its response the Government argues that the matter should be dismissed because it is duplicative of the Doster action and Poffenbarger should not be permitted "a second bite of the apple." In the alternative, it argues that the stay should only remain in effect until the Sixth Circuit Court of Appeals delivers its decision on its emergency stay of the class-wide injunction in Doster. Poffenbarger filed his reply on Aug. 31, 2022. In the interest of judicial economy and avoiding potentially duplicative litigation and conflicting results, Judge Rose temporarily stays the case. He says, given the complications currently presented by Poffenbarger being a party in two concurrent, similar cases, and the pending appeal of the order granting class certification in the other case, he stays the case until (unless otherwise ordered) there has been an exhaustion of all appeal rights concerning the decision in Doster to grant class certification, at which time the Court will re-examine whether the case should continue to be stayed. He further orders the parties to file a status report within seven days of the Sixth Circuit Court of Appeal's decision on the emergency stay of the class injunction order in Doster. A full-text copy of the Court's Sept. 2, 2022 Entry & Order is available at https://tinyurl.com/2ra5w98c from Leagle.com. PALANTIR TECHNOLOGIES: Lead Plaintiff Appointment Due Nov. 14 ------------------------------------------------------------- Gainey McKenna & Egleston announces that a class action lawsuit has been filed against Palantir Technologies Inc. ("Palantir" or the "Company") (NYSE: PLTR) in the United States District Court for the District of Colorado on behalf of investors who purchased or otherwise acquired Palantir's common stock between November 9, 2021 and May 6, 2022, both dates inclusive (the "Class Period"). The Complaint allege that Defendants made false and/or misleading statements and/or failed to disclose that: (1) Palantir's investments in marketable securities were having a significant negative impact on the Company's earnings per share ("EPS") results; (2) Palantir overstated the sustainability of its government segment's growth and revenues; (3) Palantir was experiencing a significant slowdown in revenue growth, particularly among its government customers, despite ongoing global conflicts and market disruptions; (4) as a result of all the foregoing, the Company was likely to miss consensus estimates for its first quarter 2022 ("Q1") EPS and second quarter 2022 ("Q2") sales outlook; and (5) as a result, the Company's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. Investors who purchased or otherwise acquired shares of Palantir's should contact the Firm prior to the November 14, 2022 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] PALO ALTO, CA: Reaches Tentative Settlement Over Overcharges Suit ----------------------------------------------------------------- Braden Cartwright at Daily Post reports that the city of Palo Alto has reached a tentative settlement agreement with a resident who filed a class-action lawsuit on behalf of the city's utilities customers, who she alleged were being overcharged on their natural gas bills over the course of eight years. The city has agreed to pay $17.3 million to natural gas customers and lawyers for Miriam Green so that she will drop her lawsuit. The average Palo Alto resident should see a few hundred dollars, depending on how much natural gas they've used since September 2015, when Green's challenge began. Current customers would get their refunds as a credit on their bills, and former customers would get a check. The refund would come in three parts: after the settlement is signed, then one year and two years after that. Customers who are over the age of 65 or are in ill health may ask for their refunds in a lump sum check rather than an on-bill credit, the tentative settlement agreement says. Green sued the city in October 2016 after she saw that the city was transferring profits from natural gas bills to the city's General Fund, where the money was spent on unrelated city projects. State law says that the natural gas rates must match the cost of natural gas service, and anything more is a tax that needs voter approval. Santa Clara County Superior Court Judge Brian Walsh ruled the law applied to Palo Alto, and that the city's transfer of profits was an unapproved and illegal tax. Walsh ordered the city to pay $12.6 million for overcharges between 2015 and 2019, and he left the door open for another $5 million in refunds for overcharges from 2019 to today. The city appealed his ruling, and a mediator was appointed to help the two sides reach an agreement. Green's challenge was unprecedented, and the case had the potential to go all the way to the Supreme Court to rule on how it should be resolved. But the city agreed on the settlement just before asking voters on Nov. 7 to approve the transfer of natural gas revenue, allowing the practice to continue legally. A question about profits The city is arguing the transfer is appropriate, because it's a return on the city's investment for building a natural gas system decades ago. While companies like PG&E give profits to shareholders, the city spends profits on public services, the ballot argument says. The benefit of the settlement is that the city will provide refunds to customers more quickly than if the lawsuit continued, City Attorney Molly Stump said. The delay would be considerable if the case went to the Supreme Court, the settlement says. The agreement must go through two steps. First, the Court of Appeal would reverse Walsh's decision that the transfer is illegal. Then, the trial court would approve the class-action settlement. The court hasn't told the city when these steps might take place, City Attorney Molly Stump said. How much could you get? Up to 25% of the $17.3 settlement fund could go to Green's lawyers and the city won't challenge it. And the fund will also be used to pay a settlement administrator. That leaves less than $13 million for natural gas customers. The city had 23,770 residential and commercial customers in 2020, so the average customer could get as much as $546. But many customers have come and gone over the eight years, and they would get a refund too. So the exact refund amount will depend on how many people will get a piece of the pie, and how much natural gas everyone has used. The city will have 60 days from when the agreement is signed to tell the settlement administrator the number of people who will get a refund, and how much money they will get per therm of natural gas that they used.This story appeared originally in print edition of the Daily Post. If you want to read important local stories first, pick up the Post in the mornings at 1,000 Mid-Peninsula locations. [GN] PERRIGO CO: Overstates Baby Formula Yield, Frederick Suit Claims ---------------------------------------------------------------- CHELSEA FREDERICK, on behalf of herself, all others similarly situated, and the general public, Plaintiff v. PERRIGO COMPANY, Defendant, Case No. 3:22-cv-01333-L-WVG (S.D. Cal., Sept. 6, 2022) is a class action against the Defendant for violations of the California Consumers Legal Remedies Act, and the False Advertising Law, the Unfair Competition Law, for breach of express warranty, breach of implied warranty of merchantability, intentional misrepresentation, negligent misrepresentation, and unjust enrichment. According to the complaint, Perrigo is the manufacturer and seller of Burt's Bees Infant Formulas, which it represents make a certain number of bottles. However, following the instructions on the label results in fewer bottles than Perrigo promises, short-selling the consumer. For example, the 34 oz. Ultra Gentle label says that it "Makes 63 4 Fl Oz Bottles." That representation is false, however, because following the back-label "FEEDING CHART," which explains how to make a "4 fl oz bottle," yields only 56 4-oz. bottles -- not 63 (a nearly 12% difference). The Plaintiff brings this action to enjoin Perrigo from continuing to falsely advertise the Burt's Bees Formulas in this manner, and to recover restitution and damages for herself and other purchasers, says the suit. Perrigo Company engages in providing over-the-counter (OTC) self-care and wellness solutions.[BN] The Plaintiff is represented by: Jack Fitzgerald, Esq. Paul K. Joseph, Esq. Melanie Persinger, Esq. Trevor M. Flynn, Esq. Caroline S. Emhardt, Esq. FITZGERALD JOSEPH LLP 2341 Jefferson Street, Suite 200 San Diego, CA 92110 Telephone: (619) 215-1741 E-mail: jack@fitzgeraldjoseph.com paul@fitzgeraldjoseph.com melanie@fitzgeraldjoseph.com trevor@fitzgeraldjoseph.com caroline@fitzgeraldjoseph.com S&P DATA OHIO: Gresham Sues Over Unpaid Wages and Overtime Premiums ------------------------------------------------------------------- Jonetta Gresham, individually and on behalf of all similarly situated individuals v. S&P DATA OHIO, LLC, Case No. 1:22-cv-01622 (N.D. Ohio, Sept. 13, 2022), is brought to recover an award of unpaid wages and overtime premiums, liquidated damages, penalties, injunctive and declaratory relief, attorneys' fees and costs, pre- and post-judgment interest, and any other remedies to which she and the putative Classes may be entitled and for the Defendant's willful violations of the Fair Labor Standards Act, violations of the Ohio Minimum Fair Wage Standards, the Ohio Prompt Pay Act, the Ohio Wage Act, (will be collectively referred to as the "Ohio Acts"). Throughout the Plaintiff's employment with the Defendant, the Plaintiff regularly worked at least 40 hours per workweek. Regardless of whether the Defendant scheduled the Plaintiff to work a workweek totaling under 40 hours, a workweek totaling 40 hours, or a workweek totaling in excess of 40 hours, the Plaintiff regularly worked a substantial amount of time off-the-clock as part of her job duties as a CSR. The Defendant never compensated the Plaintiff for this necessary time worked off-the-clock, says the complaint. The Plaintiff worked for the Defendant as a Customer Service Representative from February 2019 to August 2021. The Defendant operates a customer service call center location and employs remote customer service employees in Ohio.[BN] The Plaintiff is represented by: Robert E. DeRose, Esq. BARKAN MEIZLISH DEROSE COX, LLP 4200 Regent Street, Suite 210 Columbus, OH 43219 Phone: 614-221-4221 Fax: 614-744-2300 Email: bderose@barkanmeizlish.com - and - Jacob R. Rusch, Esq. Zackary S. Kaylor, Esq. JOHNSON BECKER, PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Phone: 612-436-1800 Fax: 612-436-1801 Email: jrusch@johnsonbecker.com zkaylor@johnsonbecker.com SAMSUNG ELECTRONICS: May Face Suit Over Defective Smartphones ------------------------------------------------------------- Alan Friedman at phonearena.com reports that Samsung could end up as the defendant in a class action suit being contemplated in Poland by some consumers in the country who bought phones in the Galaxy Z Fold and Galaxy Z Flip series. 1,100 of these unhappy customers have posted their complaints on Facebook, according to SamMobile. Galaxy Z Fold and Flip customers in Poland have been complaining about the deterioration of the protective film. One of the major problems that these customers are having is the deterioration of the protective film on top of the foldable display. The breakdown of this covering can happen over time. The second issue, which is in large part related to the first one, is that Sammy's repair centers in the country aren't eager to fix the problem with the protective film unless pressured to do so through social media posts. The report notes that in the Netherlands, similar problems have taken place with the Galaxy Z Fold and Flip units. And if you can find a Samsung repair center willing to fix your device, it could take days for the repair to be made. Hope you can handle that period of time without having a phone because Samsung will not offer you a replacement in that country. Oh, did we tell you that you also have to wipe the data off of your foldable before having it repaired by Samsung? That might not be unusual punishment, but it is cruel. Samsung says that in Poland, if the protective film starts to detach from the foldable display or is damaged, "we ask customers to immediately go to one of our authorized service centers and replace it free of charge under and during the warranty period." But this isn't always the case as some Galaxy Z Fold and Flip owners have been turned down for a free repair. Part of the problem is that buyers of the earlier Galaxy Z Fold and Galaxy Z Flip models have had their one-year warranty lapse leaving them with an expensive phone that they spent more than $1,000 for (nearly $2,000 in some cases) falling apart. The report also notes that even those who managed to get a free repair from Samsung were left with a bad taste in their mouths and are looking to unload their foldable. For many of these customers, a new foldable is out of the question and Samsung shouldn't count on them remaining loyal to the brand. Samsung wants half of its smartphone revenues to come from foldables by 2025. It's hard to say whether that is an overly ambitious or reasonable goal. Pricing is one issue that will need to get resolved because at current prices, thinking of foldables as being mainstream seems out of the question. Samsung's development of a lower-priced Galaxy A version of the Fold and Flip will be a big help in this quest. Here is what we expect Samsung to do if it becomes a defendant in a class action suit about the Fold and Flip The other major problem is durability. As for those unlucky Galaxy Z Fold and Flip owners in Poland, they will have to decide whether or not to proceed with a class action suit. These can take years to resolve and often the amount paid to each member of the class is a mere pittance. In fact, among those involved in such a legal action, typically it is only the lawyers involved that get paid anything substantial. More likely is the possibility that Samsung reaches a settlement with these Fold and Flip owners in Poland. Such an agreement would probably lead Samsung to issue coupons to the plaintiffs giving them a small, token discount on the latest Galaxy Z Fold 4 and Galaxy Z Flip 4. Members of the class will still have the option to opt-out of a settlement if they want to continue to pursue a legal remedy on their own dime. [GN] SANTA FE NATURAL: Faces Class Action Over Mislabeled Cigarettes --------------------------------------------------------------- Marketed as a "100 additive-free natural tobacco" product, the cigarette brand Natural American Spirit has misled its customers into believing the product is a safer alternative to other cigarettes. The Food and Drug Administration (FDA) warned the manufacturer, Santa Fe Natural Tobacco Company, Inc., that descriptors such as "additive free," "natural," or "organic" imply that the products present a lower risk of tobacco-related diseases or are less harmful than other products on the market. Unfortunately, this is simply untrue. American Spirit cigarettes are just as dangerous any others. The FDA's regulations require companies marketing a "modified risk tobacco product" to follow a strict procedure, including filing an application that is backed with scientific proof of its reduced risk. However, Natural American Spirit has failed to follow these guidelines, deceiving consumers and putting them at risk. The FDA has warned Santa Fe Natural Tobacco about its deceptive marketing, stating that the advertising is misleading to consumers. A federal class action lawsuit has been filed against Santa Fe Natural Tobacco company upon learning about its marketing tactics. The cigarette was first sold under the name Original American Spirit. If you purchased American Spirit or Original American Spirit cigarettes based on the deceptive labeling, you may qualify for the class action lawsuit. This lawsuit is based upon claims of deceptive advertising rather than physical injuries and includes all consumers who purchased a pack from the date of issue until at least August 27, 2015. [GN] SEALY INC: Class Cert. Denial & Judgment in Sarmiento Suit Upheld ----------------------------------------------------------------- In the case, JESUS SARMIENTO, et al., Plaintiffs-Appellants v. SEALY, INC., et al., Defendants-Appellees, Case No. 21-16562 (9th Cir.), the Court of Appeals for the Ninth Circuit affirms the district court's denial of class certification and grant of summary judgment to Defendants Sealy, Inc., and Sealy Mattress Manufacturing Company, LLC. Individual Plaintiffs Jesus Sarmiento and Juan Chavez appeal from the district court's denial of class certification and grant of summary judgment to the Defendants. They contend that the Defendants' employee payment practices during the course of their employment violated the applicable collective bargaining agreement. The Plaintiffs challenge only the district court's conclusion that they lack standing to assert a violation of Cal. Lab. Code Section 226(a)(8) on the ground that their wage statements improperly listed Sealy, Inc., as their employer. The Ninth Circuit says standing is the threshold issue in any suit. If the individual plaintiff lacks standing, the court need never reach the class action issue. Plaintiffs bear the burden of showing that the Article III standing requirements are met. It finds that the Plaintiffs fail to satisfy the "injury in fact" requirement of Article III standing. They do not allege or identify any harm resulting from the allegedly improper listing of Sealy, Inc., on their wage statements. Thus, they lack Article III standing, and the district court did not abuse its discretion in denying certification of the corresponding class. Because the Defendants are the moving party and do not bear the ultimate burden of persuasion at trial, they have "both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment." To carry their burden of persuasion, the Defendants "must persuade the court that there is no genuine issue of material fact." If the Defendants carry their burden of production, the Plaintiffs must produce evidence to support their claim, and they must "identify with reasonable particularity the evidence that precludes summary judgment." If the Plaintiffs fail to make this showing, then the Defendants are entitled to summary judgment. The Plaintiffs argue that the district court applied the incorrect burden of production in analyzing their claims arising under Cal. Lab. Code Section 222 and 223. The Ninth Circuit says these provisions make it unlawful for an employer to willfully withhold wages or pay secret wages, respectively. The Defendants carried their burden by showing that the Plaintiffs lacked evidence of willful or secret wage deductions. At that point, the burden shifted to the Plaintiffs to produce or identify evidence of willful or secret wage deduction. The district court granted summary judgment to Defendants on these claims based on the Plaintiffs' failure to do so. It did not err in granting summary judgment on these claims on this basis. The Plaintiffs argue that the district court applied the incorrect burden of production in analyzing their claims under Cal. Lab. Code Sections 201-203. These provisions penalize an employer who willfully fails to timely pay employees at the time of discharge. The Ninth Circuit finds that the Defendants carried their burden by showing that the Plaintiffs lacked any evidence that a failure by the Defendants to timely pay them was willful. The district court granted the Defendants' motion based on the Plaintiffs' failure to do so. It did not err in granting summary judgment on these claims on this basis. Finally, the Plaintiffs argue that the district court erred in granting summary judgment to the Defendants on their claim under Cal. Lab. Code Sections 226(a)(8) and their derivative claim under the Private Attorneys' General Act ("PAGA"), Cal. Lab. Code Sections 2698-2699.6. The district court granted summary judgment to the Defendants on the ground that the Plaintiffs lack Article III standing to assert the claim under Section 226(a)(8). For the reasons discussed, the Ninth Circuit rules that the Plaintiffs lack standing to assert this claim as individuals. Because the Plaintiffs lack standing to assert this claim as individuals, they also lack standing to assert their derivative PAGA claim. The district court did not err in so holding. A full-text copy of the Court's Sept. 2, 2022 Memorandum is available at https://tinyurl.com/2p8647z2 from Leagle.com. SECURIX LLC: Uses Traffic Cameras to Scan Car Insurance, Suit Says ------------------------------------------------------------------ Kayode Crown at mississippifreepress.org reports that Amy Divine, a Madison, Miss., resident, opened a mail envelope on July 1, 2022, and discovered an official-looking ticket from the Ocean Springs Police Department claiming she owned a vehicle that passed through the city on March 22, 2022, "without vehicle insurance." The letter, dated April 4, 2022, indicated that it was a "Final Notice Before Court Appearance" and included Ocean Springs Police Chief Mark Dunston's signature. It indicated that Divine could pay $300 to avoid a driver's license suspension. She paid the money. Divine's attorneys, Brian K. Herrington and Rogen K. Chhabra, from Chhabra Gibbs & Herrington PLLC, are disputing the practice's legitimacy. In a court filing in the U.S. Southern District of Mississippi on Sept. 1, 2022, they argue that the ticket did not come from the City but from a business named Securix, "pretending to be law enforcement" and using cameras "to enforce traffic laws." The plaintiff alleges that Mississippi Statute prohibits using cameras in traffic law enforcement. American Digital Security, LLC, finalized a deal to acquire Securix companies in December 2021. Securix has continued to operate by that name, the lawsuit says. Both companies are defendants in the case. American Digital Security, LLC, did not respond to an email request on Sept. 12, 2022, for comment. Technology Use Started in 2019 This reporter called Securix on Sept. 12, 2022, and the receptionist linked him with Jonathan Miller. "He is the manager, the owner," the receptionist said. In the Monday interview, Miller told the Mississippi Free Press, "I am just one of the officers of the company," while explaining that "there is no basis for the lawsuit whatsoever." Documents on the Mississippi Secretary of State's website show Miller as the registered agent and partner with Michael E. McGrey of Securix LLP, which registered in Mississippi in September 2021. The company was formed in 2018 and incorporated in Delaware, with a principal office address in Atlanta, Ga., the Mississippi Secretary of State's website shows. The plaintiff is also suing Missouri-based Securix LLC. A 2019 press release announcing Securix's adoption of new technology in its operation described Miller as the CEO and Securix as "owner of the twenty-seven state-based Public Safety Companies in the U.S." "SECURIX's use of the LPR-2 (license plate readers) will mark the first time REKOR products will be utilized in the detection of uninsured vehicles, a huge and growing problem in the U.S. which is otherwise rarely detected," the report said. "In addition to providing a complete solution to the uninsured vehicle problem in the U.S., SECURIX also enhances officer safety and efficiency, is violator-funded with no cost to agencies, is entirely non-invasive and respectful and, enables governments to recover revenues to enable other worthwhile community programs." The plaintiff is making "a huge mistake," Miller said in the interview with the Mississippi Free Press. "Everything they've said in the lawsuit is nonsense; there is no basis in law for the lawsuit at all," he added. "The people involved don't know what they're saying, they don't know what they're doing. Everything they said is wrong." "That's the only statement I'm going to make, and I think that the lawsuit will get resolved very quickly because, again, everything they said is wrong. Everything!" Lawyers Seek Class Action Attorneys Herrington and Chhabra shared a different view and asked the court to "certify the case as a class action." "Defendant tickets the registered owner of the vehicle without regard to who was driving and with no analysis on whether the driver was lawfully insured," they wrote in the complaint. Securix, on its website, explained that it offers a system that provides "a complete solution to the uninsured vehicle problem in the U.S. but also enhances officer safety and efficiency, has no cost to agencies and yet, enables governments to recover revenues and enable worthwhile programs," the company said. "All other systems have only unreliable data or are limited to a single state or insurer." "SECURIX's InsureNet System, (National Vehicle Insurance Status System), was developed to provide a full-featured, complete solution to the massive problems involving uninsured vehicles." it added. "Its focus is on solving the problem and reducing the burden on the law-abiding, not on incarceration and penalties." The site includes links to its New York and Missouri companies, although neither mentions license-place reading for vehicle insurance enforcement purposes. "The System does not assume guilt and is incapable of identifying any driver," Securix continued. "It provides an interactive diversion program and,(sic) an easy, inexpensive path to compliance and success for violators." Herrington explained to the Mississippi Free Press in a phone interview on Sept. 7, 2022, how he believes the Securix system operates, based on his evaluation. "What they use is a technology called automated license plate readers, ALPRs, to take computerized images of license plate and then the Securix system runs that license plate through various databases to ascertain whether the vehicle has a vehicle insurance and if it doesn't, Securix will mail a, quote, ticket, unquote, to the registered owner of the vehicle," he said. "And the ticket looks like an official document from the city—for our client, the document says it's from the Ocean Springs Police Department; it doesn't mention Securix's name anywhere on the document." "In a nutshell, the City is trying to sub out its uninsured motorists' enforcement." The law firm argues in the lawsuit filing that Miss. Code Ann. § 17-25-19(1)(a) provides the basis for concluding that such a practice was illegal. "Neither the board of supervisors of any county nor the governing authority of any municipality shall adopt, enact or enforce any ordinance authorizing the use of automated recording equipment or system to enforce compliance with traffic signals, traffic speeds or other traffic laws, rules or regulations on any public street, road or highway within this state or to impose or collect any civil or criminal fine, fee or penalty for any such violation," the law states. "Any county or municipality using automated recording equipment or system shall remove the equipment or system before October 1, 2009." Cited 'For Merely Owning A Vehicle' The lawsuit indicated that Divine's ticket via mail gave her three options. She could present proof of insurance valid at the time of the supposed violation, pay $300 for entrance into a diversion program or appear in court on a specified date. The lawsuit acknowledged that state laws require uninsured drivers to pay a fine or have their licenses suspended. However, it also stated, "There is no statute that allows a person to be cited for simply owning a vehicle that is not registered with liability insurance." "The statutes only require that a properly stopped vehicle operator (as opposed to the owner) provide proof of liability insurance coverage for the person operating the vehicle," it continues. "Defendant takes zero effort to determine who was operating the vehicle for purposes of issuing its Tickets." Program Pitched to Senatobia and Columbus On March 1, 2022, the City of Senatobia Board of Aldermen, according to that day's meeting minutes, voted to allow Mayor Greg Graves to sign a contract similar to what Ocean Springs has with Securix, as the plaintiff's filing points out. Ocean Springs City Attorney Robert Wilkinson (spelled Wilkerson in the minutes) and Frontier Strategies co-owner Josh Gregory made a pitch for Securix that day at the Board of Aldermen's meeting. An online Ocean Springs document indicated that Wilkinson is the city's attorney. A receptionist with the City of Ocean Springs personnel department told the Mississippi Free Press on Sept. 14, 2022, that Wilkinson works at the law firm of Dogan And Wilkinson, PLLC. This reporter left a voice message for him at the company that same day, and he has not returned the call. Frontier Strategies' Josh Gregory was an adviser for former Gov. Phil Bryant. His company Frontier Strategies is an advertising, public relations and lobbying firm, which the Northside Sun reported enjoyed upwards of $14.1 million from State of Mississippi contracts from 2009 to 2020. The payments were for a variety of work for state agencies. Steve Wilson reported in the Sun in 2020 that Frontier's lobbying/political clients have included U.S. Sens. Thad Cochran and Cindy Hyde-Smith and Congressmen Gregg Harper and Michael Guest. But, the Sun pointed out, Phil Bryant was Frontier's largest political client, bringing in $1.365 million for campaign work from 2009 to 2017. The Senatobia Board of Aldermen's meeting minutes did not indicate in what capacity Wilkinson was there on March 1, 2022, merely that he was an attorney. A Senatobia City official told the Mississippi Free Press by phone on Sept. 15, 2022, that the program began in August 2022. Following Wilkinson's effort in Senatobia, Miss., he was in Columbus at its city council work session on March 31, 2022, also with Gregory. A news report about Wilkinson's efforts in the Columbus, Miss.-based local newspaper, The Dispatch, indicated that Wilkinson was not only Ocean Springs' city attorney but was also a legal representative for Securix. The news report used "Wilkinson" and "Wilkerson" interchangeably. "Attorney Robert Wilkinson, who represents Securix, and who also is the city attorney for Ocean Springs, explained that the system captures tag numbers and compares them to a national insurance database to see if the driver is insured," The Dispatch said. "Wilkinson explained he has recused himself from any matter involving Securix and Ocean Springs, which uses the program." Wilkinson said a police officer gets $25 per hour for officers "who monitor the system and writes the ticket," and the money from the company and the city share the fee, The Dispatch reported. 'Their Pitch to Cities' Plaintiff's attorney Herrington said such payments to officers are among the promises the company makes to cities. "Another reason this program just doesn't pass the smell test (is that) Securix pays the police officers for quote, confirming, unquote, the ticket information," he told the Mississippi Free Press. "So their pitch to cities is: 'We can take the burden of enforcing uninsured motor vehicle statutes away from you. We'll ease that burden. We'll do it all. We'll detect the violations. We will issue the citations; we will collect the money, and we'll give you a part of it. So not only do we ease your burden, but we make you money.' That's their pitch." The Dispatch reported that Wilkinson told the Columbus City Council that after paying the fee, "the driver does not have to go to court and gets to keep their driver's license," the paper said. "Those who don't respond to Securix's letter or who refuse to participate in the diversion program take their chances in the court system." The newspaper added that "[i]f they are found guilty, they have to pay a fine and court fees, and their license is suspended and can't be reinstated until they have proof of insurance and pay a reinstatement fee to the Department of Public Safety, (Wilkinson) said." The lawsuit, however, contends that for Divine, "[t]he Ticket provides a July 1, 2022, court date," "no case was ever docketed with the court." The lawsuit said she received the letter that same day. "In other words, the Ticket 'summons' Plaintiff to a court date that does not exist," the legal filing added. Lawyer: It was a 'Bogus' Court Date Herrington described the court date Divine received as "bogus" and explained to the Mississippi Free Press what happened when he called Ocean Springs Municipal Court. "On behalf of our client, I called the municipal court to see if her ticket had actually been docketed with the court, and they told me no, and then they referred me to the phone number for Securix," he said. "While they didn't say it was Securix, they just provided me with a phone number to call, and it's the same number that's on this ticket and that phone number is created by Securix and their people." "The ticket also has a website that allows the person who receives the ticket to pay the fee online; and that website was created and maintained by Securix," he said. The Insurance Journal in March 2021 hailed the effectiveness of the Securix system in Ocean Springs, a city of less than 20,000. Ocean Springs Police Chief Mark Dunston said in the report, "In the last couple months, we have identified close to 6,000 violations." He also noted that "about 2% of cars so far have been wrongfully identified as not having insurance," the report added. Frontier Strategies partner Josh Gregory, whom the paper described as helping with marketing for Securix, told the Columbus City Council that the program "was up and running in Ocean Springs and would have a "soft launch next week in Pearl Miss. (And) Senatobia is starting the program May 1," the newspaper reported. City of Pearl official Greg Flynn told the Mississippi Free Press via email on Sept. 14, 2022, that the Rankin County city "haven't started using this technology, yet." Attorney: 'They're Splitting It 50-50' Attorney Chhabra said that Securix divides up the proceeds with the City and said the State gets nothing. "They're splitting it 50-50 with the City, and they're keeping it out of the court process. By keeping it out of the court process, they are avoiding the payment that is due to the State on any kind of lack-of-insurance infraction," he said. "There is a state law that says when a city gets money from a no-insurance ticket, they have to remit a certain portion of that to the state, but by keeping it out of the court and having this illegal process where the criminal and ticketing process is being handled by a private entity, they're avoiding that and not in a legal way," Chhabra argued. His position represents one side of a legal dispute. Herrington, who said Ocean Springs "probably started with the system in February 2022," told the Mississippi Free Press that the Securix System circumvents the process laid out in the statutes. "So it removes protection that has been afforded to alleged violators," he said. "Just by way of the example: the uniform traffic ticket has to be handed to the driver, that's not done in this case. There has to be some type of probable cause to believe that the driver was operating the vehicle without insurance, that doesn't occur here. In fact, the Securix system only takes a picture of the license plate and compares that with the database that has the insurance status of the vehicle owner, which may or may not be who the driver was." "Had the City (of Ocean Springs) done what it's supposed to do, the officer who stopped the vehicle for whatever reason, for speeding or running a red light, whatever, would have ascertained the insurance status of the driver, not the registered vehicle owner," he added. At the March 1, 2022, City of Senatobia Board of Aldermen's meeting, Josh Gregory said Ocean Springs had recorded about 5,400 citations using the Securix system. While reporting on Securix's operation in Ocean Springs, the insurance journal stated: "Mississippi law prohibits the use of cameras for enforcing traffic laws, such as red light and speeding violations. But statutes do not mention the use of cameras to catch insurance violations, officials said." Divine's lawyers disagree. The lawsuit claims that "Defendant's website contains many misrepresentations. For example, the site states, 'The Court Status Diversion program has been reviewed and approved by the State," they stated. "The State has done no such thing," they said. "In fact, state statute prohibits the use of cameras to enforce traffic laws." Miller disputed the plaintiffs' position to the Mississippi Free Press: "Everything they said in a lawsuit is ridiculous. It has no foundation at all, they're quoting the wrong laws, they're quoting the wrong references, everything they're doing, they're just, to create. . . there's nothing to talk about, there's nothing to discuss because there's not a single thing they said that's true, not one single thing is true." The lawsuit alleges violations of the 14th Amendment's Equal Protection Clause. "[D]efendant, acting under color of law, caused Plaintiff and the Class to be treated differently from citizens who were ticketed by municipalities that have not contracted with Defendant," the filing argues. "Defendant, acting under color of law, treats people differently who own cars that come within view of Defendant's cameras than people whose vehicle are operating in other areas where Defendant's cameras do not exist or where Defendant's cameras have been specifically prohibited by the municipality." Chhabra emphasized that the justice system does not allow the court to "pass off their duties to enforce criminal laws onto private companies; there certainly isn't a system that allows private companies to profit from it," he said. "[S]ecurix is running off with the money, and the State isn't getting anything; that's a pretty insane problem. I've never seen anything like it," he said. [GN] SENIOR VILLAGE: Fails to Pay Proper Wages, Williams Alleges ----------------------------------------------------------- JEREI WILLIAMS, individually and on behalf of all others similarly situated, Plaintiff v. SENIOR VILLAGE MANAGEMENT, LLC; STORYPOINT HOLDINGS, LLC; SENIOR LIVING CAPITAL MANAGEMENT COMPANY, LLC, Defendants, Case No. 2:22-cv-03420-ALM-CMV (S.D. Ohio, Sept. 14, 2022) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Plaintiff Williams was employed by the Defendants as staff. SENIOR VILLAGE MANAGEMENT, LLC offers assisted living, memory care, nursing home, residential care, and retirement living solutions. [BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N. Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Rd Suite #126 Columbus, OH 43220 Telephone: (614) 949-1181 Facsimile: (614)386-9964 Email: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com SIMAREN CORP: Davis Sues Over Failure to Pay Overtime Compensation ------------------------------------------------------------------ Khadijah Davis, on behalf of herself and all others similarly situated v. SIMAREN CORP. d/b/a WISDOM PROTECTIVE SERVICES, Case No. 525777/2022 (N.Y. Sup. Ct., Kings Cty., Sept. 6, 2022), is brought under the New York Labor Law for illegal and improper wage practices by failing to pay overtime compensation. The Defendant has engaged and continues to engage in illegal and improper wage practices. These practices include: requiring Security Guards to perform work without compensation during meal breaks; requiring Security Guards to perform work without compensation outside of their scheduled shift; failing to pay Security Guards at their straight or agreed upon rate for all hours worked under 40 hours in a week; failing to pay Security Guards overtime of time and one-half their regular rate of pay for all hours worked over 40 in a week; and failing to provide accurate wages statements, says the complaint. The Plaintiff has been employed by the Defendant from September 30. 2021 to the present as a security guard. The Defendant employs the Plaintiff out of its main office located in Westbury, New York.[BN] The Plaintiff is represented by: Louis Ginsberg, Esq. THE LAW FIRM OF LOUIS GINSBERG. P.C. 1613 Northern Boulevard Roslyn, N.Y. 11576 Phone: (516) 625-0105 X. 18 SMILEDIRECTCLUB INC: Faces Ciccio Securities Suit ------------------------------------------------- Smiledirectclub, 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 it is facing a putative class action on behalf of a consumer and three orthodontists brought against the company in the U.S. District Court for the Middle District of Tennessee captioned "Ciccio, et al. v. SmileDirectClub, LLC, et al.," Case No. 3:19-cv-00845 in September 2019. Plaintiffs assert claims for breach of warranty, false advertising under the Lanham Act, common law fraud, and various state consumer protection statutes relating to the company's advertising. Following a proactive voluntary dismissal by the majority of consumer plaintiffs, one consumer has since sought to rejoin the Middle District of Tennessee litigation or, in the alternative, to intervene, which the Court granted. That ruling has been appealed, and the Court stayed the consumer claims pending the appeal. On June 25, 2021, the appellate court reversed the district court and remanded with instructions to order the intervening plaintiff to mandatory binding arbitration. All remaining consumer claims remain stayed. On October 13, 2021, the Court entered an Amended Scheduling Order, effectively staying merits discovery, and setting deadlines of March 30, 2022, to complete class certification fact discovery and September 2, 2022, to complete briefing on motions regarding class certification. Class certification fact discovery was completed on March 30, 2022. SmileDirectClub is an oral care company based in Tennessee. SMILEDIRECTCLUB LLC: S.D. Fla. Denies Motion to Dismiss FTSA Suit ----------------------------------------------------------------- lawstreetmedia.com reports that an order was filed in the Southern District of Florida denying the motion of defendant SmileDirectClub, LLC (SDC), to dismiss a class action complaint filed against them by Alejandro Borges. The class action was brought under the Florida Telephone Solicitation Act (FTSA). Plaintiff Borges alleges that as an international orthodontic device company, defendant SDC "engages in telephonic sales calls to consumers without securing their prior express written consent" in violation of the FTSA. Borges contends that defendant SDC sent him two unsolicited text messages promoting their goods and services in July of 2021 and did the same to other individuals residing in Florida without their express written consent. The unsolicited communications were allegedly sent by SDC using "a computer software system that automatically selected and dialed Plaintiff's and the Class members' telephone numbers." The plaintiff's initial complaint sought statutory damages and an order preventing the Defendant from making additional sales calls without the express written consent of the individual. The suit was met with defendant SDC's challenge that the FTSA is unconstitutional. Specifically, SDC argued that the FTSA violates the first amendment by placing a content-based restriction on speech and that it violates the Due Process Clause of the fourteenth amendment since it is unconstitutionally vague and does not specify what an "automated system for the selection or dialing of telephone numbers." The Court denied SDC's motion to dismiss and explained that SDC "neither contests the sufficiency of the factual allegations nor the plausibility of the claims as alleged in the complaint." Judge Melissa Damian ruled that the plaintiff had sufficiently stated a claim under the FTSA and that the FTSA was not in violation of the first amendment because the restriction is on commercial speech as is "narrowly tailored to advance the significant government interest in reducing unwanted sales calls." Judge Damian further determined that the FTSA is not unconstitutionally vague, claiming that defendant SDC's argument was unpersuasive and that "the lack of a definition for the term "automated system" is not grounds to invalidate the entire statute." The Southern District of Florida's denial of defendant SDC's motion to dismiss was issued on Sept. 15. The plaintiffs are represented in the litigation by Shamis & Gentile, Hiraldo PA, Edelsberg Law, and Normand. SmileDirectClub was represented by Benesch, Friedlander, Coplan & Aronoff and GrayRobinson. [GN] SOUTHWEST AIRLINES: Jimenez Files FLSA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Southwest Airlines Co. The case is styled as Christopher Jimenez, on behalf of himself, individually, and all other persons similarly situated v. Southwest Airlines Co., Case No. 2:22-cv-05313-GRB-ST (E.D.N.Y., Sept. 7, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Southwest Airlines Co. -- https://www.southwest.com/ -- typically referred to as Southwest, is one of the major airlines of the United States and the world's largest low-cost carrier.[BN] The Plaintiff is represented by: Peter Arcadio Romero, Esq. David Donald Barnhorn, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 490 Wheeler Road, Suite 250 Hauppauge, NY 11788 Phone: (631) 257-5588 Fax: (631) 201-3137 Email: Promero@RomeroLawNY.com dbarnhorn@romerolawny.com STONE & SAUNDERS: Radwane Files TCPA Suit in S.D. Ohio ------------------------------------------------------ A class action lawsuit has been filed against Stone & Saunders LLC. The case is styled as Halim Radwane, individually and on behalf of all others similarly situated v. Stone & Saunders LLC, Case No. 2:22-cv-03358-MHW-EPD (S.D. Ohio, Sept. 6, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Stone & Saunders -- https://www.stonesaunders.com/ -- is a business-to-business debt collection company.[BN] The Plaintiff is represented by: Andrew John Shamis, Esq. SHAMIS & GENTILE, PA 14 NE 1st Ave., Suite 705 Miami, FL 33132 Phone: (305) 479-2299 Fax: (786) 623-0915 Email: ashamis@sflinjuryattorneys.com TC DEVA: Court Approves Voluntary Dismissal of Hamlin Class Suit ---------------------------------------------------------------- In the case, SHANNON HAMLIN, Plaintiff v. TC DEVA GROUP, LLC, Defendant, Case No. 2:20-cv-02527-DAD-KJN (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California dismisses with prejudice the action as to the Plaintiff's individual claims and without prejudice as to her class claims. On Aug. 17, 2022, the parties filed a stipulation to voluntarily dismiss the putative class action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). In particular, they stipulated and agreed to the dismissal of the Plaintiff's individual claims with prejudice and the dismissal of her class claims without prejudice. They also stipulated that they will each bear their own fees and costs. Pursuant to the parties' stipulation and good cause appearing, Judge Drozd dismisses with prejudice the action as to the Plaintiff's individual claims and without prejudice as to her class claims. The parties will bear their own fees and costs. All pending deadlines and hearing dates are vacated. The Clerk of the Court is directed to close the case. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/3xrcvh33 from Leagle.com. TD BANK NA: Herrera Sues Over Failure to Safeguard PII ------------------------------------------------------ Alba Herrera, on behalf of herself and all others similarly situated v. TD BANK, N.A., Case No. 1:22-cv-22838-XXXX (S.D. Fla., Sept. 6, 2022), is brought for causes of action sounding in negligence, violations of the Fair Credit Reporting Act, and violations of the Electronic Funds Transfer Act as a result of TD Bank's failure to safeguard and properly authenticate those consumers' PII—including but not limited to their name, Social Security Number, date of birth, and government-issued identifications number--enabled unauthorized third parties to commit identity theft. Consumers who have never banked with TD Bank have recently discovered that TD Bank opened fraudulent accounts using their identity and personal information. The consumers were not aware of these accounts being opened, did not authorize them, and in the Plaintiff's case, had never even banked with TD Bank in the past. TD Bank's practice of allowing unauthorized accounts to be opened without minimal verification or security authentication procedures is the latest in a series of abusive and fraudulent practices that TD Bank has employed. Most recently, unauthorized third parties have capitalized on TD Bank's loose practices by using TD Bank's Online Banking platform to open fraudulent checking and savings accounts with consumers' stolen Personal Identifying Information ("PII") (the "Unauthorized Account Openings"). In February 2022, residents of the Sandhills area in North Carolina began receiving checks, debit cards, statements, and welcome letters from TD Bank. The residents were shocked because they had never opened accounts with TD Bank, and the nearest TD Bank branch was 100 miles away in South Carolina. TD Bank never reached out to them to confirm identity before opening the accounts. The local authorities opened an investigation and determined that over 1,000 Sandhills residents' names were used open unauthorized TD Bank accounts. The Plaintiff and members of the Class have been significantly injured by the Unauthorized Account Openings and have incurred out-of-pocket expenses associated with the reasonable mitigation measures they were forced to employ. The Plaintiff and the Class have also incurred damage to their credit. The Plaintiff and the Class also face identity theft and damages associated with identity theft because their PII has fallen into the hands of cybercriminals. TD Bank's negligent practices allowed cybercriminals to open fraudulent accounts using TD Bank's Online Banking platform, says the complaint. The Plaintiff is a natural person who lives in Cutler Bay, Florida. TD Bank is a national bank with its headquarters and principal place of business located in Cherry Hill, New Jersey.[BN] The Plaintiff is represented by: Jeff Ostrow, Esq. Jonathan M. Streisfeld, Esq. KOPELOWITZ OSTROW P.A. One W. Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Phone: (954) 525-4100 Facsimile: (954) 525-4300 Email: ostrow@kolawyers.com streisfeld@kolawyers.com - and - Lynn A. Toops, Esq. Amina A. Thomas, Esq. Lisa M. La Fornara, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Phone: (317) 636-6481 Email: ltoops@cohenandmalad.com athomas@cohenandmalad.com llafornara@cohenandmalad.com TIFFANY & CO: Cody Suit Removed to C.D. California -------------------------------------------------- The case styled as Annette Cody, individually and on behalf of all others similarly situated v. Tiffany & Co., Does 1 through 25, inclusive, Case No. 30-02022-01272211-CU-MT-CXC was removed from the Orange 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. 8:22-cv-01648-DOC-ADS to the proceeding. The nature of suit is stated as Other P.I. Tiffany & Co. -- https://www.tiffany.com/ -- is an American luxury jewelry and specialty retailer, headquartered in Fifth Avenue, New York City.[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: Ann Marie Mortimer, Esq. Brandon Matthew Marvisi, Esq. HUNTON ANDREWS KURTH LLP 550 South Hope Street Suite 2000 Los Angeles, CA 90071-2627 Phone: (213) 532-2000 Fax: (213) 532-2020 Email: amortimer@huntonAK.com bmarvisi@huntonak.com TRANS UNION: Gray Files Suit Over Inaccurate Consumer Credit Report ------------------------------------------------------------------- JESSICA GRAY, individually and on behalf of others similarly situated, Plaintiff v. TRANS UNION, LLC, Defendant, Case No. 3:22-cv-01330-AJB-DDL (S.D. Cal., Sept. 6, 2022) is brought by the Plaintiff for damages and any other available legal or equitable remedies, resulting from the alleged illegal actions of the Defendant for failing to maintain and follow reasonable procedures to ensure maximum possible accuracy of Plaintiff's consumer credit reports in violation of the Fair Credit Reporting Act. The cause of action pertains to Plaintiff's "consumer report," as defined by the FCRA, in that inaccurate misrepresentations of Plaintiff's credit worthiness, credit standing, and credit capacity were made via written, oral, or other communication of information by the Defendant, which were used or expected to be used, or collected in whole or in part, for the purpose of serving as a factor in establishing Plaintiff's eligibility for, among other things, credit to be used primarily for personal, family, or household purposes, and employment purposes. Trans Union, LLC is a consumer credit reporting agency.[BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. Spencer L. Pfeiff, Esq. SWIGART LAW GROUP, APC 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Telephone: (866) 219-3343 E-mail: Josh@SwigartLawGroup.com Spencer@SwigartLawGroup.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Telephone: (619) 222-7429 E-mail: DanielShay@TCPAFDCPA.com TRANSDEV ALTERNATIVE: Tio Labor Suit Removed to N.D. California --------------------------------------------------------------- The case styled IRWANDIE TIO, individually, and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act, Plaintiff v. TRANSDEV ALTERNATIVE SERVICES, INC., a Delaware corporation; and DOES 1 through 100, inclusive, Defendants, Case No. 22CV400828, was removed from the Superior Court of the State of California, County of Santa Clara, to the U.S. District Court for the Northern District of California on Sept. 6, 2022. The Clerk of Court for the Northern District of California assigned Case No. 3:22-cv-05065 to the proceeding. The Plaintiff asserts a single cause of action for civil penalties under the California Labor Code Private Attorneys General Act, alleging (1) failure to pay overtime, (2) failure to provide meal and rest periods, (3) failure to pay minimum wages, (4) failure to timely pay wages, (5) failure to provide complete and keep accurate wage statements and payroll records, and (6) failure to reimburse employees for business-related expenses and costs. Transdev Alternative Services, Inc. provides passenger transportation services.[BN] Defendant Transdev Alternative Services, Inc. is represented by: Tyler M. Paetkau, Esq. HUSCH BLACKWELL LLP 1999 Harrison St., Suite 700 Oakland, CA 94612 Telephone: (510) 768-0650 Facsimile: (510) 768-0651 E-mail: Tyler.Paetkau@huschblackwell.com TRANSPERFECT TRANSLATIONS: Faces Beachy Suit Over Unpaid Overtime ----------------------------------------------------------------- Arielle Beachy, on behalf of herself and others similarly situated, Plaintiff v. TransPerfect Translations International, Inc., Defendant, Case No. 1:22-cv-07572 (S.D.N.Y., Sept. 6, 2022) arises from the Defendant's failure to pay overtime compensation to Plaintiff and each member of the putative class as required by the Fair Labor Standards Act and the California Labor Code. Plaintiff Beachy was previously an opt-in Plaintiff in the Menchaca v. Transperfect Translations International, Inc., Case No. 21-cv-09390 filed in the United States District Court for the Central District of California on December 3, 2021, where the named Plaintiff there alleged that TransPerfect failed to (1) pay her and others similarly situated overtime compensation under FLSA, (2) pay her and others similarly situated overtime compensation under California law, and (3) timely pay her all wages due under California Labor Code. The named Plaintiff in the Menchaca Case was required to submit her claim to arbitration, but a stipulation between TransPerfect and Plaintiff tolled Plaintiff's FLSA and California Labor Code claims as of December 17, 2021 -- the date Beachy filed her consent form in the Menchaca Case. Plaintiff Beachy withdrew from the Menchaca Case and now seeks relief under the FLSA and for her individual California state law claims in this action. The Plaintiff is currently employed as a project manager, or a similar title, since approximately January 2018. TransPerfect Translations International, Inc is a language services provider.[BN] The Plaintiff is represented by: Michele R. Fisher, Esq. Reena I. Desai, Esq. Kayla Kienzle, Esq. NICHOLS KASTER, PLLP 80 South 8th Street, Suite 4700 Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 E-mail: fisher@nka.com rdesai@nka.com kkienzle@nka.com UNITED STATES: Denies Religious Rights to Vaccine Mandate --------------------------------------------------------- Tom Ciesielka at thomasmoresociety.org reports that Thomas More Society attorneys seek justice for denied religious exemptions to vaccine mandate. More than 1,200 service members of the United States Coast Guard are being denied their fundamental religious rights over an "oppressive and unconstitutional" vaccine mandate. On September 16, 2022, Thomas More Society attorneys filed a new class action lawsuit in federal court, challenging the Coast Guard's across-the-board denial of requests for religious exemptions from the Biden Administration's COVID-19 vaccine mandate. The lawsuit also seeks a temporary restraining order and a preliminary injunction against the imminent dismissal of these religiously conscientious service members, which will occur as soon as next month. The lawsuit, Stone et al. v. Mayorkas et al., explains that the Coast Guard's refusal to give actual individualized consideration to service members' requests for religious accommodation directly violates the First Amendment and the Religious Freedom Restoration Act. The plaintiffs include Lieutenant Junior Grade Stone, the Coast Guard Academy's 2020 Distinguished Honor Graduate (the top graduate in his class) whose supervising officer recently declared him to be an "Exemplary Officer [who] embodies critical leadership skills" and lauded his "commitment to core values," and gave him the "highest recommendation" for future at-sea tours-even though his religious accommodation request had already been finally denied. Plaintiffs also include Non-Commissioned Officer Eric Jackson, an 18-year Coast Guard service member who was awarded this year for his exemplary service, and whose commander officially stated that his religious accommodation request posed "no hindrance to operations" or "mission readiness"; and also Lieutenant Junior Grade Michael Marcenelle, who on the same day he was reprimanded for his religious refusal to receive a COVID-19 vaccine, also received the Coast Guard Achievement Medal for his superior performance the past three years, including during the pandemic. "These exemplary Coast Guard officers and are being rewarded for their documented stellar service by dismissal. That is both immoral and illegal. This lawsuit seeks to stop the government's religious discrimination against these, and all members of the Coast Guard, and to prevent their discharge from the military, which has been initiated solely because they are as loyal to their faith as they have been to this nation," explained Thomas More Society Senior Counsel Stephen Crampton. The lawsuit describes how the government and military have abused the rights of the named Coast Guard officers and the others in their class by violating both the federal Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment. Additionally, in violation of the Administrative Procedure Act, defendants denied these military personnel the opportunity to seek exemption based on natural immunity and issued the purported final denials to their religious exemption requests via someone without the authority to issue those denials. Plaintiff Alaric Stone commented on the reason for this lawsuit: "My faith called me to serve my country in the Coast Guard," said Stone, whose great-great uncle Elmer Stone was the first Aviator in Coast Guard in history, and whose father also served as a Coast Guard Lieutenant. "Now I find myself in a situation where I am being forced to choose between my faith and service to my country; it's truly heartbreaking. I took an oath to uphold and defend the Constitution, and religious freedom is a cornerstone of our Constitutional guarantees. There are more than a thousand other Coast Guard men and women who have religious objections to these vaccines and find themselves in a similar position. Our first President and Commander and Chief, George Washington, said it best when he wrote 'When we assumed the Soldier, we did not lay aside the Citizen.'" Stone, Jackson, and Marcenelle are each facing involuntarily discharge because they - and the other Coast Guard members in the class - sincerely believe that receiving one of the currently available COVID-19 vaccines would violate their religious conscience and would be contrary to their faith, because all of the available COVID-19 vaccines were developed with or tested on aborted fetal cell lines. The military has not disputed the sincerity of the plaintiffs' religious beliefs. Yet it nevertheless seeks to imminently purge them. Stone, Jackson, and Marcenelle, have each been singled out for their exemplary, service, yet each has been almost simultaneously reprimanded and promised an involuntary discharge for refusing to receive the COVID-19 vaccination, which violates their religious beliefs and is required under an illegal mandate. "These blatant violations of these Coast Guard officers' rights are over an oppressive and unconstitutional vaccination mandate," declared Crampton. "The Coast Guard has categorically refused to consider any religious accommodations for these American heroes, while at the same time allowing secular exemptions." "The Coast Guard has made threats, and carried out threats, to punish service members who apply for religious accommodations to the vaccine mandate. The service has denied them schooling, promotion, and assignments. These military personnel have been formally reprimanded and threatened with involuntary discharge," Crampton added. "The Coast Guard has also ignored the latest Centers for Disease Control prevention guidelines, which recommend no longer differentiating based on a person's vaccination status. At the same time, it is forcing these brave and principled service members out, the Coast Guard admits it faces an urgent shortfall in personnel and recruiting. The actions of both the government and the Coast Guard in this situation are ridiculous as well as illogical." The United States Supreme Court recently declared that denying a religious accommodation because of "speculation" and "conjecture" about hypothetical future harms-which is the Coast Guard's basis for forcing these plaintiffs and putative class members out of the military-is a brazen violation of Religious Freedom Restoration Act and the First Amendment. Earlier this year, Thomas More Society attorneys obtained the first-in-the-nation injunction against the Air Force on behalf of an individual officer and helped bring about a class-wide injunction against the Air Force in another case, and challenges to the vaccine mandates in the Navy and Marines have already elicited court orders protecting all religious service members. The class action filing names Secretary of the Department of Homeland Security Alejandro Mayorkas, Secretary of the Department of Defense Lloyd Austin, Commandant of the Coast Guard Linda Fagan, and Assistant Commandant for Human Resources Coast Guard, Brian Penoyer as defendants. Crampton is joined in the case by Thomas More Society Special Counsel Adam Hochschild, Mary Catherine Hodes, Paul Jonna, and Nathan Loyd, Thomas More Society Counsel Michael McHale, and Charles Fillmore and Dustin Fillmore, of the Fillmore Law Firm, L.L.P. Read the Complaint - Class Action filed on September 16, 2022, by Thomas More Society attorneys on behalf of Coast Guard personnel Alaric Stone, Eric Jackson, and Michael Marcenelle, in Stone et al. v. Mayorkas, et al. in the United States District Court for the Northern District of Texas, in Fort Worth, here. [GN] UNITEDHEALTH GROUP: Wins Suit Over Office Surgery Facility Fees --------------------------------------------------------------- UnitedHealth Group. Inc. defeated a class action by more than 200 doctors who say they weren't paid facility fees for office-based surgeries, when a New York federal judge ruled that the insurer used reasonable payment systems and followed ERISA plan terms. UnitedHealth conducted an appropriate review of its health plan terms and reasonably determined that it wasn't required to pay these additional fees to physicians performing in-office surgeries, Judge J. Paul Oetken of the US District Court for the Southern District of New York. None of the health plan documents in the record had language "plainly requiring" United to pay these fees, and many plans "clearly precluded such payments," he said. Oetken's ruling, issued after a five-day nonjury trial, also blessed UnitedHealth's "C Flag process," which internally flags physician offices submitting claims for facility fees and sends these offices a letter inviting them to submit proof of facility licensure. This was a "reasonable way to ensure that benefits are administered consistent with plan terms," he said. The physicians accused UnitedHealth and related companies of violating the Employee Retirement Income Security Act and breaching the terms of various health plans by failing to pay "facility fees" that out-of-network surgeons charge for office-based surgeries. Oetken certified portions of the case as a class action in 2019, and in 2020 he allowed some of the case's ERISA claims to go to trial. Zuckerman Spaeder LLP and Buttaci Leardi & Werner LLC represent the plaintiffs. O'Melveny & Myers LLP represents the insurers. The case is Med. Soc'y of N.Y. v. UnitedHealth Grp., Inc., 2022 BL 323869, S.D.N.Y., No. 1:16-cv-05265, 9/14/22. To contact the reporter on this story: Jacklyn Wille in Washington at jwille@bloomberglaw.com To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com [GN] VERMONT: Court Dismisses Abdel-Fakhara Class Suit W/o Prejudice --------------------------------------------------------------- In the case, FATIME ABDEL-FAKHARA, MAURICIO ESTEBAN GARCIA GIRALDO, SYLVANA CARNEIRO HETKA, HRH LINUS NTO MBAH, PAULINA FUENTES MOAD, LINH THI THUY PHAM, TONGYI WANG, JUSTIN SINGH, JARED GRESTONI, MAXIM SMOLENTSEV, Individually, and on Behalf of a Class of Similarly Situated Persons, Plaintiffs v. THE STATE OF VERMONT, DAVID CASSETTY, SUSAN DONEGAN, JOHN KESSLER, EUGENE FULLAM, WILLIAM GRIFFIN, PATRICIA MOULTON, MICHAEL PIECIAK, JOHN/JANE DOES 1-10, Defendants, Case No. 5:21-cv-198 (D. Vt.), Judge Geoffrey W. Crawford of the U.S. District Court for the District of Vermont grants the Defendants' Motion to Dismiss. The case arises in the context of the EB-5 visa program administered by the United States Citizenship and Immigration Services ("USCIS"). The Immigration and Nationality Act allocates a certain number of visas to qualified immigrants who invest capital in geographic regions of the United States that are rural or suffer from high unemployment. These visas are commonly known as "EB-5" visas. The Plaintiffs are foreign nationals who invested in financing for construction of the QBurke Mountain Hotel and Conference Center in East Burke, Vermont. Each Plaintiff invested $500,000 through the federal "EB-5" program. This program offers foreign investors a path to citizenship by investing in qualified projects designed to promote economic development and create jobs in the United States. Although the hotel was completed and is open for business, it is currently held by a federal receiver as a result of fraud committed by the principals in connection with EB-5 investments in Vermont. Three of the principals have been sentenced to prison terms for their conduct. The Plaintiffs have received neither the return of their investment nor in many cases the "green card" status they sought through the EB-5 program. The QBurke Mountain Resort Project was a proposal for the construction of a hotel and activity center located at the Burke Mountain Resort in Vermont's Northeast Kingdom. The project was the last in time of eight phases of EB-5 construction projects promoted by Ariel Quiros and others between 2008 and 2015. The first six phases financed improvements at the Jay Peak ski resort as well as, improperly, the purchase of Jay Peak by Mr. Quiros from its previous owners. The seventh, known as AnC-Bio, was a complete fraud in which immigrant-investors poured $85 million into a non-existent health research facility in Newport, Vermont. The QBurke hotel project followed AnC-Bio in time. The fraudulent scheme was made public on April 14, 2016, when the Securities and Exchange Commission ("SEC") announced its lawsuit against Ariel Quiros, William Stenger, and their companies. In May 2017, the Plaintiffs filed a civil lawsuit in state court against the Vermont Regional Center ("VRC"), the Vermont Agency of Commerce and Community Development ("ACCD"), the Vermont Department of Financial Regulation ("DFR"), Susan Donegan, Eugene Fullam, John Kessler, Patricia Moulton, Michael Pieciak, and other state officials not party to this suit. After review by the Vermont Supreme Court, Sutton v. Vermont Regional Center, 212 Vt. 612 (2019), the case returned to state superior court where it currently awaits trial. The Plaintiffs sue Vermont state officials David Cassetty, Ms. Donegan, Mr. Kessler, Mr. Fullam, William Griffin, Ms. Moulton, Mr. Pieciak, and 10 John/Jane Does alleging that Vermont state officials knew that investment projects designed to promote development at the Jay Peak Ski Area and at a bio-technology research facility in Newport, Vermont were tainted by fraudulent activity but concealed this information from investors. They allege that despite learning of the fraud, the Defendants continued to solicit investments, exercised control over their investment funds, and released these funds into the fraudulent scheme. The Plaintiffs assert that this conduct constitutes a governmental taking, requiring the state to compensate victims of the scheme (Count III). They also claim that the individual defendants conspired to deprive plaintiffs of their Fourteenth Amendment property rights and to appropriate plaintiffs' property without just compensation (Counts I, II). Last, they assert that the Individual Defendants' failure to warn investors of the fraud and to ensure that the EB-5 program complied with the requirements of immigration and securities laws amounted to gross negligence under 12 V.S.A. Section 5602(b) (Count IV). In response, the Defendants have moved to dismiss the action for lack of subject matter jurisdiction, untimeliness, and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Court heard argument on the motion on June 3, 2022. First, the Defendants argue that the Eleventh Amendment bars the Plaintiffs' Fifth Amendment takings claims against the State of Vermont (Count III). The Plaintiffs make two arguments in response to the State of Vermont's assertion of sovereign immunity. First, they argue that by agreeing to the Fourteenth Amendment to the Constitution, Vermont has necessarily limited its ability to assert sovereign immunity to avoid a constitutionally-mandated remedy -- the requirement to pay just compensation when the state takes private property." Second, they argue that the Ex Parte Young doctrine provides an exception to state sovereign immunity, permitting their claim against the state to proceed. Judge Crawford holds that the Fourteenth Amendment does not abrogate the Eleventh Amendment's guarantee of state sovereign immunity in the federal courts. In the absence of legislation, state immunity to suit remains in place. Even when Congress has enacted laws to enforce the Fourteenth Amendment, the Supreme Court has not endorsed the Plaintiffs' position that states can be ordered to pay money damages in federal court. He also holds that the Ex Parte Young exception does not apply and the claim against the State of Vermont is barred on sovereign immunity grounds. He says the declaratory relief the Plaintiffs seek -- stating that the Defendants took private property without due process or just compensation and an order for the return of the QBurke investment funds -- merely repackages the damages claims and would require payment from the state treasury for a past taking. Second, the Plaintiffs assert one claim of conspiracy to deprive them of their Fourteenth Amendment Due Process Clause rights (Count I) and one claim of conspiracy to appropriate their property for public use without just compensation in violation of the Fifth and Fourteenth Amendments (Count II) pursuant to 28 U.S.C. Section 1983. The conspiracy claims are against all Individual Defendants. The Defendants seek dismissal of these counts on statute of limitations grounds. They contend that the alleged takings occurred in 2015 and that Vermont's three-year statute of limitations governing Section 1983 claims ran out in 2018. The complaint was filed on Aug. 24, 2021. Judge Crawford finds that the action was commenced on Aug. 24, 2021. Aug. 24, 2021 is outside the three-year limitations period from the date the Plaintiffs knew or had reason to know of their injury and its cause. Accordingly, the Section 1983 conspiracy claims against the Individual Defendants are untimely and must be dismissed. Third, the Plaintiffs have filed claims of gross negligence against seven Vermont officials who played various roles in oversight of the VRC: Mr. Cassetty, Ms. Donegan, Mr. Kessler, Mr. Fullam, Mr. Griffin, Ms. Moulton, and Mr. Pieciak. The Court exercises diversity jurisdiction over these state law claims. In conducting an independent evaluation of the allegations in the Amended Complaint, Judge Crawford seeks to maintain consistency with the legal rulings already in place in the Sutton decision or, if the outcome is different as to any Individual Defendant, to explain why. In Sutton v. Vermont Regional Center, the Vermont Supreme Court ruled that Ms. Moulton was entitled to absolute immunity because she was "the highest executive officer in ACCD." Mr. Fullam received qualified immunity. In the case of Mr. Kessler, the Vermont Supreme Court concluded that the plaintiffs could not make out claims of gross negligence against him. Judge Crawford holds that (i) Secretary Moulton is entitled to absolute immunity for the alleged acts undertaken involving the EB-5 program and because of the broad range of her official duties and the wide scope of her discretion; (ii) Commissioner Donegan is entitled to absolute immunity in her capacity as the former Commissioner of the DFR and any allegations related to her participation in the securities investigation of the Jay Peak projects fall fully within her statutory authority as the leader of DFR; (iii) Mr. Cassetty is entitled to absolute immunity only for the adjudicative portion of his role; and (iv) the allegations against Mr. Pieciak in the Amended Complaint do not entitle him to absolute immunity. Judge Crawford further holds that (i) because Mr. Pieciak was, at all times alleged in the Amended Complaint, acting in the course of his employment and within the scope of his authority, and was performing discretionary acts in good faith, Mr. Pieciak is entitled to qualified immunity; (ii) Mr. Cassetty is entitled to statutory immunity under 8 V.S.A. Section 17 and in the alternative to qualified immunity because the Amended Complaint does not allege any conduct by him in excess of his statutory authority; (iii) Mr. Griffin is entitled to qualified immunity because no statute or decisional law obliged him to conduct the investigation in a particular fashion, or to disclose the investigation to investors at a specific time; (iv) Mr. Fullam is entitled to qualified immunity since none of the facts alleged establish that he was acting outside the scope of his authority, acting in bad faith, or performing non-discretionary acts; (v) the Plaintiffs have not established that Mr. Kessler violated clearly established law or acted in bad faith so he is entitled to qualified immunity. Judge Crawford makes one final point before concluding. As in the case of every ruling on a motion to dismiss, the Court has considered the facts only from the Plaintiffs' side. The Individual Defendants have a very different view of the reasons they acted as they did. Describing that version lies beyond the Court's assigned task, Judge Crawford holds. As this case demonstrates, fraud by trusted individuals requires financial regulators and other state officials to make decisions in the midst of a complex investigation. Immunity doctrine exists because these decisions are difficult and because a decision that harms someone should not lead to personal financial ruin for the official charged with making these decisions in real time and without the benefit of hindsight. For these reasons, Judge Crawford grants the Defendants' Motion to Dismiss. Count III against the State of Vermont is dismissed with prejudice because improved pleading will not change the outcome of a strictly legal ruling. All other counts are dismissed without prejudice. A full-text copy of the Court's Sept. 6, 2022 Order is available at https://tinyurl.com/4k83su3d from Leagle.com. VIATRIS INC: Court Approves Settlement in Antitrust Suit -------------------------------------------------------- Viatris 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 settlement was approved in July 2022 with regard to purchaser class actions relating to the pricing and/or marketing of the "EpiPen" Auto-Injector The company and a former Mylan N.V. (predecessor of Viatris) officer were named as defendants in these cases that asserted violations of various federal and state antitrust and consumer protection laws, RICO as well as common law claims. Plaintiffs' sought monetary damages, attorneys' fees and costs. These lawsuits were filed in various federal and state courts and were either dismissed or transferred into a MDL in the U.S. District Court for the District of Kansas and have been consolidated or centralized. An antitrust class consisting of certain states was ultimately certified. On June 23, 2021, the court granted (in substantial part) the Mylan defendants' motion for summary judgment by dismissing certain antitrust claims and the RICO claims, which included RICO claims asserted against the former Mylan N.V. officer. In February 2022, the parties reached an agreement to fully resolve this matter for $264 million, which was accrued for during the year ended December 31, 2021. During the first quarter of 2022, $5.0 million of the settlement was paid with the remaining amount of the settlement being paid in July 2022. The settlement was approved by the Court on July 11, 2022 Viatris is a global healthcare company based in Pennsylvania. VOLKSWAGEN GROUP: Mandani Counsel to Clarify Amount of Sought Fees ------------------------------------------------------------------ In the case, MIKE MANDANI, et al., Plaintiffs v. VOLKSWAGEN GROUP OF AMERICA, INC., Defendant, Case No. 17-cv-07287-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California orders the Plaintiffs' counsel to e-file a second supplemental filing that substantiates its representation in its Motion for Attorneys' Fees. The Plaintiffs' counsel filed a motion for attorneys' fees in connection with a proposed class action settlement. In that motion, it asks for "a reduced lodestar of 1,590 hours equating to fees in the amount of $1,050,000." At the hearing on the motion, the Court ordered the Plaintiffs' counsel to submit a supplemental filing identifying counsel's lodestar and summarizing the timekeepers' rates and hours worked. The Plaintiffs' counsel submitted a supplemental filing on Aug. 25, 2022. By the Court's calculation, however, the supplemental filing corroborates only 1,281.3 hours worked for total fees of $996,348.80. Given the representation in footnote 3 of the supplemental filing that some timekeeper records have been lost, it is unclear if the Plaintiffs' counsel is asking for a lower amount in fees than originally requested because the full hours worked cannot be substantiated. In light of this, Judge Gilliam orders the Plaintiffs' counsel to e-file a second supplemental filing that substantiates its representation in its Motion for Attorneys' Fees that it is seeking "a reduced" amount in fees with a "negative multiplier." The actual (i.e. non-reduced) lodestar must be supported with a summary of hours worked by timekeeper. The supplemental filing should also clarify what amount the Plaintiff is requesting in fees. A full-text copy of the Court's Sept. 2, 2022 Order is available at https://tinyurl.com/2sm7ahm7 from Leagle.com. VROOM INC: Martinez Suit Removed to C.D. California --------------------------------------------------- The case styled as Emely Reyes Martinez, for herself and all others similarly situated v. Vroom, Inc., Does 1 through 25, inclusive, Case No. 652684/2022 was removed from the Supreme Court of the State of New York, County of New York, to the U.S. District Court for Southern District of New York on Sept. 7, 2022. The District Court Clerk assigned Case No. 1:22-cv-07631-VM to the proceeding. The nature of suit is stated as Other Contract. Vroom, Inc. -- https://www.vroom.com/ -- is an end-to-end e-commerce platform that offers a way to buy and sell used vehicles.[BN] The Plaintiff is represented by: Gabriel Posner, Esq. POSNER LAW PLLC 50 Main Street, Suite 1000 White Plains, NY 10606 Phone: (914) 517-3532 Email: gabe@PosnerLawPLLC.com - and - Joshua Eli Abraham, Esq. 477 Madison Avenue Suite 1230 New York, NY 10022 Phone: (646) 245-6710 Fax: (646) 201-4454 Email: josh@abrahamesq.com The Defendants are represented by: Jooyoung Yeu, Esq. Eric Foster Leon, Esq. LATHAM & WATKINS LLP 1271 Avenue of the Americas New York, NY 10020 Phone: (212) 906-4759 Email: jooyoung.yeu@lw.com eric.leon@lw.com WARBY PARKER: Cody Suit Removed to C.D. California -------------------------------------------------- The case styled as Annette Cody, individually and on behalf of all others similarly situated v. Warby Parker, Inc., Does 1 through 25, inclusive, Case No. 30-02022-01273036-CU-MT-CXC was removed from the Superior Court of California County of Orange, to the U.S. District Court for Central District of California on Sept. 7, 2022. The District Court Clerk assigned Case No. 8:22-cv-01653-FWS-ADS to the proceeding. The nature of suit is stated as Other Fraud for Account Receivable. Warby Parker -- https://www.warbyparker.com/ -- is an American online retailer of prescription glasses, contact lenses, and sunglasses, based in New York City.[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: Bethany Gayle Lukitsch, Esq. Kamran Benjamin Ahmadian, Esq. 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