/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220923.mbx C L A S S A C T I O N R E P O R T E R Friday, September 23, 2022, Vol. 24, No. 185 Headlines ALAMEDA COUNTY, CA: Suit Seeks to Certify Women Inmate Class AMBASSADOR GROUP: Del Obispo Seeks Rule 23 Class Certification AMERICAN GENERAL: Dickson Appeals Remand Order to Tex. Supreme Ct. BELLA MIA: Hernandez Files ADA Suit in S.D. New York BILMAR BEACH: Gregorian Sues Over Unsolicited Telephonic Calls BROWER COLLEGE: Fla. Dist. App. Affirms Final Judgment in CCI Suit CALIFORNIA: Wilson's Class Cert. Bid Should Be Denied, Judge Says CAPITAL ONE BANK: Melchor Sues Over Unlawful Use of Voice Prints CELLULAR SALES: $577K Attorneys' Fees Award in Holick Suit Affirmed CHEGG INC: Motley & Saxena Named Lead Co-Counsel in Leventhal Suit CITY OF MALDEN: Appeals Judgment on Wage Act Claim in Owens Suit CITY OF NEW YORK: Kane Appeals Suit Dismissal to 2nd Circuit CONAGRA BRANDS: Henderson Sues Over Deceptive Pancake Mix Labels CONOCOPHILLIPS COMPANY: Galvan Sues Over Unpaid Overtime Wages COOKIES BY DESIGN: Hwang Files ADA Suit in E.D. New York DESIGNER BRANDS: Compelled to Produce Witness in Laguardia Suit FMC CARSWELL: Norman Appeals Suit Dismissal to 5th Circuit GAIA INC: Guida Sues Over Unlawful Disclosure of Subscribers' PII HEALTH IQ: Dobbs Appeals Arbitration Order in TCPA Suit to 3rd Cir. JOHNSON & JOHNSON: 3d Cir. Affirms Dismissal of Perrone ERISA Suit JOHNSON & JOHNSON: Oral Argument for MDL Class Suit Set Sept. 29 KOCHAVA INC: Greenley Sues Over Unauthorized Data Collection KOHL'S CORP: Timothy L. Miles Announces Securities Class Action MIDLAND FUNDING: Denial of Arbitration Bid in Zirpoli Suit Flipped MOUNTAIN WEST: Wins Bid to Deny Class Certification in Drange Suit NAVIENT CORP: 2nd Cir. Affirms Settlement Approval in Hyland Suit NEGRIL INC: Misclassifies Clinical Staff, Adam Suit Alleges NEW YORK CITY: Court Grants Bid to Dismiss Corchado v. Carter NISSAN MOTOR: Court Issues Final Judgment in Terteryan Class Suit NURTURE INC: N.D. California Narrows Claims in Sanchez Class Suit ONEIDA COUNTY, NY: Settlement Deal in Women's Jail Suit Proposed PARADIES SHOPS: Ramirez Appeals Suit Dismissal to 11th Cir. REDA BELLARBI: Parties Stipulate to Dismiss Brooks' Class Claims SAMSUNG ELECTRONICS: Fails to Protect Personal Info, Harmer Says SARA LEE: Agrees to Settle Mislabelling Class Action for $1-M SEEMAN HOLTZ: Court Denies Schwartz's Bid to Dismiss Millstein Suit SHERATON LLC: W.D. New York Dismisses Green Wage and Hour Suit SMARTMATCH INSURANCE: Hastings' Bid to Dismiss Granted in Part ST. CLOUD STATE: Partly Wins Bid to End Injunction in Portz Suit STATE FARM: Stanton Appeals Insurance Suit Dismissal to 3rd Cir. UBER TECHNOLOGIES: Mendel's Bid to Disqualify in James Suit Denied WALGREEN CO: Appeal on Corrective Notice in Aguilar Suit Dismissed YEXT INC: Robbins Geller Named Lead Counsel in Menzione Class Suit [*] Australia Proposes Changes to Class Action Funding Rules Asbestos Litigation ASBESTOS UPDATE: J&J Tries to Block Lawsuits from 40,000 Patients ********* ALAMEDA COUNTY, CA: Suit Seeks to Certify Women Inmate Class ------------------------------------------------------------ In the class action lawsuit captioned as ACLYN MOHRBACHER, ERIN ELLIS, DOMINIQUE JACKSON, CHRISTINA ZEPEDA, ALEXIS WAH, AND KELSEY , on behalf of themselves and others similarly situated, v. ALAMEDA COUNTY SHERIFF'S OFFICE, Case No. 3:18-cv-00050-JD (N.D. Cal.), the Plaintiffs ask the Court to enter an order: 1. Certifying that this action is maintainable as a class action under Federal Rules of Civil Procedure 23(a) and 23(b)(2) as to each of the Plaintiffs' causes of action; 2. Certifying a class of: "All women prisoners who have been incarcerated anytime since January, 2017, or who will be incarcerated into the future, in an Alameda County Jail (Women Inmate Class); 3. Certifying Jaclyn Mohrbacher and Andanna Ibe, as class representatives of women who are in custody in Santa Rita Jail; 4. Certifying a subclass of: "All women prisoners who have been or are pregnant during any period of their incarceration from January, 2017 (Pregnant Women Inmate 8 Subclass); and 5. Certifying Jaclyn Mohrbacher, Andanna Ibe, Erin Ellis and Christina Zepeda as the representatives of the Pregnant Women Inmate Sub-Class. The Alameda County Sheriff's Office is a law enforcement agency serving Alameda County, California. ACSO is accredited through the Commission on Accreditation for Law Enforcement Agencies, the American Correctional Association, National Commission on Correctional Health Care and the California Medical Association. A copy of the Plaintiffs' motion dated Sept. 1, 2022 is available from PacerMonitor.com at https://bit.ly/3QGLZVp at no extra charge.[CC] The Plaintiffs are represented by: Yolanda Huang, Esq. LAW OFFICES OF YOLANDA HUANG 528 Grand Avenue Oakland, CA 94610 Telephone: (510) 329-2140 Facsimile: (510) 580-9410 E-mail: yhuang.law@gmail.com AMBASSADOR GROUP: Del Obispo Seeks Rule 23 Class Certification -------------------------------------------------------------- In the class action lawsuit captioned as Del Obispo Youth Baseball, Inc. v. The Ambassador Group LLC et al., Case No. (), the Plaintiff asks the Court to enter an order granting motion for class certification pursuant to Federal Rule of Civil Procedure 23. Ambassador Group specializes in the captive insurance marketplace. A copy of the Plaintiff's motion to certify class dated Sept. 1, 2022 is available from PacerMonitor.com at https://bit.ly/3qBKWv6 at no extra charge.[CC] The Plaintiff is represented by: Michael F. Ram, Esq. Marie N. Appel, Esq. Ra O. Amen, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Telephone: (415) 358-6913 Facsimile: (415) 358-6293 E-mail: mram@forthepeople.com mappel@forthepeople.com ramen@forthepeople.com - and - Gretchen M. Nelson, Esq. Gabriel S. Barenfeld, Esq. NELSON & FRAENKEL LLP 601 S. Figueroa Street., Suite 2050 Los Angeles, CA, 90017 Telephone: (213) 622-6469 Facsimile: (213) 622-6019 E-mail: gnelson@nflawfirm.com gbarenfeld@nflawfirm.com AMERICAN GENERAL: Dickson Appeals Remand Order to Tex. Supreme Ct. ------------------------------------------------------------------ ANNA DICKSON filed on August 29, 2022, a petition - which was assigned case number 22-0730 - asking the Supreme Court of Texas to review the judgment of the United States Court of Appeals for the Ninth Circuit in the case captioned as Anna Dickson, Petitioner vs. American General Life Insurance Company, Case No. 21-00029. The Plaintiff, individually and on behalf of all others similarly situated, brought this class action suit against the Defendant for alleged fraud, malicious action, gross negligence, fund conversion, breach of contract, violation of the Texas Insurance Code, breach of its duty of good faith and fair dealing, and unjust enrichment by failing to pay the full benefits, including the interest she was owed, on the insurance policy bought by her father, Robert L. Damrel, from the date that Mr. Damrel's death was entered into the Social Security Administration's Death Master File. The Defendant filed an appeal to the United States Court of Appeals for the Ninth Circuit from a trial court ruling granting the Plaintiff's motion for a class action certification consisting of two equitable claims, the first a claim for money had and received and another for unjust enrichment. On July 14, 2022, the 9th Circuit ruled that the Plaintiff failed to establish the class was maintainable based on the predominance requirement in Rule 42(b)(3). Accordingly, the 9th Circuit reversed the trial court's order and remanded the case to the trial court for further proceedings consistent with its opinion. [BN] Plaintiff-Petitioner ANNA DICKSON, individually and on behalf of all others similarly situated, is represented by: Gary Neale Reger, Esq. Jack Carroll, Esq. Gilbert I. "Buddy" Low, Esq. ORGAIN BELL & TUCKER, LLP 470 Orleans Street P.O. Box 1751 Beaumont, TX 77704 Telephone: (409) 838-6412 Facsimile: (409) 838-6959 - and - Wayne Reaud, Esq. REAUD, MORGAN, & QUINN LLP Galleria Tower I, 2700 Post Oak Blvd., Suite 1120 Houston, TX 77056 Telephone: (409) 838-1000 Facsimile: (409) 833-8236 E-mail: wreaud@rmqlawfirm.com - and - Larry De-Wayne Layfield, Esq. LAW OFFICE OF L. DE-WAYNE LAYFIELD PLLC P.O. Box 3829 Beaumont, TX 77704 Telephone: (409) 832-1891 - and - Clint W. Lewis, Esq. THE LEWIS LAW FIRM 8445 Gladys Ave. Beaumont, TX 77706 Telephone: (409) 899-5600 Defendant-Respondent AMERICAN GENERAL LIFE INSURANCE COMPANY is represented by: David T. McDowell, Esq. Kendall Burr, Esq. MCDOWELL HETHERINGTON LLP 1001 Fannin Street, Suite 2700 Houston, TX 77002 Telephone: (713) 337-5582 Facsimile: (713) 337-8842 E-mail: david.mcdowell@mhllp.com - and - Gilbert Timbrell Adams III, Esq. GILBERT ADAMS LAW OFFICES P.O. Box 3688 Beaumont, TX 77704 Telephone: (409) 835-3000 BELLA MIA: Hernandez Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Bella Mia, LLC. The case is styled as Janelys Hernandez, on behalf of herself and all others similarly situated v. Bella Mia, LLC, Case No. 1:22-cv-07757 (S.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bella Mia -- https://www.bellamiaonline.com/ -- is an online boutique offering beautiful, stylish, and affordable clothing in all sizes and with a variety of accessories.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com BILMAR BEACH: Gregorian Sues Over Unsolicited Telephonic Calls -------------------------------------------------------------- John Gregorian, individually and on behalf of all, others similarly situated v. BILMAR BEACH RESORT, Case No. 22-004391-CI (Fla. 6th Judicial Cir. Ct., Pinellas Cty., Sept. 10, 2022), is brought under the Florida Telephone Solicitation Act as a result of the Defendant's unsolicited telephonic sales calls. To solicit the sale of a consumer good or service; obtain information that would or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes; and to promote its consumer goods and services, Defendant engages in telephonic sales calls to consumers without having secured prior express written consent as required by the FTSA. The Defendant’s telephonic sales calls have caused Plaintiff and the Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy. Through this action, the Plaintiff seeks an injunction and statutory damages and any other available legal or equitable remedies resulting from the unlawful actions of the Defendant, says the complaint. The Plaintiff is a citizen and resident of Florida. The Defendant directs, markets, and provides business activities throughout the State of Florida.[BN] The Plaintiff is represented by: Zachary Z. Zermay, Esq. ZERMAY LAW, P.A. 203 Labelle Avenue Fort Myers, FL 33905 Phone: 239-699-3107 Email: zach@zermaylaw.com BROWER COLLEGE: Fla. Dist. App. Affirms Final Judgment in CCI Suit ------------------------------------------------------------------ In the case, CONSTRUCTION CONSULTING, INC., Appellant v. THE DISTRICT BOARD OF TRUSTEES OF BROWARD COLLEGE, Appellee, Case No. 4D21-3104 (Fla. Dist. App.), the District Court of Appeal of Florida for the Fourth District affirms the final judgment entered in favor of the College after the trial court granted the College's motion for summary judgment. The case arises out of a construction contract between College and Construction Consulting, Inc. ("CCI") and the College. The CCI were parties to a construction contract (the "Master Contract") dated May 23, 2012. The Master Contract refers to CCI as the "Construction Manager" and to the District Board of Trustees of Broward College as the "Owner." Article 14 of the Master Contract, entitled "Payment to Construction Manager," governs pay requests by CCI. Significantly, as it concerns a point raised by CCI, the Master Contract did not prohibit the collection of statutory interest for late payments. Between 2012 and 2014, the College hired CCI to work on numerous construction projects pursuant to the Master Contract. Among those projects were the following: (1) North Campus Building 49 Site Drainage; (2) ADA Hardware Project; and (3) Central Campus Building 6 Sound Booth Project (the "Sound Booth project"). On July 29, 2013, the College executed a purchase order for CCI to perform the Sound Booth project. Susanne Valdes was the College's project manager for this project. Subsequently, the parties corresponded regarding payment applications submitted by CCI on the project. By letter dated April 25, 2014, Valdes wrote to CCI that "effective immediately we are terminating your agreement for the Building 6 Sound Booth project due to lack of response." She added that "we have not heard back from you on a plan to complete the work." She also noted that the College had rejected Payment Application #3 "due to an incomplete submittal." The next day, April 26, 2014, CCI's principal, Thomas Carney, notified Valdes via email that CCI had "stopped all work" and was "preparing a final invoice." By letter dated July 23, 2014, Valdes wrote that she was placing CCI "on notice due to you not responding to Broward College in a timely manner" regarding payment applications, and that CCI had "not met the terms" in the Master Contract. On Sept. 3, 2014, Carney met with the College's Vice President of Operations to discuss the parties' dispute. By letter dated Sept. 15, 2014, CCI sent the College summaries of open and recently completed projects. The summaries listed the payment draws for each project, whether the draw was paid or unpaid, and the number of days the draw was unpaid. With respect to the Sound Booth project, CCI claimed that "we achieved substantial completion and a Temporary Certificate of Occupancy on the project on August 28, 2013." The payment summary for the Sound Booth project listed five draws, including two paid draws, for a total of $101,819.07 (counting only the latest submission for each draw). According to one of Carney's affidavits, CCI also made "specific claims for interest" in an October 2014 meeting with the Vice President of Operations. The Architect for the Sound Booth project reviewed CCI's September 2014 submission and advised the College that his assessment of the completed contract amount was $88,465.83, as opposed to the $101,819.07 claimed by CCI, representing a difference of $13,353.24. On June 1, 2015, the College mailed CCI a Reconciliation Report, together with three checks. The Transmittal cover of the Reconciliation Report was addressed to "Mr. Tom Carney, Construction Consulting, Inc." at CCI's corporate address. For the North Campus Building 49 Site Drainage project, the Reconciliation Report identifies a "Final Payment" of $73,341.92. For the ADA Hardware project, it specifies a "Final Payment" of $83,053 and notes that the project "was reassigned and completed by another continuing services CM at Risk." For the Sound Booth project, the Reconciliation Report identifies a "Final Payment" of $8,846.59 and notes that "CCI did not complete the scope of work for this project." The Reconciliation Report offered the following "Final Resolution for payments to CCI": Building 49 Site (Pay balance in full) $73,341.92 ADA Hardware (Pay balance in full) $91,264.13 Sound Booth (Pay Architect-approved amt.) $8,846.59. Total recommended amount to be Paid by BC is $165,241.34. The Reconciliation Report did not offer any payment for statutory interest. The Reconciliation Report also includes a "Final Payment" chart that lists "Construction Consulting Inc" at the top. The chart sets forth the "TOTAL PAID" for each project, the "Amount on check" applicable to each invoice, and the "Check Number" and "Check Date" applicable to each invoice. The bottom of the chart states "FINAL PAYMENT TO CCI" of $165,241.34. Enclosed with the Reconciliation Report were: (1) a check for $82,748.31; (2) a check for $72,879.76; and (3) a check for $9,613.27. The three checks totaled $165,241.34, which corresponded with the total "Final Payment" detailed in the Reconciliation Report. The checks themselves contained no "Payment in Full" language. On June 6, 2015, CCI received the Reconciliation Report and the checks. Two days later, CCI deposited the checks. By letter dated June 19, 2015, CCI acknowledged that the College forwarded "the recent payments for construction work we completed in 2013 and 2014," and further acknowledged that they are in receipt of the reconciliation report for CCI. It disputed the Architect's "rationale for cutting the payments by $12,781." CCI also complained about the College's "lack of prompt payments," asserting that "there remains a claim for interest in accordance with Florida Statue 218.735." It attached an invoice for the amount CCI claimed was due "for Broward College not making timely payments for our construction services." After the College refused to pay additional funds, CCI filed suit. It amended its complaint multiple times during the litigation, culminating in a Fourth Amended Complaint. Each iteration of the complaint asserted claims for violation of Chapter 218 (Count I), violation of Chapter 255 (Count II), declaratory judgment (Count III), writ of mandamus (Count IV), class action for interest owed (Count V), and breach of contract on the Sound Booth project (Count VI). Attached to an early version of the complaint was a spreadsheet detailing the interest CCI claimed it was owed for the College's late payments on over 100 invoices for multiple projects between 2010 and 2014. The College moved for partial summary judgment as to Counts I and II, arguing that the Local Government Prompt Payment Act and the Florida Prompt Payment Act were inapplicable to it. The predecessor judge granted the motion in part and denied it in part, ruling that the College "is a 'public entity' under Florida Statutes, Section 255, but is not a 'local governmental entity' under Florida Statutes, Section 218." Consistent with this partial summary judgment order, the trial court ultimately dismissed Count I of the Fourth Amended Complaint. And, consistent with earlier rulings on the College's motions to dismiss, the trial court also dismissed Counts III, IV, and V of the Fourth Amended Complaint. The trial court denied leave to file a Fifth Amended Complaint. Meanwhile, the College moved for final summary judgment, arguing in relevant part that CCI waived and released all claims by accepting Final Payment. The predecessor judge ruled that there was a "factual question" as to whether CCI had received the Reconciliation Report, so he denied the College's motion for final summary judgment "as to the affirmative defense of accord and satisfaction," while granting the motion in part as to several other issues. After much skirmishing in discovery, Carney admitted in a deposition that CCI received the Reconciliation Report along with the checks it later cashed. The College renewed its motion for summary judgment. The successor judge, Judge Rodriguez, granted the motion as to the two remaining counts of the Fourth Amended Complaint. The court concluded that the "undisputed facts mandate that summary judgment be entered for Broward College based on accord and satisfaction per the terms of the Master Contract, under which acceptance of Final Payment constituted an unconditional waiver and release of all claims by CCI for additional compensation beyond that provided in the Final Payment." The court then entered final judgment in favor of the College, prompting this appeal. On appeal, CCI raises issues concerning the application of the Prompt Payment Act, the language of the Master Contract and the Reconciliation Report, and the existence of jury questions, which would preclude summary judgment. The College responds that CCI accepted Final Payment, thus waiving and releasing all claims. It maintains that all of CCI's claims are barred by the doctrine of accord and satisfaction and by the plain terms of the Master Contract, under which acceptance of Final Payment constituted "an unconditional waiver and release of all claims." The District Court of Appeal holds that the trial court properly entered summary judgment in favor of the College because CCI's claims were barred by both the common law doctrine of accord and satisfaction and the plain language of the Master Contract, which states that "acceptance of Final Payment will constitute an unconditional waiver and release of all claims by CCI for additional compensation beyond that provided in the Final Payment." There is no genuine dispute of any material fact. There is no genuine dispute that CCI received the Reconciliation Report with the checks, and that CCI accepted Final Payment by depositing the checks in its bank account. That the checks themselves contained no restrictive endorsement is of no moment because they were accompanied by the Reconciliation Report, which plainly offered the checks as Final Payment—a defined term in the Master Contract that effectuated a waiver and release of all claims. Thus, under either the doctrine of accord and satisfaction or the Master Contract's unconditional waiver clause, CCI's acceptance of Final Payment constituted a waiver and release of all claims for additional compensation and gave rise to a final resolution of all disputed invoices, including claims for statutory interest. The District Court of Appeal rejects CCI's arguments in opposition to accord and satisfaction and waiver. It says the College made an offer of Final Payment to CCI intended as a "final agreement" between the parties "to reconcile final payment due to CCI for outstanding invoices." CCI accepted the offer of Final Payment by depositing the checks, thereby barring CCI's claims under the doctrine of accord and satisfaction or alternatively under the unconditional waiver clause of the Master Contract. Finally, the District Court of Appeal affirms the dismissal of Counts III, IV, and V. Even if the declaratory judgment count had been properly pleaded, any error in dismissing that count was harmless, as the summary judgment effectively declared CCI's rights under the Master Contract and the Prompt Payment Act. The trial court properly dismissed the mandamus count because there was an adequate remedy at law, namely, an action for damages. As to the class action count, the Fourth Amended Complaint failed to allege sufficient facts to show that all four prerequisites to class certification were satisfied. Also, CCI had ample opportunity to employ discovery to ascertain the necessary information that must be pleaded. The District Court of Appeal concludes that the College offered a final payment to cover outstanding invoices. CCI accepted the payment, thus barring its later claims under both the common law doctrine of accord and satisfaction and a waiver clause in the contract. Accordingly, it affirms. A full-text copy of the Court's Sept. 7, 2022 Order is available at https://tinyurl.com/2p92excs from Leagle.com. Kenneth D. Cooper -- kcooper543@aol.com -- Fort Lauderdale, for the Appellant. Joseph W. Jacquot -- jjacquot@gunster.com -- Jonathan K. Osborne -- josborne@gunster.com -- and Lawrence G. Horsburgh -- lhorsburgh@gunster.com -- of Gunster, Jacksonville, for the Appellee. CALIFORNIA: Wilson's Class Cert. Bid Should Be Denied, Judge Says ----------------------------------------------------------------- In the lawsuit entitled DAVID WAYNE WILSON, Plaintiff v. GABINO MERCADO, et al., Defendants, Case No. 1:22-cv-00278-ADA-SAB (PC) (E.D. Cal.), Magistrate Judge Stanley B. Boone of the U.S. District Court for the Eastern District of California issued a Findings and Recommendation recommending that the Plaintiff's motion for class certification be denied. Plaintiff David Wayne Wilson is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. Section 1983. The action is proceeding on the Plaintiff's unconstitutional conditions of confinement claim against Defendants Mercado and Taylor and the Plaintiff's retaliation claim against Defendant Mercado. On Aug. 30, 2022, the Court granted the Defendants' request to extend the time to file a responsive pleading which is currently due on Dec. 5, 2022. District courts in this circuit can provisionally certify a class for the purposes of a preliminary injunction, Judge Boone notes, citing Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4 (9th Cir. 2020). Pursuant to Rule 23 of the Federal Rules of Civil Procedure, a party seeking class certification must establish the following prerequisites: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. If these four prerequisites--commonly referred to as numerosity, commonality, typicality, and adequacy--are satisfied, then the party seeking class certification must also satisfy one of the three subsections of Rule 23(b). The Plaintiff seeks class certification under Rule 23(b)(2), which requires a showing that the Defendant "has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." One of the prerequisites for a class action is that "the representative parties will fairly and adequately protect the interests of the class," Fed. R. Civ. P. 23(a)(4). A class action may not be certified where the representative parties are without counsel. Here, Plaintiff is proceeding pro se and this case, therefore, cannot be certified as a class action unless counsel is appointed, Judge Boone holds. Judge Boone explains that it is well established that a layperson cannot ordinarily represent the interests of a class, citing McShane v. United States, 366 F.2d 286 (9th Cir. 1966). This rule becomes almost absolute when, as here, the putative class representative is incarcerated and proceeding pro se. In direct terms, the Plaintiff has not shown that any of the prospective co-plaintiffs can "fairly and adequately protect the interests of the class" as required by Fed. R. Civ. P. 23(a)(4), Judge Boone points out. The Court declines to appoint counsel and certify a class because the Plaintiff has not shown that the four prerequisites to a class action under Rule 23(a) of the Federal Rules of Civil Procedure, that is, numerosity, typicality, commonality, and adequacy of representation, are met in this case. His motion for class certification should, therefore, be denied. Based on the foregoing, it is recommended that the Plaintiff's motion for class certification, filed on Aug. 31, 2022, be denied. Judge Boone says this Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. Section 636(b)(l). Within 14 days after being served with this Findings and Recommendation, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. A full-text copy of the Court's Findings and Recommendation dated Sept. 1, 2022, is available at https://tinyurl.com/k4xjh3xj from Leagle.com. CAPITAL ONE BANK: Melchor Sues Over Unlawful Use of Voice Prints ---------------------------------------------------------------- Ashley Melchor, Cecelia Lahr, Ryan Childers, Ali Khosooi and Joan Wright, individually and on behalf of others similarly situated v. CAPITAL ONE BANK (USA), N.A., Case No. 3:22-cv-01371-RBM-BLM (S.D. Cal., Sept. 11, 2022), is brought against the Defendant put a stop to its unlawful use, examination, and recording of Plaintiffs' and putative Class members' biometric voice prints in violation of the California Invasion of Privacy Act ("CIPA"). The Defendant utilizes a system that enables it to examine the voice of anyone that calls it to determine the truth or falsity of the callers' statements. The software combines audio, voice, and artificial intelligence technologies to compare the callers’ voices to a comprehensive database of recordings and metrics. The system Defendant uses allows it to authenticate or refute the true identity of callers, among other things. The system contains voice recognition software that creates a biometric voice print of each caller. The system then allows Defendant to analyze the callers’ voice prints to determine the truth or falsity of their statements. Through using AWS, or Amazon Web Services, the Defendant has Amazon Connect Voice ID which enables the Defendant to perform real-time caller authentication and fraud risk detection using ML-powered voice analysis. Amazon Connect Voice ID "analyzes speech attributes like rhythm, pitch, and tone to create a digital voiceprint." The Defendant then "analyzes incoming audio and compares them with recordings. The Defendant does not obtain "express written consent"--or any consent--from any callers before examining and analyzing their voices. Recognizing the need to protect its residents from situations like these, California enacted the CIPA, to regulate entities that examine or record California residents’ voice prints or voice stress patterns without obtaining the residents’ express written consent first. Despite this law, Defendant disregards California residents' statutorily protected privacy rights and unlawfully examines or records their voices in violation of CIPA. Specifically, the Defendant has violated (and continues to violate) CIPA because it uses a system which examines or records California residents' "voice prints or voice stress patterns to determine the truth or falsity of statements" without their express written consent, says the complaint. The Plaintiffs are natural persons and residents of the State of California. The Defendant is a federally chartered bank with its principal place of business located outside of California.[BN] The Plaintiffs are represented by: Joshua B. Swigart, Esq. SWIGART LAW GROUP, APC 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Phone: 866-219-3343 Email: Josh@SwigartLawGroup.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Phone: 619-222-7429 Email: DanielShay@TCPAFDCPA.com CELLULAR SALES: $577K Attorneys' Fees Award in Holick Suit Affirmed ------------------------------------------------------------------- In the case, JAN P. HOLICK, JR., on behalf of themselves and all others similarly situated, STEVEN MOFFITT, on behalf of themselves and all others similarly situated, JUSTIN MOFFITT, on behalf of themselves and all others similarly situated, GURWINDER SINGH, on behalf of themselves and all others similarly situated, JASON MACK, on behalf of themselves and all others similarly situated, TIMOTHY M. PRATT, on behalf of themselves and all others similarly situated, WILLIAM BURRELL, Plaintiffs-Appellees v. CELLULAR SALES OF NEW YORK, LLC, CELLULAR SALES OF KNOXVILLE, INC., Defendants-Appellants, Docket No. 21-948-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirms the March 15, 2021 order of the U.S. District Court for the Northern District of New York (Stewart, M.J.) granting attorney's fees of $576,870.30 to the Plaintiffs. Cellular Sales of New York, LLC and Cellular Sales of Knoxville, Inc. (collectively "Cellular") appeal from the March 15, 2021 order of the district court granting attorney's fees of $576,870.30 to Plaintiffs Jan Holick, Steven Moffitt, Justin Moffitt, Gurwinder Singh, Jason Mack, William Burrell, and Timothy Pratt. The parties reached a settlement on the merits claims, leaving only the issue of the attorney's fee award to be settled on appeal. Cellular argues that (1) the district court abused its discretion in finding that the Plaintiffs' successful minimum wage and overtime claims were sufficiently intertwined with their unsuccessful unfair wage deduction, unpaid compensable work, and untimely commissions claims under the Fair Labor Standards Act ("FLSA") and New York Labor Law; and (2) regardless of whether the claims were intertwined, that the district court abused its discretion in reducing the attorney's fees award by only 40% given the Plaintiffs' relative lack of success. The Plaintiffs were owners of companies that sold cellular service plans and devices to customers through contracts with Cellular, an authorized Verizon Wireless dealer that operates retail stores in upstate New York. Cellular paid the Plaintiffs commissions for every cellular service plan they sold. However, if a customer cancelled their cell service plan within 180 days of purchasing it, then Cellular would deduct the sale from its following check to the Plaintiffs. The Plaintiffs were not paid an hourly wage or a salary. The Plaintiffs brought a class action complaint against Cellular for unfair wage deductions, unpaid compensable work, untimely commissions, unjust enrichment, and failure to pay minimum wage and overtime under the FLSA and New York Labor Law. Essentially, they claim that the Defendants misclassified them as independent contractors instead of employees as defined by the FLSA and New York Labor Law, thus depriving them of employee benefits required by law. The Plaintiffs sought more than $4 million in class damages, and roughly $700,000 in damages for the named Plaintiffs. In April 2019, the district court denied the Plaintiffs' motion for class certification. The Plaintiffs appealed the district court's decision. They then moved for partial summary judgment and Cellular cross-moved for summary judgment. The district court denied the Plaintiffs' motion in full, and granted Cellular's motion as to the Plaintiffs' claims for wage deductions, untimely commissions, and unpaid compensable work. It found questions of material fact as to whether the Plaintiffs were employees or independent contractors under the FLSA and New York Labor Law, as well as on the minimum wage and overtime claims. Id. The case proceeded to a bench trial. The district court determined that the Plaintiffs were employees of Cellular and granted them judgment of $11,121 for unpaid minimum wages and overtime, plus liquidated damages and prejudgment interest. Cellular appealed from the district court's decision. While the merits appeals were pending, the district court proceeded to the issue of fees and costs, to which the Plaintiffs were entitled as the prevailing party. The Plaintiffs sought $961,450 in attorney's fees and costs of $46,065. The district court noted that "the degree of success obtained by the Plaintiff" was "the most critical factor" in determining reasonable attorney's fees. Cellular argued that the fee needed to be drastically reduced, in relevant part, because the Plaintiffs were unsuccessful on their unlawful wage deduction, untimely commission and compensable work claims. The district court disagreed, finding that the unsuccessful claims were inextricably intertwined with the successful claims. It agreed with Cellular that the unjust enrichment claim voluntarily dismissed by the Plaintiffs was not intertwined, and deducted the time billed for that claim. The district court granted the Plaintiffs $576,870.30 in attorney's fees to them -- a roughly 40% deduction from the amount the Plaintiffs initially sought. The appeal followed. Shortly before oral argument took place in the appeal, the parties, with the help of the Second Circuit mediation program, reached an agreement to settle the pending merits appeals. The parties stipulated to conditional certification of collective actions, and provided for payments to 41 opt-in plaintiffs. Cellular agreed to pay the Plaintiffs and opt-in plaintiffs a maximum of $89,710.61. The parties were unable to settle their dispute as to the attorney's fee award. First, Cellular challenges the district court's finding that the successful and unsuccessful claims were intertwined. It argues that the successful claims and unsuccessful claims were not intertwined because the only common legal issue is whether the Plaintiffs were employees or independent contractors; and the elements for each of the claims do not overlap. For the minimum wage and overtime claims, Cellular argues that the elements involve an employment relationship, FLSA coverage, and what hours the Plaintiffs worked for which they did not receive minimum wage or overtime pay. The Second Circuit holds that the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) noted that unrelated claims were likely to be uncommon, and that most civil rights claims will involve a common core of facts, or be grounded in related legal theories, or both. The Plaintiffs brought wage-and-hour statutory claims that clearly arise from a common nucleus of operative fact regarding their time working for Cellular. Given the common facts involved, the district court's finding that the discovery involved in litigating the unpaid overtime wage claims is inseparable from the discovery involved in the unfair wage deductions, unpaid compensable work, or untimely commissions claims is well supported. Cellular next argues in the alternative that even if the claims are intertwined, a 40% reduction in fees is insufficient given that Plaintiffs won but a fraction of what they originally sought. Based on the record, the Second Circuit cannot say that the district court abused its discretion by declining to reduce the fee award further to account for the Plaintiffs' lack of success on several of their individual claims. It finds that the district court was well aware of the Plaintiffs' lack of success -- it noted that the Plaintiffs were not able to achieve a class action or class certification, and that they received just a fraction of the damages sought. It observed that the Plaintiffs' estimate that roughly 18% of the fee sought was "devoted exclusively" to pursuing class and collective certification was likely low, because "it is not clear" that estimate "fully encompassed all requested fees related to the broader collective and class action components of the case." Taking the lack of success and other factors into consideration, the district court then reduced the requested fee by 40%. A fuller explanation of exactly how it arrived at a 40% reduction would have benefited both the parties and the Second Circuit, but it cannot be said that the district court exceeded the bounds of its discretion in reaching its conclusion. Finally, the Second Circuit notes that shortly before oral argument, the parties entered into a settlement agreement resolving the merits appeals, which resulted in 41 opt-in plaintiffs being eligible for awards. The named and the opt-in Plaintiffs are to share in up to $89,710,61 -- an increase from the district court's award of $11,121. At oral argument, the panel asked whether this development required a remand to the district court, suggesting that the improved result might bolster the district court's original decision -- or even lead to a greater fee award. The Plaintiffs' counsel urged against remand, stating he was satisfied with the fee award as it stood. When the facts implicating a decision shift, it is customary to remand for the district court to consider the new landscape. The Plaintiffs' reluctance to return to district court is understandable given that the case began in April 2012. Both sides litigated the issues fiercely, resulting in motions to dismiss, to certify, to decertify and for summary judgment, followed by a bench trial. Three appeals were taken, and the two related to the merits were only settled during the appellate process. Moreover, with Cellular proposing a drastically reduced fee award of $50,000, a remand seems likely to generate further motion practice and a second appeal. The Plaintiffs are willing to forgo a possibly higher fee in exchange for peace. For these reasons, the Second Circuit declines to remand. For the reasons given, the Second Circuit affirms. A full-text copy of the Court's Sept. 7, 2022 Order is available at https://tinyurl.com/bd62y96f from Leagle.com. C. LARRY CARBO, III -- larry.carbo@chamberlainlaw.com -- Chamberlain, Hrdlicka, White, Williams & Aughtry, P.C. (Julie R. Offerman -- julie.offerman@chamberlainlaw.com -- on the brief), Houston, TX, for the Appellants. RONALD G. DUNN, Gleason, Dunn, Walsh & O'Shea, Albany, NY, for the Appellees. CHEGG INC: Motley & Saxena Named Lead Co-Counsel in Leventhal Suit ------------------------------------------------------------------ In the case, STEVEN LEVENTHAL, Plaintiff v. CHEGG, INC., et al., Defendants, Case No. 5:21-cv-09953-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, grants KBC Asset Management and The Pompano Beach Police & Firefighters' Retirement System's Motion for Appointment as Lead Plaintiff and Approval and Selection of Lead Counsel. Before the Court in the securities class action are six motions to appoint lead plaintiff and select lead counsel. Leventhal brings this securities fraud class action pursuant to Sections 10(b) and 20(a) of Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b) and 78t(a), and Securities and Exchange Commission ("SEC") Rule 10b-5, 17 C.F.R. Section 240.10b-5, individually and on behalf of all other purchasers of Chegg common stock between May 5, 2020 and November. Chegg is a learning platform that provides educational resources and online research tools to its subscribers, including online tutoring, study materials, textbook rentals, and other educational products. During the Covid-19 pandemic, it experienced a substantial increase in subscribers, growth, and revenue. The Plaintiff asserts that Chegg's stock price artificially inflated and Chegg allegedly took advantage of these inflated prices to sell more than $1 billion in common stock for $102 per share at a second offering in February 2021. The Complaint alleges that Chegg made materially false and misleading statements during the Class Period about the primary contributors to the company's significant success. Chegg allegedly attributed its growth at this time to its strong business model and business acumen rather than to the Covid-19 pandemic and subsequent increase in remote learning. On Nov. 1, 2021, Chegg released its financial results, which revealed a 50% stock price plummet from $62 per share to $32 per share. The class action followed. On Feb. 22, 2022, nine motions for appointment of lead plaintiff and approval of selection of counsel were filed. Three movants subsequently withdrew their motions. Presently, there are six motions before the Court filed by: (1) the Ohio Carpenters Pension Fund; (2) Nicolas Reiter; (3) KBC Asset Management NV and the Pompano Beach Police & Firefighters' Retirement System ("KBC and Pompano P&F") ("KBC-Pompano Motion"); (4) David Kennedy; (5) North Atlantic States Carpenters Pension Fund and Guaranteed Annuity Fund ("North Atlantic Funds") ("NAF Motion"); and (6) Randy Myles. Movants Ohio Carpenters, Kennedy, and Reiter have filed notices of non-opposition to competing motions for appointment of lead plaintiff and approval of lead counsel. The two movants with the largest financial interests, KBC and Pompano P&F and North Atlantic Funds, have filed briefs in opposition to competing lead plaintiff motions. Judge Davila explains that pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4(a)(3)(B)(ii), the Court "will appoint the most adequate plaintiff as lead plaintiff" in a consolidated action. There is a "simple three-step process" to identify a lead plaintiff. The first step consists of publicizing the pendency of the action, the claims made and the purported class period. Next, the Court considers which plaintiff has the highest financial stake. Finally, the third step of the process is to give other plaintiffs an opportunity to rebut the presumptive lead plaintiff's showing that it satisfies Rule 23's typicality and adequacy requirements. Judge Davila finds that the parties do not dispute that notice has been published and KBC and Pompano P&F satisfies the procedural requirements. He also finds that KBC and Pompano P&F purchased the most shares of Chegg, totaling 119,510 shares, and expended over $5.4 million in net funds in Chegg stock during the Class Period. Accordingly, as the movants with the largest financial stake, KBC and Pompano P&F are the "presumptive" plaintiff. He further finds that KBC and Pompano P&F have made prima facie showing of typicality because it alleged loss as a result of purchasing Chegg securities during the Class Period at prices that were "artificially inflated" by the Defendant's materially false and misleading statements or omissions, and the inflated stock prices fell after Defendant made corrective disclosures. For the final step, other plaintiffs are given an opportunity to rebut the presumptive lead plaintiff's showing that it satisfies Rule 23's typicality and adequacy requirements. Judge Davila says North Atlantic Funds asserts that KBC and Pompano P&F cannot be appointed lead plaintiff because it is subject to a "standing defenses which preclude the prima facie finding of typicality and adequacy." In consideration of the parties' submissions and oral argument, he finds that Funds' assignment of its claims to KBC in this matter is facially valid. Accordingly, he KBC and Pompano P&F's motion for appointment of lead plaintiff. Lastly, Judge Davila holds that KBC and Pompano P&F has made a sufficient showing of adequacy. They selected Motley Rice LLC and Saxena White P.A. to jointly serve as lead counsel for the class. These firms are both highly qualified and experienced in securities class litigation. Furthermore, Motley Rice has previously served as lead counsel in securities class actions in this district with KBC as lead plaintiff. Accordingly, he grants KBC and Pompano P&F's motion for appointment of lead counsel. For the foregoing reasons, Judge Davila appoints KBC and Pompano P&F as the Lead Plaintiff, and appoints the law firms of Motley Rice LLC and Saxena White P.A. to serve as the Lead Co-Counsel. He denies all competing motions for the appointment of lead plaintiff and lead counsel. No motion, request for discovery, or other pretrial proceedings will be initiated or filed by any Plaintiff without the approval of the Lead Counsel, so as to prevent duplicative pleadings or discovery by the Plaintiffs. No settlement negotiations will be conducted without the approval of the Lead Counsel. The counsel in any related action that is consolidated with the action will be bound by the organization of the Plaintiffs' counsel. The Lead Counsel will have the responsibility of receiving and disseminating Court orders and notices. The Lead Counsel will be the contact between the Plaintiffs' counsel and the Defendants' counsel, as well as the spokesperson for the Plaintiffs' counsel, and will direct and coordinate the activities of the Plaintiffs' counsel. The Defendants will effect service of papers on the Plaintiffs by serving a copy of same on the Lead Counsel. The Plaintiffs will effect service of papers on defendants by serving a copy of same on the Defendants' counsel. During the pendency of the litigation, or until further order of the Court, the parties will take reasonable steps to preserve all documents within their possession, custody, or control, including computer-generated and stored information, and materials, containing information which is relevant or which may lead to the discovery of information relevant to the subject matter of the pending litigation. A full-text copy of the Court's Sept. 7, 2022 Order is available at https://tinyurl.com/2wu3jd5n from Leagle.com. CITY OF MALDEN: Appeals Judgment on Wage Act Claim in Owens Suit ---------------------------------------------------------------- CITY OF MALDEN is taking an appeal from a court judgment regarding the Plaintiffs' Massachusetts Wage Act claim in the lawsuit entitled Jack Owens, et al., Plaintiffs, v. City of Malden, Defendant, Case No. 1:19-cv-11835-WGY, in the U.S. District Court for the District of Massachusetts. The Plaintiffs, individually and on behalf of all others similarly situated, filed a class action suit against the Defendant for violations of the Fair Labor Standards Act (FLSA) and the Massachusetts Wage Act. On February 15, 2022, District Judge William G. Young dismissed the FLSA claim as to all Plaintiffs without prejudice for failure to establish individual FLSA eligibility. On May 16, 2022, the Plaintiffs submitted a proposed final judgment regarding City of Malden's violation of the Mass. Wage Act, which the Defendant opposed on June 16, 2022. On July 28, 2022, the Court entered judgment on the remaining Wage Act claim in favor of the Plaintiffs in the amount of $7,538,815.28 in trebled damages and $812,555.82 in prejudgment interest. The appellate case is captioned as Owens, et al., v. City of Malden, Case No. 22-1674, in the United States Court of Appeals for the First Circuit, filed on August 26, 2022. The briefing schedule in the Appellate Case states that: -- Appearance form, Docketing Statement and Transcript Report/Order form were due on September 9, 2022. [BN] Plaintiffs-Appellees JACK OWENS, et al., on behalf of themselves and all others similarly situated, are represented by: Joseph Adam Padolsky, Esq. LOUISON COSTELLO CONDON & PFAFF LLP 10 Post Office Sq., Ste. 1330 Boston, MA 02109 Telephone: (617) 439-0305 Defendant-Appellant CITY OF MALDEN is represented by: Timothy J. Buckley, Esq. Barry J. Miller, Esq. Alison Silveira, Esq. SEYFARTH SHAW LLP 2 Seaport Ln., Ste. 1200 Boston, MA 02210-2028 Telephone: (617) 946-4800 - and - John J. Clifford, Esq. David K. Kouroyen, Esq. CLIFFORD & KENNY LLP 31 Schoosett St., Unit 405 Pembroke, MA 02359 Telephone: (781) 924-5796 CITY OF NEW YORK: Kane Appeals Suit Dismissal to 2nd Circuit ------------------------------------------------------------ MICHAEL KANE, et al., are taking an appeal from a court order granting the Defendants' motion to dismiss, and denying the Plaintiffs' motion for preliminary injunction, in the lawsuit entitled Michael Kane, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. Bill de Blasio, et al., Defendants, Case No. 21-cv-7863, in the U.S. District Court for the Southern District of New York. The Plaintiffs, on behalf of themselves and similarly situated teachers, administrators, and other Department of Education (DOE) staff, brought this class action suit against the Defendants for alleged violation of their religious freedoms guaranteed by the First Amendment of the U.S. Constitution by requiring all DOE staff to provide proof of vaccination against COVID-19 as a condition of continued employment. On February 14, 2022, the Defendants filed a motion to dismiss the Plaintiffs' complaint for failure to state a claim. The Plaintiffs likewise filed a motion for preliminary injunction. On August 26, 2022, the Court granted the Defendants' motion to dismiss and denied the Plaintiffs' motion for preliminary injunction. The Court found no violation of a Constitutional right. The Court held that the Plaintiffs have not stated a claim and therefore have not demonstrated a likelihood of success on the merits. Moreover, the Plaintiffs have not demonstrated that the public interest weighs in their favor. The appellate case is captioned as Kane v. de Blasio, Case No. 22-1876, in the United States Court of Appeals for the Second Circuit, filed on August 29, 2022. [BN] Plaintiffs-Appellants MICHAEL KANE, et al., individually and on behalf of all others similarly situated, are represented by: Sujata Sidhu Gibson, Esq. GIBSON LAW FIRM, PLLC 832 Hanshaw Road, Suite A Ithaca, NY 14850 Telephone: (607) 327-4125 - and - Barry Black, Esq. NELSON MADDEN BLACK LLP 475 Park Avenue South, Suite 2800 New York, NY 10016 Telephone: (212) 382-4300 Defendants-Appellees BILL DE BLASIO, et al., are represented by: Sylvia Hinds-Radix, Esq. NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 Telephone: (212) 356-0800 CONAGRA BRANDS: Henderson Sues Over Deceptive Pancake Mix Labels ---------------------------------------------------------------- Cory Henderson, individually and on behalf of all others similarly situated, Plaintiff v. Conagra Brands, Inc., Defendant, Case No. 1:22-cv-07603-ALC (S.D.N.Y., Sept. 6, 2022) is a class action against the Defendant for fraud, unjust enrichment, and violations of the New York General Business Law, State Consumer Fraud Acts, and the Magnuson Moss Warranty Act. Conagra Brands manufactures, labels, markets, and sells pancake mix under the Log Cabin brand. The representation that the Product is "All Natural" is allegedly false and misleading because, among other reasons, it contains sodium bicarbonate, or baking soda. Additionally, though the product's front label states, "Made With Whole Grains" and it contains more whole than refined grains, it fails to disclose the percent of grains that are refined. Reasonable consumers, including Plaintiff, will be unaware that based on calculations from the ingredient list and Nutrition Facts, the estimated amount of whole grains slightly exceeds refined grains, says the suit. As a result of the false and misleading representations, the product is sold at a premium price, approximately no less than $3.89 for 794g, excluding tax and sales, higher than similar products represented in a non-misleading way, and higher than it would be sold for absent the misleading representations and omissions, the suit asserts. Conagra Brands, Inc. is an American consumer packaged goods holding company headquartered in Chicago, Illinois. Conagra makes and sells products under various brand names that are available in supermarkets, restaurants, and food service establishments.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 Facsimile: (516) 234-7800 E-mail: spencer@spencersheehan.com CONOCOPHILLIPS COMPANY: Galvan Sues Over Unpaid Overtime Wages -------------------------------------------------------------- Ademar Galvan, individually and for others similarly situated v. CONOCOPHILLIPS COMPANY, Case No. 2:22-cv-00214 (S.D. Tex., Sept. 12, 2022), is brought to recover unpaid overtime wages and other damages from the Defendant under the Fair Labor Standards Act. The Plaintiff regularly worked for the Defendant in excess of 40 hours each week. But the Defendant did not pay them overtime of at least one and one-half their regular rates for all hours worked in excess of 40 hours per workweek. Instead of paying overtime as required by the FLSA, the Defendant improperly classified the Plaintiff as an independent contractor ineligible for overtime, and paid them a day rate with no overtime compensation. This practice violates the overtime requirements of the FLSA. the Defendant's decision not to pay overtime compensation to the Plaintiff and the Putative Class Members was neither reasonable nor in good faith. Rather, the Defendant knowingly and deliberately failed to compensate the Plaintiff overtime of at least one and one-half their regular rates for all hours worked in excess of 40 hours per workweek, says the complaint. The Plaintiff worked for the Defendant from early 2019 until late 2021 as a Wellsite Manager. Conocophillips Company is a company engaged in the exploration and production of oil and natural gas.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Alyssa J. White, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Phone: 713-352-1100 Facsimile: 713-352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com awhite@mybackwages.com - and – Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: 713-877-8788 Facsimile: 713-877-8065 Email: rburch@brucknerburch.com COOKIES BY DESIGN: Hwang Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Rebecca Cookies by Design, Inc. The case is styled as Jenny Hwang, on behalf of herself and all others similarly situated v. Cookies by Design, Inc., Case No. 1:22-cv-05440-BMC (E.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Cookies by Design -- https://www.cookiesbydesign.com/ -- also known as Crumb Corps, LLC, formerly Cookie Bouquet, is a producer of handmade, hand-decorated cookies arranged into a decorative bouquet.[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 DESIGNER BRANDS: Compelled to Produce Witness in Laguardia Suit --------------------------------------------------------------- In the case, ERIC LAGUARDIA, et al., Plaintiffs v. DESIGNER BRANDS, INC., et al., Defendants, Case No. 2:20-cv-2311 (S.D. Ohio), Magistrate Judge Elizabeth A. Preston Deavers of the U.S. District Court for the Southern District of Ohio, Eastern Division, grants Plaintiff Nicole Austin's Motion to Compel Defendants to Produce Witness on Category 4 of the 30(b)(6) Deposition and for Continuance of the Discovery Cutoff Date. Plaintiffs Eric LaGuardia, Sophia Wingate, Lindsay Rucker, and Nicole R. Austin brought the class action suit against Defendants Designer Brands, Inc. and DSW Shoe Warehouse, Inc. pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Section 227. Plaintiffs LaGuardia and Austin assert Count II as a sub-class -- the "Do Not Call Registry Class" -- against the Defendants pursuant to 47 U.S.C. Section 227(c). The Plaintiffs allege that the Defendants "made thousands of unauthorized and illegal commercial text calls to wireless telephone numbers belonging to the Class." Further, they contend that "many of those class members had been previously registered on the National 'Do Not Call' Registry" and the class members were "registered on that list when they received DSW's wireless spam." On April 29, 2022, the Plaintiffs noticed the Defendants for a deposition under Federal Rule of Civil Procedure 30(b)(6), requesting the Defendants to "designate one or more employees to testify on their behalf concerning the deposition topics outlined in the deposition notice and its attachment, Schedule A." The Defendants produced one witness for the 30(b)(6) deposition, Nick Hughes, to testify "subject to the objections that were served on May 13, 2022, in response to the notice." Their witness did not testify on Category 4 of the deposition notice, which requested information about "the total number of Text Messages transmitted, the telephone numbers to which the Text Messages were transmitted, the names of the recipients of the Text Messages, and the dates on which the Text Messages were transmitted." After the deposition, the Parties met and conferred multiple times regarding the requested information, through telephone, email, and in-person meetings. With the Parties unable to compromise, Austin has moved for the Court to compel the Defendants to produce a witness for a 30(b)(6) deposition regarding Category 4 of the deposition notice, or in the alternative, to compel the Defendants to provide a declaration on the same subject matter. She also seeks recovery of costs associated with filing the subject Motion, including reasonable attorney fees, pursuant to Federal Rule of Civil Procedure 37(a)(5). The Defendants have opposed the Plaintiff's Motion, and the Plaintiff has filed a Reply in support of her request. Based on the Defendants' Objections to Category 4 of the Deposition Notice, the Plaintiff asserts that each objection was improper. She alleges that the information sought is relevant, is not a putative "class list," and is not "unduly burdensome" for the Defendants to provide. Regarding relevance, she contends that the "information is highly relevant to the Plaintiffs' claims, in particular to its motion for class certification -- even if the Defendants are not contesting the 'numerosity' element like they More specifically, the Plaintiff alleges that the information sought could help establish the other elements for class certification, including superiority and whether the class is ascertainable. She further asserts that they "should not have to guess what grounds for opposing class certification the Defendants will make." She notes that "while some of the deponents' testimony could be construed as an admission the class is ascertainable, defense counsel McTigue first stated the Defendants would stipulate that the class was ascertainable and then changed his mind and stated no such concession would be made." Pursuant to Rule 37(a)(5), the Plaintiff also seeks costs associated with filing the present Motion, including reasonable attorney fees. In their Response, the Defendants set forth two reasons why the Court should deny the Plaintiff's Motion to Compel. First, they contend that the Motion is untimely because Austin was required to meet and confer and raise any issues with DSW's Objections prior to the deposition (which she failed to do). Second, they assert that the information sought is irrelevant, noting that even if the Motion were otherwise timely, the discovery that Austin seeks to compel is not necessary because DSW will not be challenging numerosity in connection with any motion for class certification. Judge Deavers recognizes that the Defendants allege that the Motion should be "denied because it was filed without the Plaintiff first requesting an informal Court conference as required by the Court's Preliminary Pretrial Order and without the signature of the Plaintiffs' 'Trial Attorney,' as required by the Court's Local Rules." She cautions the Plaintiffs to adhere to the Local Rules and designate a Trial Attorney for future filings, as Austin acknowledges in her Reply. The Defendants' assertions, however, do not alleviate them of the responsibility to engage in the discovery process. Accordingly, Judge Deavers addresses the present Motion through analyzing the Defendants' assertions detailed in the Argument section of their Response, rather than dismissing the Plaintiff's concerns based on technicalities. In her Reply, the Plaintiff counters that she was not required to file a Motion to Compel before conducting the deposition, noting "there is nothing in the Rules of Civil Procedure that requires a premature motion." Replying to the Defendants' only "substantive objection" that the "Plaintiffs do not need this information to prepare their motion for class certification," she asserts that the information is "routine class action discovery." Further, she contends that the "Defendants' arguments presuppose them will not contest the motion for class certification by taking advantage of the fact that the Plaintiff does not have the requested information." Judge Deavers opines that the Plaintiff's arguments are well taken. Although the Defendants contend that the information is irrelevant because they will not challenge numerosity, he disagrees. Judge Deavers finds that the Plaintiff has fulfilled her burden to show the information sought is relevant to prove other required elements for class certification, and the Defendants fail to assert that such a request is unduly burdensome. The Defendants' Rule 30(b)(6) witness acknowledged he could answer the request if given time to prepare. Further, the Plaintiff has limited the scope of discovery to a specific time frame after learning about a software glitch in Defendants' system that was "present roughly between August 2018 and September 2019." Despite the Defendants' contention that the Plaintiff should have met and conferred regarding any objections before conducting the deposition, Judge Deavers finds that this Motion to Compel was timely filed. As required by Rule 37(a)(1) and the Court's Local Rule 37.1, the Plaintiff has certified that she attempted to meet and confer with the Defendants in good faith to resolve their differences related to the information sought in the 30(b)(6) deposition. The Plaintiff sufficiently exhausted extrajudicial means to resolve this discovery dispute before filing the present motion. For the foregoing reasons, Judge Deavers grants the Plaintiff's Motion to Compel. She orders the Defendants to produce a witness for a 30(b)(6) deposition to testify regarding the information outlined in Category 4 or to provide a declaration representing "an estimate of the number of distinct phone numbers that received more than one marketing text message after the owner typed stop and Defendants sent confirmation of receipt of stop request" within 30 days of the Order. Having granted the Plaintiff's Motion to Compel, Judge Deavers also finds that (i) the Plaintiff attempted in good faith to obtain the discovery without court action; (ii) the Defendants' nondisclosure is not substantially justified; and (iii) there are no circumstances present which would make an award of expenses unjust. Accordingly, she orders that the Defendants will pay the Plaintiff's reasonable expenses incurred in making the subject Motion, including attorneys' fees. She directs the Plaintiff to submit a summary of all expenses related to the subject Motion within 21 days of the Order. The Defendants will then have 14 days to submit objections to the submitted expenses. A full-text copy of the Court's Sept. 7, 2022 Opinion & Order is available at https://tinyurl.com/46pj74hn from Leagle.com. FMC CARSWELL: Norman Appeals Suit Dismissal to 5th Circuit ---------------------------------------------------------- ALEXIS C. NORMAN is taking an appeal from a court ruling dismissing her lawsuit entitled Alexis C. Norman, Plaintiff, v. Michael Carr, et al., Defendants, Case No. 4:21-cv-00669-P, in the U.S. District Court for the Northern District of Texas. The Plaintiff, individually and on behalf of all other similarly situated inmates at Federal Medical Center (FMC), Carswell, filed a class action suit against the Defendants for violating their Eighth Amendment rights. According to the complaint, the Defendants were deliberately indifferent to the inmates' medical needs and/or the risk of COVID-19 to their health by subjecting them to unconstitutional conditions of confinement, namely: (1) failing to enforce social distancing at FMC Carswell in the dorms, common areas, and meals; (2) permitting FMC Carswell's population to exceed the rated capacity in the high-rise building (Units 1 and 2); (3) housing four inmates to a cell; (4) denying inmates grab-n-go meals; and (5) failing to implement mandatory testing for staff and inmates. On November 18, 2021, the Court dismissed all of Plaintiff's claims with prejudice, except for her claims related to the service of her sentence and her Eighth Amendment claims against FMC Warden Michael Carr and Medical Director Charles Langham. On July 26, 2022, District Judge Mark Pittman granted the Defendants' motion for summary judgment, and dismissed the Plaintiff's remaining claims with prejudice for failure to exhaust administrative remedies. The appellate case is captioned as Norman v. Carr, Case No. 22-10839, in the United States Court of Appeals for the Fifth Circuit, filed on August 26, 2022. [BN] Plaintiff-Appellant ALEXIS C. NORMAN, individually and on behalf of all others similarly situated, appears pro se. Defendant-Appellee MICHAEL CARR, et al., are represented by: Tami C. Parker, Esq. U.S. ATTORNEY'S OFFICE 801 Cherry Street Burnett Plaza Unit 4 Fort Worth, TX 76102-6897 Telephone: (817) 252-5230 GAIA INC: Guida Sues Over Unlawful Disclosure of Subscribers' PII ----------------------------------------------------------------- Christopher Guida, on behalf of himself and all others similarly situated v. GAIA, INC., Case No. 1:22-cv-02350 (D. Colo., Sept. 12, 2022), is brought against Gaia's systematic practice of knowingly disclosing its subscribers' personally identifiable information ("PII") to third-party Facebook, Inc. (now known as Meta Platforms, Inc.) without their informed, written consent in violation of the Video Privacy Protection Act. The Defendant knowingly discloses its subscribers' PII to Facebook through its use of the "Facebook Pixel" or "Pixel," a programming code that Facebook makes available to Gaia to collect granular information about its subscribers' interactions with its websites. Facebook uses this information to build detailed profiles about Gaia's subscribers that enables Gaia to serve them with targeted advertisements on Facebook and otherwise facilitates Gaia's use of Facebook's advertising services. The Defendant intentionally installed the Pixel and selected the specific user information the Pixel would collect from its subscribers and send to Facebook, including specific videos the user accessed (via the video's title and the URL for the video) and the subscriber's unencrypted and personally and publicly identifiable Facebook ID ("FID"). Gaia thus discloses to Facebook through the Pixel in one transmission the following information each time a subscriber accesses a video on its websites or applications: (1) the video's title and URL; and (2) detailed, personal information that easily identifies the subscriber via the FID. This information constitutes PII under the VPPA. Finally, the Defendant did not obtain or even seek the separate, informed written consent needed for it to lawfully disclose the PII of Plaintiff or any other Class member. Accordingly, Plaintiff and all similarly situated subscribers are "aggrieved persons" under the VPPA seeking to enjoin Defendant from further unauthorized disclosures of PII; awarding actual damages no less than liquidated damages of $2,500 per violation, punitive damages, reasonable attorneys' fees and costs, pre- and post-judgment interest as permitted by law; and any other relief the Court deems appropriate, says the complaint. The Plaintiff has had a Facebook account, subscribed to the Defendant's digital video streaming service. Gaia is a digital streaming company that provides its more than 800,000 subscribers access to a vast and growing video library containing films, series, documentaries, and classes on the subjects of yoga, transformation, alternative healing, and mindfulness.[BN] The Plaintiff is represented by: Christopher J. Cormier, Esq. BURNS CHAREST LLP 4725 Wisconsin Avenue, NW Washington, DC 20016 Phone: (202) 577-3977 Email: ccormier@burnscharest.com - and - Hannah Crowe, Esq. Lauren Cross, Esq. BURNS CHAREST LLP 900 Jackson Street, Suite 500 Phone: (469) 904-4550 Email: hcrowe@burnscharest.com lcross@burnscharest.com - and - Rachel Geman, Esq. Douglas I. Cuthbertson LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Phone: (212) 355-9500 Email: rgeman@lchb.com dcuthbertson@lchb.com - and - Shawn M. Kennedy, Esq. HERRERA KENNEDY LLP 4590 MacArthur Blvd., Suite 500 Newport Beach, CA 92660 Phone: (949) 936-0900 Email: skennedy@herrerakennedy.com HEALTH IQ: Dobbs Appeals Arbitration Order in TCPA Suit to 3rd Cir. ------------------------------------------------------------------- RYAN DOBBS is taking an appeal from a court order granting the Defendant's motion to compel arbitration in the lawsuit entitled Ryan Dobbs, individually and on behalf of all others similarly situated, Plaintiff, v. Health IQ Insurance Services Inc., Defendant, Case No. 5-21-cv-05276, in the U.S. District Court for the Eastern District of Pennsylvania. The Plaintiff, individually and on behalf of all others similarly situated, brought this class action suit against the Defendant for sending telemarketing calls in violation of his privacy rights under the Telephone Consumer Protection Act (TCPA). The Plaintiff alleges that starting in June 2021, he received at least four unsolicited phone calls and two text messages from the Defendant. According to him, his cell phone number had been registered on the National Do Not Call Registry and the calls and texts that he received from the Defendant violated the TCPA. Pursuant to the TCPA, registration with the Do Not Call Registry allows an individual to avoid receiving unwanted telemarketing calls and to recover penalties should his or her privacy rights be willfully or knowingly violated. The Defendant argued that the Plaintiff assented to its Terms of Use when he provided his contact information and clicked "SUBMIT" after following its Facebook ad. The Defendant's Terms of Use contain an arbitration provision that requires users to submit claims against the Defendant to binding arbitration on an individual basis. Furthermore, the Terms of Use allow users to opt out of the arbitration provisions by sending written notice to the Defendant within 30 days. The Plaintiff did not send any opt out to the Defendant. On December 7, 2021, the Defendant filed a motion to compel arbitration, which the Court granted through an Order entered by District Judge Jeffrey L. Schmehl on July 27, 2022. Judge Schmehl said he does not find the Plaintiff's arguments to be persuasive. First, the Plaintiff does not state that he never visited the Defendant's website. Nor does he deny that he submitted the online form on its website to obtain information about insurance products. The Plaintiff's conclusory statement that he did not enter into any agreement with it is insufficient to create an issue of material fact. His naked assertions that he never signed the arbitration agreement are insufficient to lead the Court to conclude otherwise," he added. Accordingly, despite the Plaintiff's attempts to create a factual issue, Judge Schmehl found that the Plaintiff assented to the Defendant's Terms of Use. Therefore, the Plaintiff's argument that the delegation provision and the agreement as a whole is illusory due to the Defendant's ability to change the terms is not an issue to be addressed by the Court. Rather, this issue is one for the arbitrator, as contemplated by the valid delegation provision that was entered into between the Plaintiff and the Defendant, ruled Judge Schmehl. The appellate case is captioned as Ryan Dobbs v. Health IQ Insurance Services Inc., Case No. 22-2588, in the United States Court of Appeals for the Third Circuit, filed on August 29, 2022. Plaintiff-Appellant RYAN DOBBS, individually and on behalf of all others similarly situated, is represented by: Jacob U. Ginsburg, Esq. KIMMEL & SILVERMAN 30 East Butler Pike Ambler, PA 19002 Telephone: (215)540-8888 - and - Christopher E. Roberts, Esq. BUTSCH & ROBERTS LLC 231 South Bemiston Avenue Saint Louis, MO 63105 Telephone: (314) 863-5700 Defendant-Appellee HEALTH IQ INSURANCE SERVICES INC. is represented by: Jonathan A. Cass, Esq. COHEN SEGLIAS PALLAS GREENHALL & FURMAN 1600 Market Street, 32nd Floor Philadelphia, PA 19103 Telephone: (215) 564-1700 - and - Paul A. Rosenthal, Esq. FOX ROTHSCHILD 49 Market Street Morristown, NJ 07960 Telephone: (973) 548-3388 JOHNSON & JOHNSON: 3d Cir. Affirms Dismissal of Perrone ERISA Suit ------------------------------------------------------------------ In the case, MICHAEL PERRONE; TOM TARANTINO; ROCHELLE ROSEN, as participants in and on behalf of the Johnson & Johnson Savings Plan, and on behalf of a class of all others who are similarly situated, Appellants v. JOHNSON & JOHNSON; PETER FASOLO; DOMINIC J. CARUSO; JOHN DOES 1-20, Case No. 21-1885 (3d Cir.), the U.S. Court of Appeals for the Third Circuit affirms the dismissal of the Plaintiffs' complaint. J&J offers an Employee Stock Ownership Plan ("ESOP") as an investment option within its retirement savings plans. The ESOP invests solely in J&J stock, which declined in price following a news report accusing J&J of concealing that its popular baby powder was contaminated with asbestos. J&J denied both that its product was contaminated and that it had concealed anything about the product. What's important, however, is the stock market ramifications of the allegation. The Plaintiffs, J&J employees who participated in the ESOP, allege that the ESOP's administrators, who are senior officers of J&J, violated their fiduciary duties by failing to protect the ESOP's beneficiaries from a stock price drop. According to them, those fiduciaries, being corporate insiders, should have seen the price drop coming because of the baby powder controversy. Specifically, they allege that the corporate-insider fiduciaries violated the duty of prudence imposed on them by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Sections 1002-1003. J&J sells hundreds of products in a variety of categories, but perhaps none is better known than Johnson's Baby Powder. Since 1894, J&J has sold and marketed its baby powder for many uses. The main ingredient in the baby powder is talc, an underground mineral that is extracted by mining. The problem with mining talc, however, is that talc deposits can be located dangerously close to a different and notorious mineral: asbestos, a carcinogen linked to ovarian cancer and mesothelioma, among other serious ailments. The Plaintiffs assert that, for decades, J&J has known that Johnson's Baby Powder might contain asbestos. According to them, J&J has repeatedly suppressed unfavorable research about asbestos in talc, disregarded internal company concerns about asbestos in its baby powder, and undermined efforts to regulate asbestos in talc products generally. Over the years, thousands of plaintiffs have filed products liability lawsuits alleging that J&J's talc products caused cancer. Those plaintiffs have had mixed success. J&J has always denied liability and publicly affirmed that its products are asbestos-free and safe for everyday use. As recently as January 2019, J&J touted its talc as being "carefully selected, processed, and tested to ensure that it is asbestos free, as confirmed by regular testing conducted since the 1970s." Market pressure on J&J increased on Dec. 14, 2018, when Reuters published an investigative report titled J&J Knew For Decades That Asbestos Lurked In Its Baby Powder. The article asserted that J&J knew but concealed that the talc in its baby powder likely contained asbestos. It also accused J&J of attempting to influence government regulation and scientific research on the issue. The article was picked up by other news sources and received wide distribution. J&J's stock price "declined more than 10% following the Reuters report." The accusations about J&J's baby powder led to two significant lawsuits that, like the instant one, are pending in the U.S. District Court for the District of New Jersey. The first, the "Products Liability Action," is actually 54 different actions centralized from at least 23 district courts under the federal rules permitting multi-district litigation -- In re Johnson & Johnson Talcum Powder Prod. Mktg., Sales Pracs. & Prod. Liab. Litig., 220 F.Supp.3d 1356, 1357 (J.P.M.L. 2016). All of those cases involve claims that asbestos in J&J's talc products caused personal injuries. The MDL proceeded to discovery after J&J filed an answer to the amended master complaint in April 2017. The second case, the "Securities Fraud Action," is a putative class action alleging that J&J and its senior executive officers violated federal securities disclosure laws, based on many of the same facts described -- Hall v. Johnson & Johnson, 2019 WL 7207491, at *1-8 (D.N.J. Dec. 27, 2019). J&J moved to dismiss it, but the District Court denied that motion in part in December 2019. Also in 2019, the Plaintiffs filed their proposed class action. Rather than bring a products liability or securities fraud claim, they assert that the Defendants are liable for a third type of legal violation: a breach of fiduciary duties under ERISA. J&J sponsors several defined contribution plans into which its employees can invest a portion of their salaries for retirement. Those defined contribution plans include the Johnson & Johnson Savings Plan (the "Savings Plan"), the Johnson & Johnson Savings Plan for Union Represented Employees, and the Johnson & Johnson Retirement Savings Plan. The Plans are all governed by the provisions of ERISA. The Plans' fiduciaries -- the individual Defendants --constitute J&J's Pension and Benefits Committee, which has general authority over the management and administration of the Plans. Each of the Plans includes an investment option allowing employees to place their contributions in an ESOP, which invests exclusively in J&J stock. The Plaintiffs were participants in the Savings Plan and invested in J&J stock through the ESOP. In particular, they participated in the Savings Plan during the proposed Class Period, namely, between April 11, 2017 (when discovery commenced in the Products Liability Action) and Dec. 14, 2018 (when the Reuters report allegedly drove down the J&J stock price). The Plaintiffs' consolidated class action complaint alleged that the members of the Pension and Benefits Committee breached their fiduciary duties by not acting prudently in the administration of the Plans. They asserted that the Defendants should have instead protected the ESOP participants from the inevitable stock price decline by issuing corrective public disclosures. The Defendants moved to dismiss, and the District Court granted their motion. It accordingly dismissed the ERISA claims, but it did so without prejudice, allowing the Plaintiffs an opportunity to allege other actions that the individual Defendants could have taken. In June 2020, the Plaintiffs filed an amended class action complaint that largely duplicated the prior one. They reiterated their theory that the ERISA fiduciaries should have issued corrective disclosures, but they added reasons for why the Defendants could have issued disclosures in their capacities as ERISA fiduciaries. The Plaintiffs also presented another alternative: they said that the fiduciaries should have protected the ESOP participants from the J&J stock price decline by directing new contributions to the ESOP's cash buffer instead of buying overvalued J&J stock. The Defendants again moved to dismiss, and the District Court granted their motion. It was still unpersuaded by the Plaintiffs' corrective-disclosure theory, concluding, as before, that the Defendants could only have issued corrective disclosures in their corporate capacities. It also rejected both the corrective-disclosure theory and the cash-buffer theory on the ground that it was not clear either alternative action would have avoided doing more harm than good to the ESOP. The Plaintiffs have timely appealed. In Fifth Third Bancorp v. Dudenhoeffer, the Supreme Court held that a plaintiff seeking to bring such a claim must plausibly allege "an alternative action that the defendant could have taken that would have been consistent with the securities laws," and, further, "that a prudent fiduciary in the same circumstances would not have viewed the proposed alternative action as more likely to harm the fund than to help it." The Plaintiffs allege two alternative actions that, according to them, meet the Dudenhoeffer standard. The first is that the Defendants could have corrected the price inflation by "causing truthful or corrective disclosures to be made much earlier to cure the Company's misrepresentations and material omissions." According to them, "the disclosure would be that J&J has known about its talc product having asbestos in it for quite some time and that it is aware of scientific studies that asbestos has been linked to cancer." The Plaintiffs also would have had the Defendants admit on J&J's behalf that its companies' talc products were not "completely, 100 percent safe." The second alternative the Plaintiffs propose is that the "Defendants could have directed new ESOP investments to be used to increase the ESOP's cash buffer rather than to buy inflated Johnson & Johnson stock." The District Court rejected those alternative actions as failing the Dudenhoeffer test, and the Court of Appeals agrees. It opines that neither suggested alternative action satisfies Dudenhoeffer, because a reasonable fiduciary in the Defendants' circumstances could readily view corrective disclosures or cash holdings as being likely to do more harm than good to the ESOP, particularly given the uncertainty about J&J's future liabilities and the future movement of its stock price. The Court of Appeals holds that it would make no sense to resolve the question of tort liability in this collateral ERISA litigation. Nor has J&J admitted that its talc products contain asbestos. Because J&J has not and likely will not make the disclosure proposed by the Plaintiffs, it can hardly be said that all prudent fiduciaries would have concluded in 2017 that such disclosure was "inevitable." Furthermore, early disclosures to the press, necessarily shorn of context, could cause the stock market to overreact, misunderstanding the legal significance of the information and believing that J&J would be subject to more legal liability than it really would be. Thus, a reasonably prudent fiduciary in the Defendants' circumstances could conclude that corrective disclosures would do more harm than good to the ESOP. In addition, while there may be circumstances in which a reasonably prudent fiduciary would find it advantageous to increase the cash buffer rather than buy the company's stock, the Plaintiffs have not adequately pleaded that those circumstances exist. It was a guess that J&J's stock price would drop significantly, and there was even less certainty about the timing and degree of such a drop. A prudent fiduciary in the Defendants' position reasonably could have anticipated that J&J's stock price was not bound to tumble, or could have believed that any price drop would be outweighed by gains accrued prior to the drop or by a rapid rebound. It is simply too much of a stretch to say that a prudent fiduciary in the Defendants' position "could not have concluded" that redirecting contributions to the ESOP's cash buffer "would do more harm than good." For the foregoing reasons, the Court of Appeals concludes that the Plaintiffs have failed to meet the high standard for pleading a claim under ERISA for breach of the duty of prudence based on inside information. It therefore affirms the dismissal of the Plaintiffs' complaint. A full-text copy of the Court's Sept. 7, 2022 Opinion is available at https://tinyurl.com/ns6wdwjm from Leagle.com. Kyle G. Bates -- kbates@schneiderwallace.com -- James A. Bloom -- jbloom@schneiderwallace.com -- Todd Schneider -- tschneider@schneiderwallace.com -- Schneider Wallace Cottrell Konecky, 2000 Powell Street - Suite 1400, Emeryville, CA 94608. Samuel E. Bonderoff, [ARGUED], Jacob H. Zamansky, Zamansky, 50 Broadway - 32nd Floor, New York, NY 10004. Todd S. Collins -- tcollins@bm.net -- Ellen T. Noteware -- enoteware@bm.net -- Berger Montague, 1818 Market Street - Suite 3600, Philadelphia, PA 19103. Joseph J. DePalma -- jdepalma@litedepalma.com -- Lite DePalma Greenberg & Afanador, 570 Broad Street - Suite 1201, Newark, NJ 07201, Counsel for the Appellants. Mark B. Blocker -- MBLOCKER@SIDLEY.COM -- [ARGUED], Christopher Y. Lee -- CHRIS.LEE@SIDLEY.COM -- Abigail Molitor -- AMOLITOR@SIDLEY.COM -- Kristen R. Seeger -- KSEEGER@SIDLEY.COM -- Sidley Austin, One South Dearborn Street, Chicago, IL 60603. Keith J. Miller -- kmiller@rwmlegal.com -- Robinson Miller, 110 Edison Place, 19th Floor, Suite 302, Newark, NJ 07102, Counsel for the Appellee. JOHNSON & JOHNSON: Oral Argument for MDL Class Suit Set Sept. 29 ---------------------------------------------------------------- Ronald V. Miller, Jr., of Lawsuit Information Center, disclosed that Tylenol autism lawsuits are being filed around the country with a new Tylenol Autism class action lawsuit pending certification in federal court. Our lawyers are handling Tylenol lawsuits in all 50 states. Upon first hearing of a connection between Tylenol and Attention-deficit/Hyperactivity Disorder ("ADHD") or Autism Spectrum Disorder ("Autism"), you have doubt. Tylenol is ubiquitous in our medicine cabinets and in our day-to-day lives. But the new medical research linking autism and Tylenol is strong. It suggests that in utero exposure to Tylenol (acetaminophen) may be linked to higher rates of autism and other neurologic disorders. If your child has autism and you (or for dads, the child's mother) used Tylenol, generic acetaminophen, Nyquil, Dayquil, or Excedrin, you may be eligible to fight for compensation for your child and your family. If your child is 15 years old or younger, call our Tylenol autism lawyers today at 800-553-8082 or get a free online consultation. Tylenol Class Action Lawsuit Updates Before we get into the substance of the Tylenol autism lawsuits, these are the most recent updates in the effort to create a Tylenol class action lawsuit. September 11, 2022 Oral argument before the JPML on the motion to consolidate the acetaminophen autism cases into an MDL class action lawsuit has been set for September 29, 2022, in St. Louis. The MDL consolidation request has faced opposition from various defendants. But our Tylenol autism lawyers think the odds are still in favor of the MDL class action lawsuit being granted. What is more in doubt is what venue the JPML will select if a new MDL is created. The plaintiffs are pushing for the Northern District of California, while the defendants prefer New Jersey. August 9, 2022 Plaintiffs in the acetaminophen autism lawsuits file a Reply in Support of their recent request for consolidation of all Tylenol autism lawsuits into a new MDL class action. The Reply brief contests the legal arguments made several defendants in their oppositions to consolidation. Specifically, the Reply asserts that the number of pending cases and future pending cases is more than adequate to justify an MDL. The Reply also reasserts that the Northern District of California would be the most logical choice of venue for the MDL. August 2, 2022 The defendants filed briefs in opposition to the motion seeking consolidation of all Tylenol autism lawsuits into a new class action MDL. Each defendant filed its own separate opposition, but all four briefs make similar arguments. First, the opposition briefs point out that the Tylenol autism lawsuits have only been filed against retail defendants and necessary parties (i.e., the actual acetaminophen manufacturers) have been left out. Second, they contend that there are not enough acetaminophen autism cases pending and that the field of defendants is too large and diverse. Finally, all the defense oppositions object to the forums suggested by the plaintiffs and argue that is the cases are consolidated, the District of New Jersey or the Eastern District of New York would be the more appropriate venues. Tylenol Autism Lawsuit Tylenol lawsuits are now being brought against major retailers, Johnson and Johnson, and generic acetaminophen makers claiming that they failed to warn that using the popular drug during pregnancy could lead to autism. The growing number of Tylenol autism lawsuits has recently prompted a request for the cases to be consolidated into a new MDL Tylenol autism class action lawsuit. Our firm is currently accepting Tylenol autism lawsuits from parents or guardians of children who were diagnosed with autism or ADHD after significant prenatal exposure to Tylenol or generic acetaminophen. Contact our law firm today at 800-553-8082 or get a free online consultation. Tylenol Linked to Autism Tylenol (the brand name for acetaminophen) is one of the most popular and widely used over-the-counter pain medications in the world. Acetaminophen holds a uniquely preeminent place in pharmacology and medicine. Millions of people use Tylenol regularly to relieve headaches, pain, and reduce fevers. Around 50 million American consumers (roughly 20% of the adult population in the United States) use products containing acetaminophen each week, with more than 25 billion doses being used annually. At the same time, it is, paradoxically, probably one of the most dangerous and least understood compounds in medical use. Acetaminophen's mechanism of action remains unclear. Scientists have yet to figure out how acetaminophen relieves pain and reduces fever. Despite the drug's unknown mechanism of action, acetaminophen has long been marketed to pregnant women as the safest pain reliever and fever-reducing drug for use during pregnancy. As a result, Tylenol is used by more pregnant women than any other over-the-counter drug. Baby Food and Autism We have known that many have linked baby food and autism. Until recently, lawyers generally thought Tylenol lawsuits were not as strong as the baby food claims. But that wisdom has been flipped on its head because it is likely that the Tylenol cases will be much easier to prove. Moreover, women's medical records are replete with instruction from doctors to take acetaminophen for aches and pains. Medical Literature on Tylenol and Baby Food Over the past decade, a growing body of scientific studies has raised increasingly more and greater concerns about the correlation between prenatal acetaminophen exposure and adverse neurodevelopmental outcomes, including autism. Consensus Statement on Tylenol and Pregnancy In 2021, the scientific journal Nature Reviews Endocrinology published a Consensus Statement from medical experts warning that the use of Tylenol during pregnancy was not safe and could lead to higher rates of autism. JAMA Psychiatry Study One of the most significant studies, published in the leading scientific journal JAMA Psychiatry in 2020, found that umbilical cord "biomarkers of fetal exposure to acetaminophen were associated with significantly increased risk of childhood [autism] in a dose-response fashion." The study's authors further noted that "[s]ensitivity analyses . . . and subgroup analyses found consistent associations between acetaminophen and [autism] across strata of potential confounders, including maternal indication, substance use, preterm birth, and child age and sex." Hopkins Study A Johns Hopkins study looked at cord blood samples and measured acetaminophen levels. The results were stunning. The highest levels of acetaminophen found in the cord blood were almost three times as likely to be on the autism spectrum compared to children with the lowest levels in their cord blood. Other Studies Various studies have found that the use of Tylenol (or acetaminophen) during pregnancy may lead to the development of various neurological disorders, including autism spectrum disorder. Twenty-six separate observational studies have identified positive associations between acetaminophen exposure during pregnancy and autism. The 16 studies that specifically investigated dose-response identified a dose-response association, meaning increased duration of exposure to acetaminophen was associated with increased risk. A research study published in 2018, involved a meta-analysis of seven other studies that included more than 130,000 pairs of mothers and children. The mother-child pairs were monitored for 3 to 11 years, depending on the study. The study determined that children who were exposed to Tylenol for prolonged periods during pregnancy had a 20% higher risk of autism. Risk of Autism with Tylenol May Be Dose Responsive The timing, amount, and length of Tylenol use during pregnancy appear to have a correlation with the risk of autism because other studies have indicated that using small doses of Tylenol during pregnancy do not increase the risk of autism. Based on this new research, many doctors now recommend that women avoid taking acetaminophen during pregnancy unless medically indicated. Tylenol Autism Class Action Lawsuit The new research linking Tylenol use during pregnancy to autism has prompted a growing wave of Tylenol autism lawsuits. Major drug retailers such as CVS and Walgreens and manufacturers of acetaminophen-based drugs are being sued by children and parents alleging that use of the Tylenol during pregnancy caused children to develop autism spectrum disorder (ASD) or attention deficit hyperactivity disorder (ADHD). Class Action Pending On June 10, 2022, the plaintiffs' lawyers filed a motion with the Judicial Panel on Multidistrict Litigation (JPML) seeking to have the Tylenol autism lawsuits consolidated into a new class action MDL. According to the motion filed with the JPML, there are currently about 20 acetaminophen autism lawsuits pending in federal courts across the country. All the Tylenol lawsuits raise similar factual allegations and assert claims based on failure to warn about the risks of prenatal exposure to Tylenol. Each Tylenol autism lawsuit has been filed within a very short time frame. This tells the JPML panel that many more Tylenol lawsuits are likely going to be filed. Do You Qualify for a Tylenol Autism Lawsuit? If you used Tylenol or generic acetaminophen during pregnancy at high doses or for extended time periods and your child was subsequently diagnosed with autism, you and/or your child may be able to bring a civil lawsuit and seek financial compensation. Right now, the scientific evidence establishing causation between prenatal exposure to acetaminophen and autism is still emerging. If this evidence of causation is considered strong enough to be presented to a jury in a civil case, however, plaintiffs could receive significant compensation for these cases. If the Tylenol autism lawsuits are eventually consolidated into a class action MDL (and the causation evidence survives legal challenges) it will make it more likely that these cases could be resolved in some type of global settlement. Contact Our Lawyers About Your Tylenol Autism Lawsuit The national product liability lawyers at Miller & Zois are reviewing Tylenol autism lawsuits on behalf of parents and guardians of children who were diagnosed with autism or ADHD after significant prenatal exposure to Tylenol or generic acetaminophen. Contact our Tylenol autism lawyers today at 800-553-8082 or get a no-obligation, free online consultation. [GN] KOCHAVA INC: Greenley Sues Over Unauthorized Data Collection ------------------------------------------------------------ DAVID GREENLEY, individually and on behalf of others similarly situated, Plaintiff v. Kochava, Inc., Defendant, Case No. 3:22-cv-01327-BAS-AHG (S.D. Cal., Sept. 6, 2022) seeks damages and injunctive relief against the Defendant and its present, former, or future direct and indirect parent companies, subsidiaries, affiliates, agents, related entities for violations of the California Penal Code Section 630, et seq., including Section 631 for Wiretapping in relation to the unauthorized collection, recording, and dissemination of Plaintiff's and Class Members' data. According to the complaint, the Defendant made an unauthorized connection with Plaintiff's mobile device when Defendant collected and stored geolocation data specific to each consumer's mobile device and then provided such information to its clients for the purposes of targeted advertising. The Defendant further collected, sold, licensed, and transferred Plaintiff's precise geolocation data which were associated to visits to sensitive locations without Plaintiff's knowledge or consent. These actions cause or are likely to cause substantial injury to Plaintiff which are not outweighed by any benefits to the consumer or competition, says the suit. This alleged data collection includes all sorts of website information, as well as Plaintiff's and Class Members' respective IP addresses, browser and device information, user IDs, geolocation data, and other data, which are used by Defendant to "fingerprint" individuals across the Internet for Defendant's benefit, deriving revenue from the targeted marketing and sale of this information to third parties, the suit asserts. Kochava, Inc. provides online advertising services.[BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. SWIGART LAW GROUP, APC 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Telephone: (866) 219-3343 Facsimile: (866) 219-8344 E-mail: Josh@SwigartLawGroup.com KOHL'S CORP: Timothy L. Miles Announces Securities Class Action --------------------------------------------------------------- The Law Offices of Timothy L. Miles, who has been leading the fight to protect shareholder rights for over 20 years, informs investors that a that a purchaser of Kohl's Corporation (NYSE: KSS) who suffered losses in Kohl's stock, filed a class action complaint against the Company for alleged violations of the securities laws. The Kohl's class action lawsuit seeks to represent purchasers or acquirers of Kohl's securities between October 20, 2020 and May 19, 2022, inclusive (the "Class Period"). The Kohl's class action lawsuit -- captioned Shanaphy v. Kohl's Corporation, No. 22-cv-01016 (E.D. Wis.) -- charges Kohl's as well as certain of its top executives and directors with violations of the Securities Exchange Act of 1934. Allegations in the Kohl's Class Action Lawsuit In October 2020, Kohl's announced that it had entered into a new strategic framework to "drive top-line growth," "expand operating margin," and become "the most trusted retailer of choice for the active and casual lifestyle" (the "Strategic Plan"). In announcing the Strategic Plan, Kohl's touted its purportedly strong foundation of customers, industry-leading loyalty and charge card programs, high volume of stores, and large and growing digital business. The Kohl's class action lawsuit alleges that defendants failed to disclose that: (i) Kohl's Strategic Plan was not well tailored to achieving Kohl's stated goals; (ii) the defendants had likewise overstated Kohl's success in executing its Strategic Plan; (iii) Kohl's had deficient disclosure controls and procedures, internal control over financial reporting, and corporate governance mechanisms; (iv) as a result, Kohl's Board of Directors was able to and did withhold material information from shareholders about the state of Kohl's in the lead-up to Kohl's annual meeting; and (v) all the foregoing, once revealed, was likely to have a material negative impact on Kohl's financial condition and reputation. On May 19, 2022, Kohl's announced its first quarter of 2022 results, reporting, among other items, a net sales figure expected to grow up to only 1% (compared to Wall Street consensus growth of 1.94%), earnings per share of $0.11 (missing estimates by $0.59), a revenue figure which only barely edged expectations, and Kohl's decision to cut its full year earnings forecast. These results were at odds with defendants' representations regarding the successful execution of Kohl's Strategic Plan, which was purportedly poised to drive top-line growth and position Kohl's for long-term success. Then, on May 20, 2022, Macellum Advisors GP, LLC, "a long-term holder of nearly 5% of the outstanding common shares of Kohl's," issued a statement addressing"[t]his quarter's extremely disappointing results," which Macellum attributed to a "flawed strategic plan and an inability to execute." Macellum also stated that "the current Board appears to have withheld material information from shareholders about the state of Kohl's in the lead-up to this year's pivotal annual meeting," which "suggests to us a clear breach of fiduciary duty." On this news, Kohl's stock price fell by nearly 13%, damaging investors who suffered losses in Kohl's stock. Kohl's Shareholders Urged to Contact the Firm If you purchased Kohl's securities, have information, or have any questions concerning this announcement or your rights or interests with respect to these matters, please click here for more information or contact Timothy L. Miles, Esquire, at 615-587-7384, Toll-Free at 855-846-6529. If you inquire by email please include your mailing address, telephone number, and the number shares owned. About Timothy L. Miles Timothy L. Miles is a nationally recognized shareholder rights attorney raised in Nashville, Tennessee. Mr. Miles was recentely selected by Martindale-Hubbell(R) and ALM as a 2022 Top Ranked Lawyer and a 2022 Top Rated Litigator. Mr. Miles also maintains the AV Preeminent Rating by Martindale-Hubbell(R), their highest rating for both legal ability and ethics. Mr. Miles is a member of the prestigious Top 100 Civil Plaintiff Trial Lawyers: The National Trial Lawyers Association, a superb rated attorney by Avvo, a recipient of the Lifetime Achievement Award by Premier Lawyers of America (2019) and recognized as a Distinguished Lawyer, Recognizing Excellence in Securities Law, by Lawyers of Distinction (2019). Awards: Top Rated Litigator by Martindale-Hubbell(R) and ALM (2019); 2019 Elite Lawyer of The South by Martindale-Hubbell(R) and ALM (2019); Member of the Top 100 Civil Plaintiff Trial Lawyers: The National Trial Lawyers Association (2017-2019); AV(R) Preeminent(TM) Rating by Martindale-Hubble(R) (2014-2020); PRR AV Preeminent Rating on Lawyers.com (2017 & 2019); The Top-Rated Lawyer in Litigation™ for Ethical Standards and Legal Ability (Martindale-Hubble(R) 2015); Lifetime Achievement Award by Premier Lawyers of America (2019); Superb Rated Attorney (Avvo); Avvo Top Rated Lawyer for (Avvo 2017-2020). Mr. Miles has authored numerous publications advocating for shareholdings including most recently: Free Portfolio Monitoring Services Offered by Plaintiff Securities Firms Provides Significant Benefits To Investors (Timothy L. Miles, Dec. 3, 2019). Contact: Timothy L. Miles, Esq. Law Offices of Timothy L. Miles 109 Summit Ridge Ct. Nashville, TN 37215 Telephone: (855-846-6529) [GN] MIDLAND FUNDING: Denial of Arbitration Bid in Zirpoli Suit Flipped ------------------------------------------------------------------ The United States Court of Appeals for the Third Circuit vacates the order of the district court denying Midland's motion to compel arbitration in the lawsuit entitled BENJAMIN ZIRPOLI, individually and on behalf of all others similarly situated v. MIDLAND FUNDING, LLC; MIDLAND CREDIT MANAGEMENT, INC. MIDLAND FUNDING, LLC, Appellant, Case No. 21-2438 (3d Cir.). Circuit Judge Theodore A. McKee, writing for the Panel, states that arbitration is a contractual obligation. Thus, parties to a contract may delegate questions of arbitrability to an arbitrator. If parties clearly and unmistakably make this choice, then district courts generally must send threshold questions of arbitrability to arbitration to comply with the parties' agreement. Here, OneMain Financial Group legally contracted with Benjamin Zirpoli. This contract includes a clause that delegates any question of arbitrability to arbitrators. OneMain then assigned this contract to Midland Funding LLC. Litigation between Midland and Zirpoli ensued, and Midland filed a motion to compel arbitration. Zirpoli opposes that motion, arguing that Midland cannot compel arbitration because OneMain's assignment to Midland is void under Pennsylvania law. The Court of Appeals must decide if the District Court erred in not granting the motion to compel and refusing to refer the dispute to an arbitrator. For the reasons that follow, the Court of Appeals holds that the District Court did err and that the motion to compel should have been granted. I. OneMain is a consumer discount company: a non-bank finance company that makes, buys, or sells consumer loans in amounts under $25,000 with combined fees, interest, charges, and other amounts that aggregate in excess of 6% per year. Zirpoli applied for and received a loan from OneMain (the "Loan"). Under the terms of the Loan, Zirpoli was to borrow $6,200.08 and repay at a rate of 26.91% (for a total of $11,364.35). His Loan was issued under the Consumer Discount Company Act (CDCA), a consumer protection statute, which creates an exception to, and is a corollary of, Pennsylvania's usury law. The obligations of the Loan are governed by a disclosure statement, note and security agreement, and an arbitration agreement. Midland is a Delaware limited liability corporation. Its sole business is purchasing defaulted consumer debt. After Zirpoli and OneMain executed the Loan, OneMain and Midland executed a sales agreement through which OneMain sold several delinquent accounts to Midland; those accounts included Zirpoli's Loan. Midland acquired these accounts in a sales agreement even though it did not possess a CDCA license or request approval from the Department of Banking. OneMain's records show that it had charged-off Zirpoli's account with an outstanding balance of $7,391.90. After acquiring Zirpoli's Loan from OneMain, Midland sued Zirpoli to collect the amount Zirpoli owed on the Loan. Zirpoli hired counsel and entered a defense, but Midland thereafter dismissed the suit rather than litigating. Subsequent to dismissing the litigation, Midland allegedly attempted to collect the delinquent Loan by reporting it to various consumer agencies, thereby negatively impacting Zirpoli's credit. Midland also allegedly obtained and used Zirpoli's credit report from various consumer reporting agencies. In response, Zirpoli filed this class action lawsuit in the U.S. District Court for the Middle District of Pennsylvania. He alleged that Midland's collection activities including the since-dismissed lawsuit and reporting the Loan delinquency to credit agencies constituted an unlawful attempt to collect the Loan. Zirpoli contends that because Midland does not have a CDCA license and never obtained nor requested approval from the Department of Banking, Midland was not lawfully permitted to purchase the Loan. Accordingly, he argues, Midland's attempts to collect on the Loan violated several consumer protection acts. Midland responded to the suit by filing a motion to compel arbitration and to stay the proceedings. The District Court denied this motion without prejudice, finding that it was not apparent from the face of the complaint that Zirpoli's claims were subject to a valid and enforceable arbitration agreement and that discovery was necessary. The District Court then ordered additional, limited discovery on the following issues: * Whether the Secretary of Banking approved the purported transaction involving Midland Funding, an unlicensed consumer-discount company; * Whether, in accordance with the terms of the sale agreement, Midland Funding obtained approval to compel arbitration with Zirpoli; and * Whether Midland Funding maintains a clear chain of title to the loan account. Thereafter, the District Court found that the discovery revealed that (1) the Pennsylvania Secretary of Banking did not approve the assignment between OneMain and Midland, and (2) Midland was not licensed under the CDCA during the time period at issue in this litigation. Midland then filed a renewed motion to compel arbitration and to stay proceedings. It argued that it obtained the right to enforce Zirpoli's obligations under the Loan as part of the purchase agreement with OneMain, including the right to compel arbitration. Zirpoli renewed his objection to the motion, arguing that the assignment was illegal and void and that he was therefore not bound by the arbitration clause in the agreement between OneMain and Midland. The District Court denied Midland's motion to compel. In doing so, it focused on the validity of the assignment from OneMain and Midland and reasoned that was the dispositive question governing arbitrability. The District Court then denied as moot Midland's motion to stay. This appeal follows. II. Judge McKee states that the Panel is once again confronted with the "mind-bending issue" of arbitration about arbitration. Not too long ago, the Court of Appeals answered the question of who decides--a court or an arbitrator--whether an agreement exists, when the putative agreement includes an arbitration provision empowering an arbitrator to decide whether an agreement exists (citing MZM Constr. Co., Inc. v. New Jersey Bldg. Labs. Statewide Benefit Funds, 974 F.3d 386, 392 (3d Cir. 2020)). The Court of Appeals held that "questions about the 'making of the agreement to arbitrate' are for the courts to decide unless the parties have clearly and unmistakably referred those issues to arbitration in a written contract whose formation is not in issue." Judge McKee notes that the Panel is confronted with the question of whether a challenge to the legality of an assignment of a loan that is subject to an agreement to arbitrate challenges the very formation of the arbitration agreement. The Panel holds that it does not. Accordingly, the District Court erred in finding that it had the authority to adjudicate this question of arbitrability. Mr. Zirpoli argues that the District Court did not have jurisdiction to resolve Midland's motion to compel in the first place because it is not a "party" under Section 4 of the Federal Arbitration Act. He claims that to be a party under this section, Midland must actually be a party to an arbitration agreement. He reasons that Midland is not a party to the arbitration agreement because the assignment from OneMain was invalid, and thus, according to Zirpoli, Midland could not petition the court to compel arbitration. Judge McKee finds that the argument does have facial appeal; however, the Court of Appeals is not persuaded. The most natural reading of "party" in Section 4 is that it refers to a party to a litigation. The Supreme Court has read "parties" in Section 3 of the Act to mean "litigants." And the Court of Appeals presumes that Congress uses words consistently throughout a statute. That suggests that "party" means "litigant" in both Sections 3 and 4. Though context can rebut this presumption, Judge McKee finds that the context of Section 4 here actually confirms that "party" means "party to litigation." "Party" or "parties" is used eight times in Section 4. Even Zirpoli admits that many of these uses refer most naturally to litigants. Accordingly, Judge McKee concludes that "parties" in Section 4 refers to litigants. Therefore, the District Court had jurisdiction to hear Midland's motion to compel arbitration. Accordingly, the Court of Appeals must resolve the "threshold arbitrability question"--who decides whether the parties must arbitrate: the arbitrator or the court--before a question of arbitrability can be decided. In other words, courts must figure out whether the parties should arbitrate the question of whether the parties agreed to arbitrate the dispute. Here, the District Court found that it must answer that question. Midland argues that the arbitrator should have decided this question. Judge McKee notes that a court can compel a party to arbitrate only if the party agreed to arbitration. A party agrees to arbitrate if (1) there is a valid agreement to arbitrate between the parties and, if so, (2) the merits-based dispute in question falls within the scope of that valid agreement. However, Judge McKee says, these seemingly clear waters can become very murky when parties agree to delegate questions of arbitrability to arbitrators and a dispute thereafter arises about the legality or enforceability of the contract. Mr. Zirpoli does not dispute that he signed an agreement in which he agreed to arbitrate claims not only with OneMain but also with OneMain's past, present or future respective assignees. Midland is an assignee. Perhaps the assignment will later be invalidated as there is indeed a question as to the validity of the assignment, but not as to whether the agreement itself is valid, Judge McKee holds. Accordingly, there exists here a valid agreement. One that Zirpoli signed, binding him to arbitrate claims with OneMain and its future assignee--Midland. Judge McKee finds that the first inquiry is satisfied as a valid agreement to delegate questions of arbitrability between the parties exists. Judge McKee explains that determining whether Midland is a valid assignee goes directly to whether it can enforce arbitration as the agreement provides, not whether the agreement exists; it clearly does exist and Zirpoli does not argue to the contrary. Judge McKee also finds that the Court of Appeals must only determine if the parties to the Loan clearly and unmistakably expressed an agreement to arbitrate the issue of arbitrability. A plain reading of the text of the arbitration agreement shows that they did, Judge McKee holds. The arbitration agreement provides that any Claim will be resolved by binding arbitration. Judge McKee holds that the arbitration agreement provides that an arbitrator will resolve the arbitrability of defenses to enforcement, including alleged violations of state usury laws. III. For these reasons, the Court of Appeals will vacate the order of the District Court and remand with instructions that the District Court grant the motion to stay and refer the matter to arbitration. Stephanos Bibas, Circuit Judge, concurring in part and dissenting in part. A full-text copy of the Court's Opinion dated Sept. 1, 2022, is available at https://tinyurl.com/5n7zpxaj from Leagle.com. Kevin J. Abramowicz -- kabramowicz@eastendtrialgroup.com -- Kevin W. Tucker -- ktucker@eastendtrialgroup.com -- East End Trial Group, 6901 Lynn Way, Suite 215, in Pittsburgh, Pennsylvania 15208. Karla Girbride -- kgilbride@publicjustice.net -- Public Justice, 1620 L Street, N.W. Suite 630, in Washington, D.C. 20036. John B. Keller -- jebkeller@kkbrlaw.com -- Keller Keller Beck & Ross, 1035 Wayne Avenue, in Chambersburg, Pennsylvania 17201, Counsel for the Appellee. Lauren M. Burnette -- lburnette@messerstrickler.com -- Messer Strickler Burnette, 12276 San Jose Boulevard, Suite 718, in Jacksonville, Florida 32223, Counsel for the Appellant. MOUNTAIN WEST: Wins Bid to Deny Class Certification in Drange Suit ------------------------------------------------------------------ In the lawsuit titled JODIE and ANDY DRANGE, each individually and on behalf of other persons similarly situated, Plaintiffs v. MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY and DOES 1-100, Defendants, Case No. CV 20-30-BLG-SPW (D. Mont.), Judge Susan P. Watters of the U.S. District Court for the District of Montana, Billings Division: (1) grants Mountain West Farm Bureau Mutual Insurance Company's Motion to Deny Certification of the Class Pursuant to Rule 23; and (2) denies the Plaintiffs' cross-motion for class certification. For reference, the Court uses these abbreviations: ACV (Actual Cash Value) Payment, RCV (Replacement Cost Value) Payment, and GCOP (General Contractor Overhead and Profit) Payment. The Plaintiffs seek to certify two classes: (a) ACV Class: All Mountain West Farm Bureau Mutual Insurance Company policyholders in Montana who (1) made a claim for structural damage to their real property from December 18, 2011 to the present and; (2) where Mountain West Farm Bureau Mutual Insurance made an ACV payment to policyholders but did not pay GCOP. This class also includes a subclass with Unfair Trade Practices Act claims that begins with claims made on or after December 18, 2017; and (b) RCV Class: All Mountain West Farm Bureau Mutual Insurance Company policyholders in Montana who (1) made a claim for structural damage to their real property from December 18, 2011 to the present; (2) where Mountain West Farm Bureau Mutual Insurance accepted coverage; (3) where the policyholder completed repairs; and (4) Mountain West refused to pay GCOP with the policyholders' RCV payment. This class also includes a subclass with Unfair Trade Practices Act claims that begins with claims made on or after December 18, 2017. Mountain West argues the Plaintiffs' proposed class definitions are imprecise because: (1) the classes include uninjured parties, (2) the classes do not include any evidence for a viable damages model, and (3) the UTPA claims associated with each class are completely undefined. The Plaintiffs respond that the class definitions are not overbroad because GCOP is a component of ACV claims, and the definitions specifically exclude insureds who were paid GCOP. The Plaintiffs further contend that the classes do not need a damages model because the damages are calculable to a sum certain and the alleged UTPA violations are straightforward to include all possible violations of the statute's subsections. Based on these definitions, the Court finds that the Plaintiff's proposed class definitions are overbroad and unascertainable by necessarily including policyholders with no concrete injury. To be entitled to GCOP, there has to be at least a reasonably likely chance that a general contractor will be needed for the repairs--a standard that necessarily excludes those insureds whose repairs do not warrant the services of a general contractor. Indeed, the Plaintiffs acknowledge this standard throughout their brief. Yet, by including all Mountain West insureds in their class definitions, Judge Watters says, the Plaintiffs deliberately attempt to include individuals whose repairs did not warrant the general contractor services (even on a reasonably likely basis), did not incur GCOP charges as part of their repair costs, and, therefore, did not suffer any damages when Mountain West did not include GCOP payments in either the insured's ACV or RCV payment. A class so defined is untenable and overbroad because it includes individuals who lack Article III standing. Therefore, the Court finds that the Plaintiffs' proposed class definitions are neither precise nor ascertainable. Further, because the proposed class definitions are overbroad and will necessarily include members without standing, Judge Watters holds the proposed classes also cannot overcome the requirements of Rule 23(b). The Plaintiffs assert two claims for class-wide resolution: (1) At the ACV stage, does Mountain West breach the insurance contract and violate Montana's Unfair Trade Practices Act (UTPA) by applying a policy of categorically refusing to include general contractor overhead and profit on storm claims regardless of the scope of necessary repairs, and (2) At the RCV stage, does Mountain West breach the contract and violate the UTPA by refusing to pay GCOP where an insured incurs GCOP but cannot provide the general contractor's proprietary business records. The Plaintiffs argue these questions predominate over individual inquiries because they are simply questions of law, and turn on whether Mountain West's policy of imposing extra-contractual documentation as a prerequisite to its consideration of payment of GCOP, both at the ACV and RCV stage, is a breach of contract and a violation of the UTPA. For support, the Plaintiffs point to the Montana Supreme Court's decision upholding class certification in Kramer v. Fergus Farm Mut. Ins. Co., 474 P.3d 310 (Mont. 2020). The district court granted the Kramers' motion for class certification and Fergus Farm Mutual appealed. Fergus Farm Mutual argued to the Montana Supreme Court that class certification was improper because the Kramers could not meet Rule 23(b)'s predominance requirement. However, the Montana Supreme Court found this argument unpersuasive because it failed to follow the express language of Fergus Farm Mutual's insurance policy and focused instead on the insurer's internal practice--a practice not stated in the policy. The Montana Supreme Court found that a threshold question here is whether Fergus Farm Mutual's internal practices are themselves consonant with the policy issued to its insureds, or whether they constituted a breach of the policy. Thus, because the insurance policy was common to all putative class members and was silent on the matter of how the insurer would determine the necessity of GCOP payments at the ACV or RCV stage, the Montana Supreme Court affirmed the district court's determination that a common question predominated for class certification purposes. The Plaintiffs argue the same logic applies here, as the proffered common questions center on whether Mountain West's internal practices are adequately reflected and supported by the language of the insurance policy. Mountain West responds that Kramer is not applicable here because, unlike Fergus Farm Mutual, Mountain West relies on its insurance policy's "going rate" standard and requirement that insureds document their loss when determining whether GCOP is reasonably necessary. Thus, Mountain West argues that the resolution of the Plaintiffs' common questions would require an individual evaluation--at least in part--to determine whether each insured complied with their contractual duties. Regarding the Plaintiffs' second common question--whether Mountain West breaches the contract by refusing to pay GCOP where an insured incurs GCOP charges but does not provide the requested documents supporting those charges such as subcontractor invoices--the Court agrees with Mountain West and has already determined the practice to be adequately supported by the insurance contract's unambiguous language. Judge Watters finds that the Plaintiffs' assertion that Mountain West imposes an extra-contractual obligation on insureds to obtain and produce "proprietary" business records, such as subcontractor invoices, is unsupported. The insurance contract expressly and unambiguously allows Mountain West to do just that. Whether insureds adequately complied with this obligation is a factual question requiring a case-by-case analysis--an exercise that fails Rule 23(b)'s predominance test. Regarding Plaintiffs' first common question--whether Mountain West breaches the insurance contract and Montana's UTPA by categorically refusing to include GCOP on storm claims--the Court similarly finds that the contention does not predominate over individual inquiries. Judge Watters finds that the Plaintiffs' proposed classes are not so narrowly tailored. The Plaintiffs assert that it is Mountain West's practice to categorically refuse GCOP payments on storm damage claims. However, their proposed class definitions sweep in not only those insureds with storm damage, but those insureds, who made any kind of claim for structural damage to their real property from 2011 to present. Even if the Plaintiffs' claim is true that Mountain West does systemically deny GCOP on storm damage claims, Judge Watters asks how would that evidence allow a putative class member who did not have a storm damage claim to make a prima face showing that Mountain West breached the insurance contract in handling their claim? How is determining whether Mountain West's internal practices regarding storm damage claims breaches its own insurance contract susceptible to class-wide proof when the class includes those who did not make a storm damage claim? By establishing such a broad definition, Judge Watters holds, the Plaintiffs' classes will necessarily include members, who did not suffer any damages as a result of Mountain West's alleged practices either because the insured did not make a claim to repair storm damages or because the extent of the insured's damages were such that it was not reasonably necessary to require the services of a general contractor. Without conducting an individual assessment of each putative class member's claim, the Court would have no way of knowing who suffered damages and had standing to continue in the class and who did not. Judge Watters points out that the need for this individual inquiry outweighs the presence of a common question and creates a predominance problem numerous other courts have found wanting for class certification. This Court is similarly not persuaded and finds that the Plaintiffs have not met their burden to demonstrate class-wide predominance under Rule 23(b)(3). The Plaintiffs concentrate the bulk of their argument on the third factor by arguing that a class action would be superior to individual litigation due to the relatively small damage claims each class member could assert. While the size of various class members' claims may vary, it is reasonable to expect that the class members are better off pooling their resources together rather than bringing individual claims. The Plaintiffs also assert a class action would be more desirable than separate litigation to conserve judicial resources and time. Mountain West responds that a class action is not superior in this instance because whether claimants are entitle to GCOP is dependent on numerous policy-based factual determinations. Judge Watters opines that determining whether each class member in this case has the right to recover damages would require that individual to litigate numerous issues including whether their claim involved storm damages and whether their claimed damages reasonably required the services of a general contractor. Given these complexities, the Court agrees with Mountain West that a class action is not superior to individual adjudication. Judge Watters, therefore, rules that Defendant Mountain West Farm Bureau Mutual Insurance Company's Motion to Deny Class Certification is granted. Plaintiffs Jodie and Andy Drange's Cross Motion for Class Certification is denied. A full-text copy of the Court's Order dated Sept. 1, 2022, is available at https://tinyurl.com/3nz29vt8 from Leagle.com. NAVIENT CORP: 2nd Cir. Affirms Settlement Approval in Hyland Suit ----------------------------------------------------------------- In the case, KATHRYN HYLAND, MELISSA GARCIA, JESSICA SAINT-PAUL, REBECCA SPITLER-LAWSON, MICHELLE MEANS, ELIZABETH KAPLAN, JENNIFER GUTH, MEGAN NOCERINO, ELIZABETH TAYLOR, AND ANTHONY CHURCH, EACH INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees v. NAVIENT CORPORATION, NAVIENT SOLUTIONS LLC, Defendants-Appellees v. WILLIAM YEATMAN, RICHARD ESTLE CARSON, III, Objectors-Appellants, Docket Nos. 20-3765-cv, 20-3766-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirms the judgment of the U.S. District Court for the Southern District of New York: -- certifying a class for settlement purposes under Federal Rule of Civil Procedure 23(b)(2); -- approving the class settlement; and -- approving service awards of $15,000 to the named Plaintiffs. In 2007 the federal government created the Public Service Loan Forgiveness program ("PSLF") to help address the problem of overwhelming student debt. Under PSLF, teachers, social workers, police officers, and others working in public service may have their federal student debt forgiven after 120 qualifying payments. To administer the program, the federal Department of Education contracts with for-profit "servicing companies," including Navient, which alone services more than $205.9 billion in federal student loans. Navient aims to help borrowers "understand the complex array of federal loan repayment options so they can make informed choices about the plans that are aligned with their financial circumstances and goals." In October 2018, however, a group of public servants who had contacted Navient for help repaying their loans (collectively, "Plaintiffs") filed a putative class action lawsuit in the Southern District of New York, alleging that Navient had not "lived up to its obligation to help vulnerable borrowers get on the best possible repayment plan and qualify for PSLF." The Plaintiffs claimed that Navient had "deceived borrowers by erroneously informing them PSLF was not available to them," "misled borrowers by stating they were 'on track' for PSLF when in fact their repayment plan did not qualify for PSLF," and "advised borrowers not to submit paperwork that would verify their employment and other qualifying factors for PSLF." As a result, according to the Plaintiffs' amended complaint, borrowers were "denied loan forgiveness at alarming rates, with horrifying effects on the borrowers and their families and communities." The Plaintiffs brought a number of tort and contract claims, as well as claims under state statutes protecting against unfair and deceptive trade practices. Navient's business practices, they asserted, were largely to blame for their injuries. They alleged that Navient structured employee compensation "to incentivize short calls by rewarding employees for rushing borrowers off the phone, thereby preventing borrowers from receiving full and accurate information about their best repayment options." They also alleged that Navient's employees, looking for quick and easy solutions to present on the phone, pushed cash-strapped borrowers to enter loan forbearance, despite the availability of more flexible repayment plans and the fact that forbearance pauses PSLF-qualifying payments and can increase the total amount a borrower ultimately owes. In addition to various sub-classes based on geography, the Plaintiffs proposed a nationwide class of public servants who have or had loans serviced by Navient and who contacted the company regarding their eligibility for PSLF, as well as a nationwide injunctive class of borrowers who have loans actively serviced by Navient, previously contacted Navient about PSLF eligibility, and intended to contact it in the future regarding PSLF eligibility. Navient moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, which the District Court (Cote, J.) granted in part, dismissing all claims except "the claim brought under New York's General Business Law Section 349," which prohibits "deceptive acts or practices in the conduct of any business or in the furnishing of any service" in the state. At a hearing in July 2019 Judge Cote informed the parties that she saw an enormous hurdle to certifying the class. Spurred in part by Judge Cote's comments, the parties reached a settlement in April 2020 in which they agreed to seek certification of a mandatory nationwide settlement class pursuant to Rule 23(b)(2). The class members also agreed to release their claims for non-monetary relief, though they retained the right to "file individual lawsuits for monetary relief on a non-class basis and excluding Aggregate Actions" of five or more individuals. In return, Navient agreed to implement a number of business reforms, including (1) enhancing internal resources for call-center representatives by, among other things, "updating job aids to clarify that customer service representatives should discuss loan forgiveness including PSLF with borrowers prior to offering forbearance"; (2) updating written communications with borrowers by "creating forms that can be sent via email to borrowers who request additional information about PSLF"; (3) improving its website and chat communications with borrowers by "requiring customer service representatives to look for keywords or phrases that indicate borrowers' possible eligibility for forgiveness programs"; and (4) training customer service representatives to follow the new practices, and regularly monitoring their calls to ensure compliance. In what the parties and the District Court called a cy pres -- or "next best" -- award, Navient also agreed to contribute $1.75 million (later increased to $2.25 million) to establish a nonprofit that would "provide education and student loan counseling to borrowers employed in public service," and "generate administrative and legislative reforms" to improve PSLF. A project proposal estimated that the new organization could reach a projected 7,700 to 11,250 borrowers a year. In June 2020 the District Court preliminarily approved the settlement agreement and the cy pres recipient. The District Court also conditionally certified a Rule 23(b)(2) settlement class of: "All individuals who, at any point from October 1, 2007 to the Effective Date (i) have or had Federal Family Education Loans (FFEL) or Direct Loans serviced by Navient; (ii) are or were employed full-time by a qualifying public service employer or employers for purposes of PSLF; and (iii) spoke to a Navient customer service representative about subjects relating to eligibility for PSLF. The District Court found that the "Defendants were alleged to have acted or refused to act on grounds that applied generally to the Settlement Class," and that certification was therefore proper under Rule 23(b)(2). Less than a month later, the Second Circuit decided Berni v. Barilla S.p.A., 964 F.3d 141 (2d Cir. 2020), which held that a class of past purchasers of a product (in that case, Barilla pasta) could not be certified under Rule 23(b)(2) because they were "not likely to encounter future harm of the kind that makes injunctive relief appropriate." In response to the District Court's request for briefing on the effect of Berni on their proposed settlement, both parties insisted that Berni was distinguishable. At a fairness hearing in October 2020 the District Court agreed with the parties that Berni did not prevent final approval of the settlement. A number of class members at the hearing -- including the Appellants, William Yeatman and Richard E. Carson, III -- objected to the settlement, arguing that the cy pres award would not benefit the class, that the settlement improperly released monetary claims, and that class counsel were compromised by a conflict of interest. The District Court rejected their objections and, citing the factors in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated on unrelated grounds by Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 49-50 (2d Cir. 2000), found the settlement to be fair, adequate, and reasonable. The District Court also granted $15,000 incentive awards to the named plaintiffs based on "evidence that they have suffered attacks personally because they have served in their role and tried to achieve a benefit on behalf of absent class members." It acknowledged that incentive awards could encourage class representatives to agree among themselves to a settlement that was not in the best interests of the class, but it found that such collusion was unlikely. Finally, it denied a request for $500,000 in attorney's fees after learning that the money would be used to reimburse a labor union, the American Federation of Teachers ("AFT"), that had been paying the Plaintiffs' counsel's bills on a monthly basis. On Oct. 9, 2020, consistent with the fairness hearing and its preliminary approval of the settlement, the District Court entered a final order certifying the settlement class, approving the settlement agreement as "in the best interest of the Settlement Class as a whole," approving the $15,000 service awards, denying class counsel's application for attorney's fees, and dismissing the case. The appeal followed. The Appellants challenge the District Court's decision to certify a Rule 23(b)(2) class, approve the settlement, and approve service awards for the named Plaintiffs. The Second Circuit reviews each of these decisions for abuse of discretion. A district court abuses its discretion when its decision "rests on a legal error or clearly erroneous factual finding, or falls outside the range of permissible decisions." Before considering whether the District Court properly certified the class under Rule 23(b)(2), the Second Circuit addresses the threshold issue of standing. Some class members were no longer using Navient to service their loans when the class was certified. THe Appellants, citing Berni, argue that the class as a whole therefore lacked standing to pursue injunctive relief. The Second Circuit disagrees. It finds that the amended complaint plausibly alleged that the named Plaintiffs were likely to suffer future harm because they continued to rely on Navient for information about repaying their student loans. At least six of the named Plaintiffs continue to have a relationship with Navient. That is enough to confer standing on the entire class. In a class action, once standing is established for a named plaintiff, standing is established for the entire class. Having satisfied ourselves that the class has standing, the Second Circuit turns to whether the District Court abused its discretion in certifying the settlement class. It holds that the District Court did not abuse its discretion when it certified the settlement class under Rule 23(b)(2). Navient has agreed to implement a number of business-practice enhancements. Its reforms will benefit class members whose loans continue to be serviced by it. But the reforms will also benefit the remaining class members who, for example, are no longer with Navient or who no longer have student loans, by providing them accurate information about PSLF and helping them determine whether they have viable individual claims for damages. The evidence of these benefits, which plausibly accrue to even those class members who have paid off their loans in full or no longer have Navient-serviced loans, supports the District Court's finding that the settlement was in the best interest of the class. The Appellants' challenge to the District Court's approval of the settlement itself fares no better. The District Court carefully analyzed each of the nine factors set out in City of Detroit v. Grinnell Corp. to evaluate the fairness, reasonableness, and adequacy of a class settlement: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. In particular, in considering the final three factors, the Second Circuit says the court reasonably concluded that although Navient could have "withstood a greater judgment," the settlement was "absolutely within the range of reasonable settlements," especially "because there was a grave risk that there would have been no recovery at all" had the case proceeded. It finds no abuse of discretion in the District Court's application of the Grinnell factors to the facts before it. The Appellants also argue that a cy pres award is not appropriate if it is feasible to distribute the funds that support the award directly to the class instead. This argument, however, misconstrues the settlement fund as a damages award that was redistributed to Public Service Promise through the cy pres doctrine. But the settlement fund never belonged to class members as damages (indeed, the class members expressly reserved their individual right to later sue Navient for money damages), and there is no evidence to suggest that Navient would have otherwise agreed to distribute the funds to the class. The Appellants maintain that the cy pres award to Public Service Promise unlawfully compels speech in violation of the First Amendment. The Second Circuit rejects their constitutional challenge to the settlement. Nothing about the settlement "required the court to establish the terms of the agreement." Without more (and outside the context of a claim of discrimination under the Equal Protection Clause), "mere approval of or acquiescence in the initiatives of a private party is not sufficient" to constitute state action. The private class settlement agreement in this case thus "may be enforced, without implicating the First Amendment." The Appellants also object to the relationship between the Plaintiffs' counsel and AFT, the labor union that paid the Plaintiffs' counsel's bills. They argue that AFT's presence "strongly suggests that the interests of the class were not adequately represented" under Rules 23(a)(4) and 23(g). In advancing this claim, however, the Second Circuit finds that the Appellants have not pointed to any evidence that conflicts with Judge Cote's finding that "the motive behind AFT acting as it has and the commitment it has shown in the litigation is nothing but admirable." Nor, on review of the record, it sees evidence that the class counsel abandoned the litigation or otherwise acted in bad faith in pursuing this case. To the contrary, the counsel agreed to settle only after the District Court indicated that Rule 23(b)(3) certification would likely fail. Absent settlement, the class members here may not have received anything at all. Finally, the Appellants challenge the District Court's decision to approve service awards for the named Plaintiffs, arguing that such awards are prohibited under a pair of nineteenth-century Supreme Court cases, Trustees v. Greenough, 105 U.S. 527 (1882), and Central R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885). The Second Circuit is not persuaded. It holds that the District Court offered compelling reasons for compensating the class representatives, including that they "opened their lives to scrutiny"; "laid bare their financial circumstances, their career choices, and their personal histories"; suffered personal attacks; and were "subjected to vitriol." These determinations, which were supported by the record, did not lie outside the bounds of the District Court's discretion. The Second Circuit has considered the Appellants' remaining arguments and concludes that they are without sufficient merit to warrant reversal. For the foregoing reasons, it affirms the judgment of the District Court. A full-text copy of the Court's Sept. 7, 2022 Order is available at https://tinyurl.com/cjh2an92 from Leagle.com. CAITLIN J. HALLIGAN -- challigan@selendygay.com -- (Faith E. Gay -- fgay@selendygay.com -- Yelena Konanova -- ykonanova@selendygay.com -- David A. Coon -- dcoon@selendygay.com -- Max Siegel -- MSiegel@selendygay.com -- on the brief), Selendy & Gay PLLC, New York, NY; Mark Richard -- richard@phillipsrichard.com -- Phillips, Richard & Rind, P.A., Miami, FL, for Plaintiffs-Appellees Kathryn Hyland, Melissa Garcia, Jessica Saint-Paul, Rebecca Spitler-Lawson, Michelle Means, Elizabeth Kaplan, Jennifer Guth, Megan Nocerino, Elizabeth Taylor, and Anthony Church, each individually and on behalf of all others similarly situated. Ashley M. Simonsen -- asimonsen@cov.com -- Covington & Burling LLP, Los Angeles, CA; Andrew A. Ruffino -- aruffino@cov.com -- Covington & Burling LLP, New York, NY, for Defendants-Appellees Navient Corporation, Navient Solutions, LLC. ANNA ST. JOHN -- anna.stjohn@hlli.org -- Hamilton Lincoln Law Institute, Center for Class Action Fairness, Washington, DC, for Objector-Appellant William Yeatman. ERIC ALAN ISAACSON -- ericalanisaacson@icloud.com -- Law Office of Eric Alan Isaacson, La Jolla, CA, for Objector-Appellant Richard Estle Carson, III. NEGRIL INC: Misclassifies Clinical Staff, Adam Suit Alleges ----------------------------------------------------------- CYNTHIA ADAMS, NATHTEADRA ADAMS, DANIEL BRANNOCK, TONYA CRAIGHEAD, ADRIENNE HAGWOOD, CHARLES HAIRSTON, LESLIE DIANA KING, CHRISTINA KATRINA MARTIN, LINDSAY TAYLOR MOORE, LINDY MARIE PENN, KIMBERLY PRUITT, ABIGAIL REYNOLDS, WILLIE REYNOLDS, JR., ANGELA SMITH, PRECILLA STONE, and ROBIN WELLS, individually on behalf of themselves, and on behalf of all others similarly situated, et al., Plaintiffs v. NEGRIL INCORPORATED and LEGACY WELLNESS LLC, Defendants, Case No. 4:22-cv-00107-TTC (W.D. Va., Sept. 6, 2022) is a collective/class action brought by the Plaintiffs to recover overtime wages, regular wages, liquidated damages, and other applicable damages pursuant to the Fair Labor Standards Act, the Virginia Wage Payment Act, and the Virginia Wage Payment Act. The Plaintiff also seeks to recover damages associated with independent contractor misclassification. The named Plaintiffs, and those similarly situated, were Qualified Mental Health Professionals, Qualified Mental Health Paraprofessionals, case workers, care coordinators, back-up care coordinators, and other clinical staff who provided necessary labor to provide mental health skill building and other services and who worked for the Defendants within the last three years. The Plaintiffs and those similarly situated were misclassified as independent contractors effective around January 1, 2022. As independent contractors, Defendants failed to pay these individuals overtime in accordance with the FLSA, says the suit. Negril Incorporated is in the business of providing services to individuals with intellectual disabilities.[BN] The Plaintiffs are represented by: Brittany M. Haddox, Esq. Monica L. Mroz, Esq. STRELKA EMPLOYMENT LAW Warehouse Row 119 Norfolk Avenue, S.W., Suite 330 Roanoke, VA 24011 E-mail: brittany@strelkalaw.com monica@strelkalaw.com - and - Craig J. Curwood, Esq. Zev H. Antell, Esq. BUTLER CURWOOD, PLC 140 Virginia Street, Suite 302 Richmond, VA 23219 Telephone: (804) 648-4848 E-mail: craig@butlercurwood.com zev@butlercurwood.com NEW YORK CITY: Court Grants Bid to Dismiss Corchado v. Carter ------------------------------------------------------------- In the case, FRANKIE CORCHADO, Plaintiff v. WARDEN CARTER, et al., Defendants, Case No. 21-CV-8984 (VSB) (S.D.N.Y.), Judge Vernon S. Broderick of the U.S. District Court for the Southern District of New York grants the unopposed motion to dismiss the Plaintiff's Complaint. On Nov. 1, 2021, Pro se Plaintiff Corchado filed his Complaint, which he identified as "class action," utilizing the Southern District of New York's Prisoner Complaint form. The Plaintiff brings claims against Warden Carter, Captain Guerra, Captain John Doe, and Captain Horton for violations that occurred at the Vernon C. Bain Correctional Center on Oct. 5, 2021. The Plaintiff alleges that the Defendants violated his Eighth and Fourteenth Amendment rights. According to him, he and other inmates were deprived of toilet paper, soap, and toothbrushes for two to three days. He states that Defendant Horton, "the facility storehouse/supply room captain supervisor," knew or should have known that the Plaintiff and the other inmates needed these materials. He also alleges that Carter, the facilities warden, and Defendant Guerra, the "3-AA Housing Unit Supervisor Captain," knew or should have known that Plaintiff and the other inmates endured those living conditions for two to three days. The Plaintiff further alleges that, after he notified Defendant Guerra of the issue, Guerra pressed her emergency security button, which led to him and the other inmates being placed in hand restraints and taken to the facilities intake holding cells. There, Defendant John Doe, the shift facilities supervising intake captain, knew or should have known that "14th Amendment violations of corporal punishment" were occurring. The Plaintiff claims that the toilet water was then shut off and the inmates were not given food or water for seven to eight hours. The Plaintiff alleges that, as a result of the Defendants' violations, he was robbed of proper nutrition, was unable to perform normal daily activities, and that he suffered nausea and headaches from dehydration and bleeding gums due to the inaccessibility of toothbrushes. He claims that he suffered psychological, mental, and emotional harm from the Defendants' actions. He seeks punitive and "compensative" damages, an order deterring the Defendants and the facility's corrections officers and staff from using corporal punishment, and an order to provide the inmates the necessary hygiene materials. On Dec. 1, 2021, after the Plaintiff filed his Complaint, Chief Judge Laura Taylor Swain granted the Plaintiff's application to proceed in forma pauperis. The case was then assigned to Judge Broderick on Dec. 3, 2021. On March 7, 2022, the Defendants filed a motion to dismiss, and a memorandum of law in support. On that same day, the Defendants filed a certificate of service to show that they served the Plaintiff with the notice of the motion to dismiss, the supporting memorandum of law, and the Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings. The Plaintiff has not filed an opposition to the Defendants' motion to dismiss, sought an extension of time to respond to the motion, nor taken any other action in the case since filing the Complaint. The Defendants claim that the Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1995 ("PLRA"). The PLRA precludes an incarcerated individual from bringing any action "with respect to prison conditions," whether under Section 1983 or any other federal law, unless he exhausts all available administrative remedies. The purpose of the PLRA is "to reduce the quantity and improve the quality of prisoner suits and to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." This requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong," including claims related to conditions of confinement. Exhaustion must be "proper," meaning that a plaintiff must comply with the particular grievance procedures of the institution to which he is confined. Thus, to assess whether a plaintiff exhausted his remedies, a court must carefully examine the applicable grievance procedures at a plaintiff's correctional facility available at the time of the events alleged the complaint. Judge Broderick explains that the New York City Department of Corrections ("DOC") administers a grievance procedure entitled the Inmate Grievance Resolution Program ("IGRP") for inmates at its facilities. To the extent an inmate's grievance is subject to the IGRP, the inmate must first submit the grievance with the Inmate Grievance Resolution Committee ("IGRC") within 10 business days of the condition giving rise to the grievance, using a specific form or calling 311 to file a complaint. The IGRC then has seven business days to investigate the submission and determine whether it should remain open or closed. If the inmate disagrees with the IGRC's resolution, he may appeal to the facility's Commanding Officer, who then has five business days to issue a determination. If the inmate is also dissatisfied with the Commanding Officer's decision, he has two business days in which he may appeal the decision to the Division Chief. The Division Chief then has five business days to issue a decision. The inmate may then appeal that decision to the Central Office Review Committee within two business days. Within five business days, members of the Central Office Review Committee must submit their decision on the appeal. Based on the face of the Complaint, Judge Broderick finds that the Plaintiff could not possibly have properly exhausted his administrative remedies before filing the lawsuit. The Plaintiff alleges that the events giving rise to the Complaint occurred on Oct. 5, 2021. He then delivered the Complaint to prison authorities for mailing on Oct. 12, 2021. Since "under the 'prison mailbox rule,' a submission from an incarcerated pro se litigant is generally deemed to have been filed when it is given to prison officials," Judge Broderick concludes that only seven days passed between the alleged violations and the Plaintiff's filing the Complaint. Given the number of days required to satisfy each step of the IGRP grievance process, it is impossible that the Plaintiff completed the grievance process before filing his Complaint. The Plaintiff therefore failed to exhaust his administrative remedies, making his Complaint premature and in violation of the PLRA. Even reading the Plaintiff's Complaint "to raise the strongest arguments that it suggests," Judge Broderick finds that it is clear from the face of the Plaintiff's Complaint that he failed to exhaust his administrative remedies and the Complaint is not plausible on its face. The Plaintiff's Complaint must therefore be dismissed. Judge Broderick concludes that because the Plaintiff did not exhaust his administrative remedies before filing the Complaint in violation of the PLRA, he grants the motion to dismiss. The Clerk of Court is directed to mail a copy of the Opinion & Order to Pro se Plaintiff, to terminate all open motions on the docket, and to close the action. A full-text copy of the Court's Sept. 7, 2022 Opinion & Order is available at https://tinyurl.com/ysbmr4my from Leagle.com. Frankie Corchado, Bronx, New York, Pro se Plaintiff. Min Kyung Michelle Cho, New York City Law Department, New York, New York, Counsel for the Defendants. NISSAN MOTOR: Court Issues Final Judgment in Terteryan Class Suit ----------------------------------------------------------------- Judge George H. Wu of the U.S. District Court for the Central District of California, Western Division, issued a Final Judgment in the lawsuit styled ARAM TERTERYAN, TATYANA DAVTYAN, and MARINE DAVTYAN, individually and on behalf all others similarly situated, Plaintiff v. NISSAN MOTOR ACCEPTANCE CORPORATION, Defendant, Case No. CV 16-2029-GW-KSx (C.D. Cal.). On Aug. 29, 2022, the Court entered its Order finally approving the class action settlement of this case. Judge Wu holds that this judgment applies to and binds the named Plaintiffs, Aram Terteryan, Tatyana Davtyan and Marine Davtyan, Defendant Nissan Motor Acceptance Company LLC, formerly known and sued as Nissan Motor Acceptance Corp. ("NMAC"), and the certified plaintiff settlement class defined as: a. all persons in the United States to whose cellular tele- phones NMAC placed one or more non-emergency Calls b. using equipment that constitutes or may constitute an automatic telephone dialing system or an artificial or prerecorded voice c. during the Class Period and d. who were not a party to any agreement with NMAC. NMAC, any affiliate or subsidiary of NMAC, any entities in which any of such companies have a controlling interest, the staff of the Court, and counsel are excluded from the class. The terms of the Settlement Agreement and Release are approved and incorporated into this judgment by this reference. Each named plaintiff and each class member is bound by the terms of sections 2.32, 13.01-13.03 and 13.05 of the Settlement Agreement. As the appointed the Claims Administrator in this case, KCC Class Action Services will distribute net settlement funds in accordance with section 7.10 of the Settlement Agreement and the Final Approval Order. The Claims Administrator will pay any remaining unused funds to The Samuelson Law Clinic, an experiential clinic at the University of California, Berkeley School of Law as provided in section 7.10(f) of the Settlement Agreement. As the appointed class representatives for the plaintiff settlement class, Plaintiffs Aram Terteryan, Marine Davtyan, and Tatyana Davtyan have each been awarded $10,000 which the Claims Administrator will pay to them from the settlement funds, as provided in sections 5.04 and 7.10(b) of the Settlement Agreement. As the appointed counsel for the plaintiff settlement class, the law firms of Kemnitzer, Barron & Krieg, L.L.P. and Lyngklip & Associates have been awarded $733,333.00 in attorney's fees and $128,927.00 in costs, which the Claims Administrator will pay to class counsel from the settlement funds, as provided in section 7.10(a) of the Settlement Agreement. The action is dismissed with prejudice. However, the Court retains jurisdiction to interpret, implement, enforce, and resolve disputes regarding the Settlement Agreement and the Claims Administrator's distribution of funds pursuant to that Agreement. A full-text copy of the Court's Final Judgment dated Sept. 1, 2022, is available at https://tinyurl.com/5939vtxh from Leagle.com. NURTURE INC: N.D. California Narrows Claims in Sanchez Class Suit ----------------------------------------------------------------- In the case, MELISSA SANCHEZ, Plaintiff v. NURTURE, INC., Defendant, Case No. 5:21-cv-08566-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, grants in part and denies in part the Defendant's motion to dismiss the Plaintiff's complaint. Ms. Sanchez filed the class action alleging that the Defendant's products have been improperly labeled and misbranded in violation of several California and federal laws such as, the Consumers Legal Remedies Act ("CLRA"), False Advertising, Business and Professions Code ("FAL"), and the Unfair Competition Law ("UCL"). On Nov. 3, 2021, the Plaintiff filed a complaint against the Defendant, alleging that its products have been improperly labeled and misbranded in violation of several California and federal laws such as, the CLRA, the FAL, and the UCL. She also alleges claims for unjust enrichment and common law fraud. The Defendant manufactures, distributes, markets, advertises, and sells a variety of baby and toddler food products under the brand names "Happy Baby" and "Happy Tot." The Plaintiff is a California consumer who began purchasing Happy Tot baby food pouches for her child in the following varieties: Happy Tot Morning Baby Food Pouch Organic Blend-Banana, Blueberry, Yogurt, & Oats; Happy Tot Super Smart Baby Food Pouch-Banana, Mango, Spinach with Coconut Milk; Happy Tot Super Bellies Baby Food Pouch-Bananas, Carrots & Strawberries; Happy Tot Super Morning Baby Food Pouch-Apples, Cinnamon Yogurt & Oats with Superchia; Happy Tot Super Morning Baby Food Pouch-Bananas, Dragonfruit, Coconut Milk & Oats; and Happy Baby Strawberry & Beet Superfood Puffs. She purchased the products from Buy Buy Baby and Target in San Jose, California. The Plaintiff alleges that the "Defendant misbrands its baby and toddler food products by making nutrient content claims on the product packages that are strictly prohibited by the Food and Drug Administration ("FDA"), and by misleading purchasers into believing that its products are healthier than other products for children under two years of age in order to induce parents into purchasing Defendant's products." She alleges that the following representations on the packaging of the purchased and other unpurchased food products were unlawful and/or misleading: grams of protein, grams of fiber, and/or milligrams of omega-3s, and implied nutrient content claims or health claims. She alleges that she made each of her purchases after reading the nutrient content claims on the product labels. The Plaintiff provided an example of two claims on the front label of Happy Tot Morning Baby Food Pouch Organic Blend-Banana, Blueberry, Yogurt, & Oats food pouch, which states, "2g Fiber," and "600mg Omega-3 ALA." The Plaintiff further alleges that she paid more money for the Defendant's products than she would have paid if the products did not contain nutrient content claims. She also alleges that within the class period of Nov. 3, 2017, and the present, she and other members of the Class have been economically damaged as the products are worth less than their purchase price. Further, she provides an expansive list of purchased and unpurchased products that allegedly have unlawful or misleading claims on the products. Before the Court is the Defendant's motion to dismiss the Plaintiff's complaint under Federal Rules of Civil Procedure 12(b)(6) and 9(b). On Feb. 11, 2022, the Plaintiff filed an opposition, to which the Defendant filed a reply. First, the Defendant argues that the Plaintiff lacks Article III and statutory standing to challenge label statements on products they did not see or buy. The Plaintiff purchased six products from the Defendant but challenges the labeling on 54 products. It is undisputed that the Plaintiff purchased products from the Defendant. The Defendant asserts, however, that the Plaintiff lacks standing to challenge the 48 other products that she did not purchase because she suffered no economic injury as to those products. In opposition, the Plaintiff argues that she still has standing because the unpurchased products are substantially similar to the products that she did purchase. Judge Davila finds that the Plaintiff provided a chart listing each challenged product and the nutrient content claim. The purchased products are food pouches and puffs. Each of the unpurchased food pouches and puffs product claims appear to be similar in nature both in name and in ingredients. Thus, the alleged implied nutrient content claims are substantially similar, and the Plaintiff has standing to pursue claims regarding unpurchased food pouches and puff products. However, the unpurchased products of bowls, bars, cereals, baking mixes, greek yogis, creamies, and cookies are not sufficiently similar to the purchased products, Judge Davila holds. The composition of the products varies significantly. These unpurchased products contain different ingredients from the purchased products and are thus markedly distinct from the purchased products. This is dispositive. Based on the foregoing, the Plaintiff has Article III and statutory standing to pursue their claims regarding unpurchased pouch and puff products. However, she lacks standing to pursue claims regarding unpurchased bowls, bars, cereals, baking mixes, greek yogis, creamies, and cookies. Next, the Defendant argues that its labels did not violate FDA regulations, and thus there was no unlawful practice. Judge Davila holds that whether the labels are in violation of FDA regulations depends on whether the statements on the labels such as "2g Fiber" and "600mg Omega-3 ALA" are nutrient content claims as defined by FDA regulations. While permitted for products for older children and adults, nutrient content claims are not permitted for products intended for specific use by children below two years of age. The Complaint adequately alleges that the products at issue are marketed for children under the age of two. Thus, FDA regulation prohibits nutrient content claims on the challenged products. Likewise, the two statements identified by the Defendant -- "Omega-3s (ALA) from Chia seeds to help your toddler get the most out of every bite. Here's to a happy & healthy start!" and "Beta-Glucan helps support your tot's immune system. Prebiotic Fiber helps support digestive health. Here's to a happy & healthy start!" -- are not nutrient content claims because they describe the function of the nutrient, not the product itself. This same reasoning applies to the other statements identified by the Plaintiff like "With iron to help support brain development." Claims about iron are not unlawful. FDA regulations permit nutrient content claims about minerals, like iron, that "describe the percentage of a vitamin or mineral in the food, including foods intended specifically for use by infants and children less than 2 years of age, in relation to a Reference Daily Intake (RDI) as defined in Section 101.9." However, the inclusion of statements on the challenged products about the levels of a nutrient -- i.e., 680 mg Omega-3 (ALA) -- are nutrient content claims, even if the information was also included in the Nutrient Facts Panel. Because the labels contain nutrient content claims in violation of FDA regulation, the Plaintiffs have adequately alleged that Defendant engaged in an unlawful practice as to these specific type of nutrient content claims. With respect to CLRA, FAL, Common Law Fraud, and UCL Fraudulent Practice Claims, Judge Davila holds that no reasonable consumer would be misled by the inclusion of truthful statements about nutrient contents on the front of the challenged labels, and thus the Plaintiffs have not stated a claim for the violation of any of these laws. First, there is no support in the Complaint for the proposition that there is a lack of evidence as to whether the nutrients touted on the label provide a benefit to children. Second, the statements about the nutrient contents are facially true, and do not invoke comparisons to other products. The challenged statements, while in violation of FDA regulation, are fully truthful and contain the same information found elsewhere on the label. It requires many inferential leaps for a reasonable consumer to reach the conclusion that the absence of such language on other products would mean those products did not contain those same nutrients. Moreover, a consumer concerned about these issues could simply compare the Nutrition Facts Panel on each product he or she was interested in purchasing. Accordingly, "no reasonable consumer would be misled" by the truthful statements on the label to believe that other products did not contain these same nutrients and were therefore superior. Hence, the Plaintiff fails to show at the pleading stage that a reasonable consumer would be misled by the challenged statements on Defendant's product labels. The motion to dismiss is granted as to the FAL, CLRA, and common law fraud claims, as well as the "fraudulent" prong of the UCL claim. The Defendant further argues that the unjust enrichment claim is based on the same factual basis as the other claims, and thus because the Plaintiff "'failed to state claims under the California consumer protection statutes due to implausibility, the unjust enrichment claim fails as well.'" The Plaintiff, however, has adequately stated a claim for their UCL "unlawful" claim. Further, the Defendant does not make any argument about the substance of the unjust enrichment claim itself. Accordingly, at this stage, the unjust enrichment claim may proceed. Finally, the Defendant argues that the Plaintiff's FAL and UCL claims must be dismissed because they only allow for equitable relief, and the Complaint makes clear that legal remedies pleaded under the CLRA and common law fraud in the form of money damages are adequate. However, Judge Davila holds that the FAL, CLRA and common law fraud claims have not been adequately pled. Thus, as the Complaint currently stands, the UCL claim and the unjust enrichment claims are the only viable claims, and the Defendant's arguments concerning the availability of legal remedies under the CLRA and common law fraud claims are moot. Likewise, the argument that the Plaintiff cannot pursue injunctive relief because she has not alleged inadequate remedies at law is moot, because at this juncture the Plaintiff has not adequately pled claims seeking legal remedies. For the foregoing reasons, Judge Davila denies the motion to dismiss as to the "unlawful" theory of the UCL claim and the unjust enrichment claim. He grants the motion to dismiss in all other respects. The Plaintiff is granted leave to amend. Should she choose to amend her complaint, the amended complaint is due within 30 days of the filing of the Order. A full-text copy of the Court's Sept. 7, 2022 Order is available at https://tinyurl.com/4znz9cej from Leagle.com. ONEIDA COUNTY, NY: Settlement Deal in Women's Jail Suit Proposed ---------------------------------------------------------------- H. Rose Schneider, writing for Observer-Dispatch, reports that a settlement in a class action lawsuit over conditions at the Oneida County jail is in the end stages of being reached, attorneys say. Should it go through, women held at the jail will be able to stay in the same type of housing as their male counterparts. The lawsuit, originally filed in May 2020 by three women incarcerated at the jail against Oneida County Sheriff Robert Maciol and Chief Deputy of Corrections Lisa Zurek, alleged women were discriminated against after being moved to an older, smaller section of the jail at the start of 2020. Women said they were subjected to worse conditions than their male counterparts -- who were held in more modern housing -- including windowless cells and inferior access to showers, phones, recreation equipment and work programs. A joint motion for final approval of a settlement agreement for the lawsuit was filed on Sept. 6, according to records with the U.S. District Court for the Northern District of New York. A final hearing on the settlement will be held at noon Friday, Oct. 21, at the federal courthouse in Albany. Women returned to the newer, podular-style section of the jail in January after a federal judge granted a preliminary injunction filed in the lawsuit. Under the terms of the settlement, women in general custody would continue being held there and have access to the same amenities as their male counterparts, including access to an outdoor recreation yard and the same work and education programs. "It's really an important win for the women that were there initially," Joshua Cotter, an attorney with Legal Services of Central New York representing the plaintiffs, said. "Now women at the jail are going to benefit greatly from their advocacy." All three women who originally filed the lawsuit -- Sarah Barrett, Nicole Williamson and Shannon Terrell -- are no longer at the jail. The county will also pay $133,853 in legal fees. Barrett, the only plaintiff remaining on the lawsuit, will receive $5,000 for time she spent on the case, according to court records. "Without her this wouldn't have happened," Cotter said of Barrett, who had initially spoken with the Observer-Dispatch about the jail conditions in early 2020. Information on the settlement has been posted in women's housing at the Oneida County jail, with information on how they can reach out if they have an objection to the settlement before the hearing, according to an affidavit from Zurek. Cotter said he did not expect any objections to the settlement, making it likely the judge would approve it. David Walsh, an attorney representing Maciol and Zurek, said it was agreed the settlement was the best resolution for both parties. "Throughout litigation there were always discussions between the county and the female inmates as to a resolution," he said. "The big takeaway from that was [the women in general custody] would be housed in the pod units of the jail."[GN] PARADIES SHOPS: Ramirez Appeals Suit Dismissal to 11th Cir. ----------------------------------------------------------- CARLOS RAMIREZ is taking an appeal from a court ruling dismissing his lawsuit entitled Carlos Ramirez, Plaintiff, v. The Paradies Shops, LLC, Defendant, Case No. 1:21-cv-03758-ELR, in the U.S. District Court for the Northern District of Georgia. The Plaintiff, individually and on behalf of all others similarly situated, filed a class action suit against the Defendant for negligence, breach of implied contract, invasion of privacy, and breach of confidence by failing to protect the personal identifiable information (PII) of its employees following a data breach from October 8-13, 2020. On October 4, 2021, the Defendant filed a motion to dismiss the Plaintiff's complaint for failure to state a claim. On July 27, 2022, the Court granted the Defendant's motion to dismiss as to the Plaintiff's negligence and breach of implied contract claims. In addition, the Court denied as moot the Defendant's motion to dismiss as to the Plaintiff's abandoned claims, invasion of privacy and breach of confidence claims. Because no claims remain, the Court dismissed the action and directed the clerk of Court to close the case. The appellate case is captioned as Carlos Ramirez v. The Paradies Shops, LLC, Case No. 22-12853, in the United States Court of Appeals for the Eleventh Circuit, filed on August 26, 2022. The briefing schedule in the Appellate Case states that: -- Appellant's brief is due on or before October 5, 2022; -- Appendix is due no later than 7 days from the filing of the appellant's brief; -- Awaiting Appellant's Certificate of Interested Persons was due on or before September 12, 2022; and -- Awaiting Appellee's Certificate of Interested Persons is due on or before September 26, 2022. [BN] Plaintiff-Appellant CARLOS RAMIREZ, individually and on behalf of all others similarly situated, is represented by: Dylan Artell Bess, Esq. MORGAN & MORGAN, PA 191 Peachtree St. NE, Ste. 4200 Atlanta, GA 30303 Telephone: (404) 965-8811 - and - Ryan D. Maxey, Esq. MORGAN & MORGAN, PA 201 N. Franklin St., Fl. 7 Tampa, FL 33602 Telephone: (813) 424-5630 - and - John Yanchunis, Esq. MORGAN & MORGAN, PA 201 N. Franklin St., 6th Fl. Tampa, FL 33602 Telephone: (813) 221-6583 Defendant-Appellee THE PARADIES SHOPS, LLC, is represented by: Peter N. Hall, Esq. HOLLAND & KNIGHT, LLP 1180 W. Peachtree St. NW, Ste. 1800 Atlanta, GA 30309 Telephone: (404) 817-8412 REDA BELLARBI: Parties Stipulate to Dismiss Brooks' Class Claims ---------------------------------------------------------------- In the lawsuit captioned VALERIE BROOKS, Plaintiff v. REDA BELLARBI AND ASSOCIATES, INC., Defendants, Case No. 2:20-cv-02074-DAD-DB (E.D. Cal.), the U.S. District Court for the Eastern District of California approves the parties' stipulation, which provides that the Plaintiff's class claims are dismissed without prejudice. On Aug. 25, 2022, the parties filed a stipulation to voluntarily dismiss this putative class action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). In particular, the parties stipulated and agreed to the dismissal of the Plaintiff's individual claims with prejudice and the dismissal of her class claims without prejudice. The parties also stipulated that they will each bear their own fees and costs. Pursuant to the parties' stipulation and good cause appearing, the Court ordered that: 1. The action is dismissed with prejudice as to the Plaintiff's individual claims and without prejudice as to her class claims; 2. The parties will bear their own fees and costs in the action; 3. All pending deadlines and hearing dates in the action are vacated; 4. The Clerk of the Court is directed to close the case. A full-text copy of the Court's Order dated Sept. 1, 2022, is available at https://tinyurl.com/t3b6vse9 from Leagle.com. SAMSUNG ELECTRONICS: Fails to Protect Personal Info, Harmer Says ---------------------------------------------------------------- SHELBY HARMER, individually and on behalf of all others similarly situated, Plaintiff v. SAMSUNG ELECTRONICS AMERICA, INC., Defendant, Case No. 2:22-cv-01437-APG-NJK (D. Nev., Sept. 6, 2022) is brought on behalf of the Plaintiff and similarly situated customers of the Defendant whose personally identifiable information was stolen by cybercriminals in a cyber-attack that accessed sensitive information through Samsung's U.S. systems. According to the complaint, on August 4, 2022, a group of cybercriminals had access to certain files on Defendant's computer network and servers containing personal information belonging to the Class Members. The Plaintiff and Class Members were not notified of the data breach until September 2, 2022, almost one month after their information was first accessed. As a result of Defendant's failure to properly secure Plaintiff's and the Class Members' personal information, the cybercriminals obtained extensive personal information including names, contact and demographic information, date of birth, and product registration information, says the suit. The Plaintiff, on behalf of themselves and the Class seeks (i) actual damages, economic damages, emotional distress damages, statutory damages and/or nominal damages, (ii) exemplary damages, (iii) injunctive relief, and (iv) fees and costs of litigation. Samsung Electronics America, Inc. manufactures electronic products. The Company offers televisions, digital cameras, cell phones, storage devices, home appliances, security systems, smartwatches, and computer products.[BN] The Plaintiff is represented by: George Haines, Esq. Gerardo Avalos, Esq. FREEDOM LAW FIRM 8985 S. Eastern Ave., Suite 350 Las Vegas, NV 89123 Telephone: (702) 880-5554 Facsimile: (702) 967-6666 SARA LEE: Agrees to Settle Mislabelling Class Action for $1-M ------------------------------------------------------------- Dan Avery, writing for CNET, reports that a class-action lawsuit claims Sara Lee misrepresented the ingredients in its Sara Lee "All Butter Pound Cake," alleging it actually includes soybean oil and other shortenings. According to plaintiffs in Grayer v. Sara Lee Frozen Bakery, the dessert company, based in the Chicago suburb of Downers Grove, violated Illinois' consumer protection and false advertising laws. In their complaint, they maintain that they wouldn't have paid so much if they'd known the cakes weren't all butter -- and might not have bought them at all. As part of the settlement in the case, Sara Lee agreed to a $1 million payout and to stop labeling the cake as "All Butter Pound Cake." Instead, it will be referred to as "Classic Pound Cake." In an email statement to CNET, Sara Lee denied any wrongdoing and said its decision to settle the false advertising case "to avoid further litigation and distraction of resources from our business." The email added that Sara Lee products "have always been truthfully marketed and labeled." Here's what you need to know about the Sara Lee pound cake settlement, including who's eligible for a check, how much money you can get from the agreement and what you need to file a claim. For more on class-action cases, see if you're eligible for money from Capital One's $190 million payout, T-Mobile's $350 million data-breach suit or Google's $100 million privacy settlement. Who's eligible for money in the Sara Lee settlement? Anyone who bought Sara Lee All Butter Pound Cake products between April 27, 2017, and July 29, 2022, can file a claim. You can submit your claim online or print out a physical form and mail it here: Kroll Settlement Administration, Grayer v. Sara Lee c/o Kroll Settlement Administration LLC P.O. Box 5324 New York, NY 10150-5324 The claim form must be submitted by or have a postmark of Oct. 11, 2022, which is also the deadline to request to be excluded from the settlement. How much money can I get from the Sara Lee pound cake settlement? Sara Lee All Butter Pound Cake Without a receipt you can claim up to $5 from the Sara Lee settlement. Sara Lee Valid class members can receive a cash payment of $1 per product based on how many cakes they bought. The minimum payout for any valid claim is $3. Do I need a receipt to file a claim? Though you don't need one, you'll get more money if you have a receipt. Without proof of purchase, you can claim up to five pound cakes, for a max payment of $5. With proof of purchase, you can claim up to 20 products for a top payment of $20. Regardless of whether you have proofs of purchase, the minimum payout for any valid claim is $3. When will payments in the Sara Lee pound cake case go out? A final approval hearing for the settlement is scheduled for Oct. 20, 2022. If the court approves the deal and there are no appeals, payments will be distributed approximately 44 days later. According to the settlement site, though, if there are appeals, receiving cash payment "may take months or even years." [GN] SEEMAN HOLTZ: Court Denies Schwartz's Bid to Dismiss Millstein Suit ------------------------------------------------------------------- Judge Rodolfo A. Ruiz, II, of the U.S. District Court for the Southern District of Florida denies Defendant Brian Schwartz's motion to dismiss the lawsuit styled FANNY B. MILLSTEIN, Plaintiff v. ERIC HOLTZ, et al., Defendants, Case No. 21-CV-61179-RAR (S.D. Fla.). The cause comes before the Court upon Defendant Brian Schwartz's Motion to Dismiss Amended Class Action Complaint. In his Motion, Schwartz argues that there is no evidence that he participated in the allegedly fraudulent scheme because Schwartz had a back-office role 'focused on financials and accounting' at certain entities where Plaintiff was not an investor, performing ministerial functions, such as overseeing deposits and transfers, while the Plaintiff claims she has properly alleged Schwartz was an active, knowing, and central participant in a $300 million Ponzi-like fraudulent investment scheme through which Schwartz and his cohorts victimized, and profited at the expense of, the Plaintiff and the Investor Class. Essentially, Schwartz's Motion maintains that the allegations, as they relate to him personally, are untrue and he played a minor role, if any, in the fraudulent scheme. However, the Plaintiff alleges Schwartz's role in the scheme was extensive and a motion to dismiss is not the proper vehicle for disputing the truthfulness of a plaintiff's claims; Millstein v. Holtz, No. 21-61179, 2022 WL 3594915, at *1 (S.D. Fla. Aug. 23, 2022) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Thus, the Plaintiff has levied sufficient allegations, taken as true, for the Court to find that the Amended Complaint is "plausible on its face," Judge Ruiz states. The Plaintiff alleges that she and fellow investors ("the Investor Class") were victims of a "Ponzi-like" scheme conducted through an enterprise controlled by Schwartz and his associates. The Amended Complaint avers both tortious misconduct and statutory violations of law arising out of the sale of unregistered non-exempt securities promoted, marketed, and recommended by a network of unregistered agents, who acted as "financial advisors," as described by Defendant Seeman Holtz. This purported promotion and sale of unregistered non-exempt securities to investors--primarily senior citizens--was allegedly orchestrated by Schwartz, along with the heads of Seeman Holtz, Defendants Eric Holtz, and Defendant Marshall Seeman. In addition to the sale of promissory notes ("Notes") that were not properly registered as securities nor qualified for exemption from registration under applicable state securities statutes, the Plaintiff alleges that Seeman, Holtz, Schwartz, and their agents were not properly licensed as financial advisors or properly registered to sell securities like the Notes. The Plaintiff alleges that the outstanding Notes are in default for failure to repay Plaintiff, and the Investor Class, the principal or outstanding interest due to them. She further alleges that based on the terms and guarantees of the Notes, the Notes were advertised as being collateralized by life insurance policies issued to third parties. However, the collateral agent did not protect investors as promised and allowed Seeman, Holtz, Schwartz and their agents to commingle the collateral in the name of, and for the benefit of, entities controlled by themselves or other defendants. In addition to the lack of collateral, the Plaintiff alleges numerous additional misrepresentations associated with the Notes, including: (1) inability to pay interest or repay debts; (2) hidden compensation paid to Seeman Holtz; and (3) failure to use proceeds from the sale of the Notes for the stated purpose. Allegations Against Schwartz Specifically The Amended Complaint alleges that Seeman and Holtz were materially assisted in the SH Enterprise by Schwartz, who primarily acted as the SH Enterprise's untitled chief financial officer, focusing on its financials and accounting. Schwartz helped form and managed Centurion Insurance Services Group, LLC, and subsequently Centurion's various affiliates (collectively, "Centurion"). The Plaintiff alleges that Centurion was formed for use by the SH Enterprise to facilitate the purchase, holding, and servicing of a life settlement portfolio that was acquired using Plaintiff's and the Investor Class's monies, which were invested in unregistered Notes issued by certain limited liability companies that are now listed as defendants. The note-issuing entities loaned funds directly to Centurion so Centurion could purchase, hold, and service the life settlement portfolio. Schwartz served as president and CEO of Centurion. The Plaintiff alleges that by 2013, funds raised primarily from her and the Investor Class by the individual note-issuing entities were not being directly invested in life settlements by the respective entities. Instead, investors' funds were transferred to Centurion and characterized as term loans from the note-issuing entities to Centurion with interest payments to be made annually, unless extended by the entity, which subsequently grew commonplace. In certain loan records documenting these transactions, the face amount of the interest rate the note-Page issuing entities charged to loan funds to Centurion was lower than the interest rate promised by the entities to individual note investors, who essentially and unknowingly were funding these loans. While Schwartz was president and CEO of Centurion, the Plaintiff alleges that Schwartz's salary was at times paid by Seeman Holtz, and Schwartz had several roles in the SH Enterprise, including: (1) operating Centurion without disclosing Seeman's and Holtz's roles to the public; (2) overseeing the deposit of incoming investor funds into the note-issuing entity accounts via wire transfers; (3) overseeing the rapid disbursement of funds back to earlier note-issuing entities to repay earlier investors or to fund life settlement obligations (the latter occurring prior to Centurion obtaining a credit facility for premium payments in December 2018); and (4) accounting for the large number of back-to-back transactions each day. The Plaintiff also alleges Schwartz performed work for specific note-issuing entities by negotiating repayment timetables with investors whose interest payments were past due, without fully disclosing that the SH Enterprise was essentially insolvent and without fully disclosing that these future payments were dependent on the SH Enterprise's ability to raise additional new capital or receive asset transfers from two other entities that were part of the SH Enterprise, which were also purportedly facing insolvency issues. The Plaintiff's Counts Based on these allegations, the Plaintiff alleges nine counts on behalf of herself and the Investor Class: I. Violation of Fla. Stat. Section 517.07(1); II. Violation of Fla. Stat. Section 517.12(1); III. Violation of Fla. Stat. Section 517.301; IV. Breach of Fiduciary Duty; V. Negligence; VI. Violation of Florida's Civil Remedies for Criminal Practices Act, Fla. Stat. SectionSection 772.103(1), (3)-(4), 772.104(1), 777.011, and 777.03(1)(a) ("Florida RICO"); VII. Conspiracy to Violate Florida RICO; VIII. Violation of 18 U.S.C. Section 1962(a), (c)-(d) ("federal RICO"); and IX. Equitable Action for Appointment of Receiver, for Accounting and for Disgorgement of Ill-Gotten Gains, Unjust Enrichment, and Constructive Trust. I. Fraud In his Motion, Schwartz claims that the Plaintiff's Florida securities fraud claims under Fla. Stat. Section 517.301 (Count III) and Florida and federal RICO claims (Counts VI, VII, and VIII) do not satisfy the heightened pleading requirement of Rule 9(b). Additionally, Schwartz argues that the Plaintiff's securities fraud claims under Fla. Stat. Section 517.07(1) and Fla. Stat. Section 517.12(1) (Counts I and II) should be dismissed for failure to state a claim against Schwartz specifically. Due to the immense factual overlap, the Court will address these two grounds simultaneously. Judge Ruiz notes that the Amended Complaint is clear as to the source of the alleged misrepresentations and omissions; when such misrepresentations and/or omissions were made; their content and the way they misled the Plaintiff; and what Schwartz obtained as a consequence of the fraud. Mr. Schwartz asserts that the Plaintiff supposedly admitted he played no role in making the alleged misrepresentations and therefore Plaintiff has failed to meet her burden of pleading fraud with particularity. Judge Ruiz opines that this assertion ignores the allegations in the Plaintiff's Amended Complaint that Schwartz played a key role in, and engaged in misconduct in furtherance of, the fraud committed on Plaintiff and the Investor Class. Schwartz claims that his role was "ministerial" or that he played only a "back-office" role. While this may ultimately be true, the Plaintiff's Amended Complaint alleges Schwartz played a central role as a partner or member of a joint venture with his cohorts Seeman and Holtz, and committed misconduct as an essential participant in the scheme. As the Plaintiff alleges, Schwartz commingled proceeds from this scheme and misappropriated investor funds to both operate and advance the goals of the SH Enterprise, and the SH Enterprise operated from shared common offices with shared common controlling ownership, shared common officers, and shared common employees. The partners then used the commingled funds to pay various expenses, including salaries and bonuses to the SH Enterprises' employees, agents, and/or affiliates. Judge Ruiz finds that this conduct is sufficient to allege a claim under Fla. Stat. Section 517.301 and Florida and federal RICO. While Schwartz argues that liability cannot be extended to him because he did not make any misrepresentations, Judge Ruiz points out that Florida courts have imposed liability on those who did not solicit the purchase from the purchaser, citing Whigham v. Muehl, 500 So.2d 1374, 1380 (Fla. 1st DCA 1987). Accordingly, even if Schwartz never made any affirmative misrepresentations to the Plaintiff or the Investor Class or omitted material information he was required to disclose, Judge Ruiz insists that Schwartz may be held liable under Fla. Stat. Section 517.301 for the misrepresentations and omissions of his fellow partners in the SH Enterprise as alleged in the Amended Complaint. The allegations that Schwartz was an essential member of the scheme to defraud, as well as the conduct of the entity described, are sufficient at this stage of the proceedings, Judge Ruiz opines. Thus, the Plaintiff's claim under Fla. Stat. Section 517.301, as well as her Florida and federal RICO claims, do not warrant dismissal under Rule 9(b). Fla. Stat. Section 517.07(1) prohibits the sale of unregistered securities while Fla. Stat. Section 517.12(1) prohibits dealers, who are not registered to sell securities from selling registered or unregistered securities. Mr. Schwartz claims that these counts must be dismissed as to him specifically because "Mr. Schwartz was merely a back-room finance employee at Centurion, and had no part in the sales and offering of securities at the PPEs where Plaintiff allegedly invested." Based on the conduct, and the court's holding in Whigham, 500 So. 2d at 1380, both the allegations that Schwartz was one of the principal architects in the sale of the notes by the SH Enterprise, and the fact that he negotiated the repayment terms of the note, is sufficient to plausibly allege a violation of Fla. Stat. Section 517.07(1) and Fla. Stat. Section 517.12(1), Judge Ruiz holds. Accordingly, these counts survive Schwartz's Motion to Dismiss. II. Tortious Misconduct In addition to Schwartz's argument that the Plaintiff has failed to properly plead her claims under Florida securities law, he alleges that she has failed to properly plead the element of breach in the claims for breach of fiduciary duty and negligence. Once again, based on the alleged conduct of the SH Enterprise, as well as Schwartz's particular role in the alleged scheme, this argument fails, Judge Ruiz holds. Regarding the fiduciary duty claim, Schwartz argues that the "Complaint does not allege that Mr. Schwartz, in an individual capacity, formed any express agreement with Plaintiff or with any other investor." Judge Ruiz holds that an examination of the law relating to the establishment and breach of fiduciary duty clearly precludes this argument. The Plaintiff alleges Schwartz performed work for specific note-issuing entities by negotiating repayment timetables with investors whose interest payments were past due, without fully disclosing that the SH Enterprise was essentially insolvent and without fully disclosing that these future payments were dependent on the SH Enterprise's ability to raise additional new capital or receive asset transfers from two other entities that were part of the SH Enterprise. Judge Ruiz finds that this negotiation, coupled with the alleged omissions and the fact that Schwartz was receiving payment from Seeman Holtz, is enough to plausibly allege both the existence and breach of fiduciary duty at this stage of the proceedings. Judge Ruiz also finds that Schwartz's argument related to the Plaintiff's negligence claim falls victim to the same infirmities. In addition to the allegations raised generally, the Amended Complaint alleges that Schwartz (1) operated Centurion without disclosing Seeman's and Holtz's roles to the public; (2) oversaw the deposit of incoming investor funds into the note-issuing entities' accounts; (3) oversaw the rapid transfer of funds thereafter from the note-issuing entities' accounts to Centurion's account via wire transfers; (4) oversaw the rapid disbursement of funds back to earlier note-issuing entities to repay earlier investors or to fund life settlement obligations (the latter occurring prior to Centurion obtaining a credit facility for premium payments in December 2018); and (5) accounted for the large number of back-to-back transactions each day. The Amended Complaint further alleges that Schwartz negotiated repayment timetables with members of the Investor Class whose interest payments were past due, without fully disclosing that the SH Enterprise was essentially insolvent. The Court finds that these allegations are sufficient to establish both duty and breach for the Plaintiff's negligence claim (the only two elements challenged by Schwartz). Accordingly, the Plaintiff's negligence claim survives Schwartz's Motion to Dismiss. III. Shotgun Pleading Lastly, Schwartz claims that the Amended Complaint should be dismissed in its entirety because it is an impermissible shotgun pleading. Specifically, Schwartz states that none of the Complaint's nine counts specify the role that he played in the particular statutory violation or breach. Based on the Eleventh Circuit's standard for identifying shotgun pleadings, as well as the role Schwartz allegedly played in the fraudulent scheme, this argument fails, Judge Ruiz holds. The Plaintiff's Amended Complaint does not qualify as a shotgun pleading, Judge Ruiz finds. Although many of the Plaintiff's claims are asserted against all Defendants, the Plaintiff has alleged the factual basis for Schwartz's liability under each cause of action. Judge Ruiz points out, among other things, that it is these allegations, coupled with the fact that Schwartz negotiated repayment tables with members of the investor class, that imputes liability to Schwartz himself. Ultimately, the allegations contained in the Plaintiff's Amended Complaint are sufficient to plausibly support her nine counts. Accordingly, Judge Ruiz ordered and adjudged that the Defendant's Motion to Dismiss is denied. A full-text copy of the Court's Order dated Sept. 1, 2022, is available at https://tinyurl.com/2amc6b4x from Leagle.com. SHERATON LLC: W.D. New York Dismisses Green Wage and Hour Suit -------------------------------------------------------------- The U.S. District Court for the Western District of New York dismisses the putative class action lawsuit titled DORIS GREEN, and CHRISTINIA CASERO, Individually and on behalf of all other similarly situated, Plaintiffs v. THE SHERATON, LLC, and NFNY HOTEL MANAGEMENT LLC, Defendants, Case No. 22-CV-46 (JLS) (JJM) (W.D.N.Y.). On Jan. 14, 2022, Plaintiffs Doris Green and Christina Casero commenced the purported class action under the Class Action Fairness Act, individually and on behalf of individuals who have worked for the Defendants and were paid on an hourly basis. The Plaintiffs allege that the Defendants violated New York Labor Law Section 195(1) and (3) by failing to provide their employees with accurate and timely itemized wage statements and notices. On March 21, 2022, the Defendants moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 28 U.S.C. Section 1332(d)(4)(B). On March 7, 2022, the Court referred the case to United States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. Section 636(b)(1)(A) and (B). Presently before the Court is Judge McCarthy's Report and Recommendation ("R&R"), which recommends that the Defendants' motion should be granted. Specifically, Judge McCarthy recommended dismissal of the complaint based on the Class Action Fairness Act's "home state" exception to jurisdiction. No party filed objections to the R&R, and the time to do so has passed. Although not required to do so, the Court nevertheless has reviewed Judge McCarthy's R&R for error. Based on that review, and absent any objections, the Court accepts and adopts the R&R. For the reasons stated and in Judge McCarthy's R&R, the Defendants' motion to dismiss is granted. The Clerk of Court will close the case. A full-text copy of the Court's Decision and Order dated Sept. 1, 2022, is available at https://tinyurl.com/2p8uyt4n from Leagle.com. SMARTMATCH INSURANCE: Hastings' Bid to Dismiss Granted in Part -------------------------------------------------------------- In the lawsuit captioned STANLEY HASTINGS, JR., Plaintiff v. SMARTMATCH INSURANCE AGENCY, LLC, Defendant, Case No. 4:22-cv-00228-LPR (E.D. Ark.), Judge Lee P. Rudofsky of the U.S. District Court for the Eastern District of Arkansas, Central Division, grants in part and denies in part the Plaintiff's motion to dismiss the Defendant's counterclaim. Plaintiff Stanley Hastings, Jr., sued Defendant SmartMatch Insurance Agency, LLC, for alleged violations of the Telephone Consumer Protection Act of 1991 (TCPA). SmartMatch filed a Counterclaim for common-law fraud under Arkansas state law. Pending before the Court is Mr. Hastings's Motion to Dismiss SmartMatch's Counterclaim. He argues that SmartMatch's Counterclaim alleges insufficient facts to state a viable cause of action, especially in light of Federal Rule of Civil Procedure 9(b)'s particularity requirement. Mr. Hastings is a resident of Little Rock, Arkansas. SmartMatch is a limited liability company located in Kansas City, Missouri. On Dec. 3, 2019, Mr. Hastings or his agent visited a third-party website that allows consumers seeking health insurance quotes to enter their personal information. On this website, he or his agent entered his phone number (and an address belonging to his dad's former business) under the false name "Marvin Taeese." He or his agent then "clicked 'submit' and thereby consented to receive prerecorded calls regarding health insurance quotes." In reliance on this fraudulent information and consent, an unidentified company--not the owner of the website and not SmartMatch--called Mr. Hastings on March 27, 2021, requesting to speak with "Marvin." It is not clear from the Counterclaim whether the unidentified company had any relationship with SmartMatch. In any event, he did not indicate at any point during any call with any third party that his name was, in fact, Stanley Hastings, Jr. Nor did he indicate that his phone number was on the National Do Not Call Registry, that he wanted the call to end, or that he did not want to receive such calls again in the future. On the contrary, Mr. Hastings at least implied that his name was Marvin Taeese and that he was interested in speaking to someone about health insurance quotes. The call was eventually transferred to a SmartMatch agent. SmartMatch purchased this customer lead because Mr. Hastings "feigned interest in health insurance quotes." On March 11, 2022, Mr. Hastings filed a class action Complaint against SmartMatch, stating that his phone number had been filed with the National Do Not Call Registry since 2005 and that a "spoofed" number had called him "approximately a dozen" times in violation of the TCPA. In turn, SmartMatch brought a Counterclaim alleging the facts set forth and asserting that its agent spoke with Mr. Hastings in reliance upon fraudulent information that he or his agent submitted as "Marvin Taeese" to a third-party website and fraudulent information that he provided to third-party callers. Mr. Hastings's pending Motion to Dismiss the Counterclaim has two related arguments: that SmartMatch's Counterclaim fails to sufficiently allege the elements of common-law fraud under Arkansas law and that SmartMatch's Counterclaim fails to assert the specific circumstances of the alleged fraud, as required by Rule 9. Under Arkansas common law, fraud has five elements: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. The essence of Mr. Hastings's argument is that SmartMatch fails to sufficiently allege any of these elements. This case, however, concerns a claim of fraud, Judge Rudofsky notes. So it takes more than usual to state a viable claim at the motion to dismiss stage. To be clear, Judge Rudofsky says, the circumstances of the material misrepresentation must be pled with particularity. An allegation of fraud will only satisfy Rule 9(b)'s particularity requirement (and survive a 12(b)(6) motion to dismiss) if it identifies the who, what, where, when, and how of the material misrepresentation, citing United States ex rel. Costner v. United States, 317 F.3d 883, 888 (8th Cir. 2003); Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir. 1982). Everyone agrees that the first element of common-law fraud--false representation of material fact--needs to be pled with particularity pursuant to Rule 9(b). In this case, there are two alleged material misrepresentations. Each must be pled with particularity. SmartMatch pleads with particularity the "where," "when," and "how" of both misrepresentations. Less clear is whether SmartMatch pleads with particularity the "who" and the "what." SmartMatch alleges that Mr. Hastings or his agent submitted his information and consent on the website https://medicare.healthinsurancelabs.com/medicare. SmartMatch also alleges that Mr. Hastings made false statements to a third-party caller on the phone immediately before that caller transferred Mr. Hastings to SmartMatch. This satisfies the "where" requirement. SmartMatch alleges that Mr. Hastings or his agent submitted his information and consent (on the website) on Dec. 3, 2019. SmartMatch also alleges that the call at issue took place on March 27, 2021. This satisfies the "when" requirement. SmartMatch alleges that Mr. Hastings or his agent entered his information and clicked the consent disclaimer on the website submission form. SmartMatch also alleges that Mr. Hastings falsely implied on the phone call that he was Marvin Taeese, wanted health insurance quote calls, and was interested in talking to a health insurance agent. This (marginally) satisfies the "how" requirement, Judge Rudofsky finds. SmartMatch alleges that Mr. Hastings himself made the misrepresentation on the call. That satisfies the "who" requirement for the alleged call-based misrepresentation. But the story is more complicated for the website submission. SmartMatch alleges that Mr. Hastings "or his agent" submitted the fraudulent information and consent on the third-party website. This allegation fails Rule 9(b)'s particularity requirement, Judge Rudofsky holds. The Eighth Circuit has routinely held that claims of fraud must specifically identify the individual, who made the fraudulent misrepresentation of fact. Alleging that an unidentified "agent" made a fraudulent misrepresentation is insufficient, Judge Rudofsky points out. Of course, SmartMatch's Counterclaim does not confine its allegation of misrepresentation solely to the unidentified agent. Instead, SmartMatch alleges that either Mr. Hastings or an unidentified agent made the misrepresentation at issue. And it is true that, in Bennett v. Berg, the Eighth Circuit explained that fraud allegations against identified and unidentified defendants "may stand as to named defendants if, as to the named defendants, the paragraphs are otherwise specific in stating the time, place and content of the misrepresentations." However, Judge Rudofsky explains, Bennett's facts are distinct, and the distinction makes a difference. In the case at bar, unlike in Bennett, the allegations leave one to guess whether the asserted misrepresentation--the entry and submission of information and consent on the website--was made (1) by Mr. Hastings, or (2) by some unidentified agent of Mr. Hastings. Judge Rudofsky points out that that ambiguity fails the particularity test. SmartMatch alleges that, via the website submission, Mr. Hastings or his agent "consented to receive prerecorded calls regarding health insurance quotes." That is a fairly conclusory allegation, Judge Rudofsky finds. And it is certainly insufficient to satisfy the particularity requirements of Rule 9(b). SmartMatch must at least allege the specific language of the consent disclaimer associated with the electronic submission of personal information. Judge Rudofsky holds that the omission is not just a problem for the website-based misrepresentation allegation. It is also a problem for the alleged call-based misrepresentation allegation because that alleged call-based misrepresentation is intertwined with the website-submission information. Eighth Circuit precedent is not crystal clear as to whether Rule 9(b)'s particularity requirement applies to the other four elements of common-law fraud. In the case at bar, the Court need not delve deeply into that quagmire. Mr. Hastings's briefing attacks the four remaining elements of fraud on normal Rule 8 grounds, not heightened Rule 9 grounds. Accordingly, the Court will evaluate SmartMatch's pleading of the remaining elements under the lower Rule 8 notice-pleading standard. SmartMatch alleges that Mr. Hastings or his agent knowingly submitted false information and consent to a third-party website, including suggesting "he was interested in health insurance quotes." SmartMatch also alleges that Mr. Hastings knowingly misrepresented his name and interest in healthcare insurance quotes on the call. Mr. Hastings does not argue against SmartMatch's allegations of knowledge. Judge Rudofsky finds that these allegations are enough to satisfy Rule 8. SmartMatch alleges that it relied on the information and consent submitted electronically by Mr. Hastings or his agent on the third-party website. SmartMatch also alleges that it relied on the information he provided on the phone call with the third-party caller--including continued interest in health insurance quotes. Specifically, SmartMatch alleges as reliance the purchase of the lead and the subsequent phone conversation with Mr. Hastings. Judge Rudofsky holds this is adequate to survive a motion to dismiss. Intent and "other conditions of a person's mind" need not be alleged with particularity, Judge Rudofsky says. Moreover, while specific intent is usually required for fraud, that's not always so. If a reasonable person would conclude that his or her misrepresentation will reach a third party and influence that party's conduct, then the individual can be held liable to that third party. With respect to the website submission, SmartMatch alleges that Mr. Hastings intended for SmartMatch to rely on the false information he or his agent submitted to induce SmartMatch to contact him regarding health insurance quotes. Judge Rudofsky finds this allegation is too conclusory on its own. Whether the intent element can be sufficiently pled in this case depends upon the language of the consent disclaimer to which Mr. Hastings or his agent agreed when submitting his information. If the language specifies that insurance coverage companies would receive the information submitted on the website, then, the intent requirement is likely satisfied, Judge Rudofsky notes. Without alleging this specific language, however, there is nothing to sufficiently show intent. Judge Rudofsky holds that SmartMatch may be able to remedy this problem with additional information as to the contents of the consent agreement (i.e., the specific contents of the disclaimer on the third-party website at the time Mr. Hastings or his agent submitted his information). For a claim of fraud to survive dismissal, it must allege facts that show that damages were incurred from the fraudulent misrepresentation. Conclusory allegations are insufficient, Judge Rudofsky points out. SmartMatch has alleged multiple different forms of damages from Mr. Hastings's alleged misrepresentations: (1) lost company revenue and profit from the purchase of the customer lead; (2) the waste of the call agent's time when speaking with Mr. Hastings; and (3) the resources required to defend against Mr. Hastings's TCPA lawsuit. With respect to the purchase of the customer lead, SmartMatch does not allege how much the lead cost. Nor does SmartMatch even allege the manner in which it pays for leads, or that an extra lead directly translates into more money spent. With respect to the SmartMatch agent's time spent on the call, SmartMatch does not allege in its Counterclaim how long the call lasted. Nor does SmartMatch explain how the agents are compensated or how they perform their work, leaving this Court to guess how the call caused any damage (let alone damage that is not de minimis). SmartMatch might be able to remedy the two foregoing deficiencies, Judge Rudofsky says. But with respect to the cost of defending against Mr. Hastings's TCPA lawsuit, SmartMatch's problems run deeper. SmartMatch does not allege that it called Mr. Hastings or caused any other entity to call him. Indeed, SmartMatch's allegations seem to suggest that Mr. Hastings was called by a third party that SmartMatch does not control. The take-home point here is that, according to SmartMatch, it did not place the call (or cause the call to be placed) that gave rise to the alleged TCPA violation. That means SmartMatch cannot claim the defense of a TCPA lawsuit as damages suffered as a result of its reliance on Mr. Hastings's alleged misrepresentations, Judge Rudofsky opines. Accordingly, Judge Rudofsky rules that the Plaintiff's Motion to Dismiss is granted in part and denied in part. Pursuant to Rule 15, the Court gives SmartMatch leave to amend its Counterclaim within twenty-one days of the date of this Order. A full-text copy of the Court's Order dated Sept. 1, 2022, is available at https://tinyurl.com/bdf4ehda from Leagle.com. ST. CLOUD STATE: Partly Wins Bid to End Injunction in Portz Suit ---------------------------------------------------------------- In the case, ALEXIE PORTZ, JILL KEDROWSKI, ABIGAIL KANTOR, MARILIA ROQUE DIVERSI, FERNANDA QUINTINO DOS SANTOS, MARIA HAUER, HALEY BOCK, KAITLYN BABICH, ANNA LINDELL, AND KIERSTEN ROHDE, individually and on behalf of all those similarly situated, Plaintiffs v. ST. CLOUD STATE UNIVERSITY and MINNESOTA STATE COLLEGES AND UNIVERSITIES, Defendants, Civil No. 16-1115 (JRT/LIB) (D. Minn.), Judge John R. Tunheim of the U.S. District Court for the District of Minnesota grants in part and denies in part the Defendants' Motion to Dissolve Injunction and End the Court's Ongoing Jurisdiction. The Plaintiffs brought the class action against Defendants St. Cloud State University ("SCSU") and Minnesota State Colleges and Universities ("MNSCU"), alleging gender discrimination in SCSU's past and present allocation of athletic opportunities and in SCSU's treatment and allocation of benefits for its female student-athletes in violation of Title IX of the Education Amendments Act of 1972. The Plaintiffs are female student-athletes who attend or recently attended SCSU and were members of SCSU's varsity intercollegiate women's tennis or women's Nordic skiing teams. They represent a class certified as "all present, prospective, and future female students at SCSU who are harmed by and want to end its sex discrimination in: (1) the allocation of athletic participation opportunities and (3) the allocation of benefits provided to varsity athletes." SCSU is a university in the MNSCU system. After a bench trial in November and December 2018, the Court entered its Order in August 2019 finding that SCSU had not complied with Title IX in its allocation of athletic participation opportunities and treatment and benefits, dating back to at least 2014. The Court entered a permanent injunction, requiring that: SCSU must take immediate steps to provide its female students with an equitable opportunity to participate in varsity intercollegiate athletics; SCSU must take immediate steps to provide its female athletes with equitable athletic-related treatment and benefits at every tier of its athletic department; and SCSU's actions must be reasonably calculated to achieve full compliance with Title IX in a reasonable period of time. SCSU was then required to file six-month reports updating the Court on its progress. SCSU appealed the Court's issuance of a permanent injunction and the Eighth Circuit issued its opinion on October 28, 2021 affirming in part, vacating in part, reversing in part, and remanding. The Circuit held that there was no clear error in the Court's factual finding that SCSU athletics uses a tier system nor did the Court err in holding that SCSU violated Title IX by failing to provide equal participation opportunities. It found that the Court did err, however, in two meaningful ways in its treatment and benefits analysis. The Circuit affirmed in part and reversed in part the Court's Order, reversing the Court's conclusion regarding treatment and benefits and remanding for further proceedings not inconsistent with its opinion. It vacated the injunction as it related to treatment and benefits and to the extent it required equity in participation opportunities among tiers. It vacated the award of attorney fees and costs as well. Upon issuance of the opinion, SCSU has filed with the Court a Motion to Dissolve the Permanent Injunction. The Plaintiffs have also filed a motion, seeking to modify the injunction in light of the Eighth Circuit's opinion. During its appeal, SCSU filed six updates on its compliance with the Court's permanent injunction. Each report includes information about SCSU's efforts to comply with the Court's permanent injunction, with particular focus on: (1) allocation of participation opportunities; (2) allocation of treatment and benefits; and (3) inequity related to tiering. The Fourth report asserts that SCSU is in compliance with the Court Order and Title IX in both its participation opportunities and the allocation of treatment and benefits. In the report, SCSU detailed how its enrollment decline led to impacts on its athletic budget. As a result of the diminished athletic budget, SCSU eliminated men's football and men's/women's golf after the 2019-20 academic year. It added a men's soccer team to begin in the 2020-21 academic year. In the Court's Order, it found that there was a participation gap of 28 opportunities in the 2017-18 academic year. The elimination of football and men's and women's golf resulted in the reduction of 105 participation opportunities for men and 7 for women. The addition of the men's soccer team added 36 opportunities for men. The Fourth Report states that for the 2020-21 school year, the male athletes had 186 actual participants and the female athletes had 210 actual participants, for a total of 396 participation opportunities. The female athletes, therefore, filled 53% of all participation opportunities and the male athletes filled 47% of those opportunities. SCSU's reports also address the improvements it has made to the allocation of treatment and benefits. SCSU has not presented to the Court any updated travel/per diem policies. Title IX provides, in relevant part, that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." It applies to athletic programs. The two main challenges to SCSU's athletic program deal with effective accommodation, also known as participation opportunities, and equal treatment and benefits. Though the parties filed two separate motions, the issues in each motion are intertwined. First, Judge Tunheim examines the participation opportunities. He opines that SCSU has demonstrated that its current athletic portfolio can produce equal participation opportunities, in compliance with Title IX, on an ongoing basis. The Plaintiffs argue that the injunction should not be dissolved because SCSU has failed to demonstrate it will continue to monitor and ensure compliance with Title IX. First, the permanent injunction does not require SCSU to set up any types of procedures for monitoring compliance. And second, Title IX remains the law, the Court presumes that SCSU, like any law-abiding entity, will comply with the law in the future. A permanent injunction should not be extended beyond the time required to remedy the legal violations. SCSU's legal violation of Title IX's participation opportunities requirement has been remedied. There is no reason to continue to extend the permanent injunction as to participation opportunities. Judge Tunheim, therefore, dissolves the permanent injunction as it relates to participation opportunities. Next, Judge Tunheim assesses whether equal treatment and benefits are conferred to male and female athletes. He opines that SCSU has shown that it now provides equipment and supplies equally to both male and female athletes. SCSU's athletic program as it stands in 2022 shows that provision of locker rooms, practice facilities, and competitive facilities is equitable. However, because SCSU has provided only minimal evidence of its travel/per diem policies as they exist in 2022, Judge Tunheim remains concerned with the accommodations provided to men's teams versus women's teams when they travel, how many travel opportunities each individual athlete has, and the amount that SCSU funds the men's travel in comparison to the women's travel. As such, Judge Tunheim reinstates the permanent injunction on treatment and benefits with the required modifications related to tiering and with specific tailoring to the travel/per diem factor. The permanent injunction will require SCSU to make reports on its progress every six months. His hope is that in its next sixth-month report, SCSU is able to address the issues discussed regarding its failure to provide updated travel/per diem policies and evidence of equity in its travel/per diem allocations. Once SCSU has provided enough evidence of its compliance, the Court can once again consider a motion to dissolve. Finally, Judge Tunheim examines the vacation of prior award of attorney fees and costs. He opines that SCSU's challenge that the Plaintiffs' request for any attorney fees and costs is untimely because they failed to comply with the filing requirements of the Eighth Circuit Local Rules is unpersuasive as there was no need for such a motion. Attorney fees and costs were already awarded, it is simply the amount that needs to be determined. And, although the Plaintiffs should have filed a motion for attorney fees and costs associated with their appeal in accordance with the Eighth Circuit's local rules, the Court is not precluded from granting an award of attorney fees and costs if such an award would be fair. Therefore, if the Plaintiffs want to pursue an award of attorney fees and costs, they should file a motion asking for fees and costs associated with the trial, their appeal and the pending motions. After full briefing by the parties, the Court can then determine what amount of attorney fees and costs, if any, would be reasonable. Based on the foregoing, and all the files, records, and proceedings therein, Judge Tunheim grants in part and denies in part the Defendants' Motion to Dissolve Injunction and End the Court's Ongoing Jurisdiction. The permanent injunction on allocation of athletic participation opportunities, Section 3 of the Court's Findings of Fact, Conclusions of Law, and Order for Judgment is dissolved. Judge Tunheim also grants in part and denies in part the Plaintiffs' Motion to Modify the Injunction to Be Consistent with the Eighth Circuit Court of Appeals Mandate as follows: a. SCSU is not in compliance with Title IX in its allocation of treatment and benefits, from at least 2014. b. A permanent injunction will be reinstated as follows: SCSU must take immediate steps to provide its female athletes with equitable athletic-related treatment and benefits on a program-wide basis. SCSU must take immediate steps to update its travel/per diem policies to create equity between SCSU's women's and men's teams, specifically by ensuring equity in how frequently the athletes travel, the level of comfort during travel, the length of travel, and the funding of that travel by SCSU. c. SCSU's actions must be reasonably calculated to achieve full compliance with Title IX in a reasonable period of time. d. The Court will maintain jurisdiction over the action to monitor the Defendants' compliance with the Court's order. The Defendants will make reports to the Court every six months to monitor compliance with the Court's order and with Title IX. The Court will consider appointment of an independent monitor if sufficient progress is not made within a reasonable period of time. Judge Tunheim denies the Plaintiffs' Motion to Strike Pleading. The Plaintiffs are instructed to file a Motion for Attorney Fees and Costs. The Court orders that judgment be entered accordingly. A full-text copy of the Court's Sept. 7, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/4nnss67p from Leagle.com. Cody Blades -- cody.blades@fmjlaw.com -- Donald Chance Mark, Jr. -- donald.mark@fmjlaw.com -- and Tyler P. Brimmer -- tyler.brimmer@fmjlaw.com -- FAFINSKI MARK & JOHNSON PA, 775 Prairie Center Drive, Suite 400, Eden Prairie, MN 55344; Sharon L. Van Dyck , VAN DYCK LAW FIRM, PLLC, 5775 Wayzata Boulevard, Suite 700, Saint Louis Park, MN 55416, for the Plaintiffs. Elizabeth C. Kramer and Kevin A. Finnerty, MINNESOTA ATTORNEY GENERAL'S OFFICE, 445 Minnesota Street, Suite 1100, Saint Paul, MN 55101, for the Defendants. STATE FARM: Stanton Appeals Insurance Suit Dismissal to 3rd Cir. ---------------------------------------------------------------- NORMAN STANTON is taking an appeal from a court ruling dismissing his lawsuit entitled Norman Stanton, Plaintiff, v. State Farm Mutual Automobile Insurance Co., Defendant, Case No. 2-21-cv-04129, in the U.S. District Court for the Eastern District of Pennsylvania. The Plaintiff, individually and on behalf of all other similarly situated persons who were injured in motor vehicle accidents and who were insureds under State Farm automobile policies, filed a class action suit against the Defendant for violation of Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL) by refusing to pay underinsured motorist (UIM) coverage on the basis of household exclusion. On December 7, 2021, the Defendant filed a motion to dismiss the Plaintiff's complaint for failure to state a claim, which District Judge Mitchell S. Goldberg granted on July 29, 2022. The Court dismissed the Plaintiff's claims with prejudice and also denied the Plaintiff's motion to stay. The appellate case is captioned as Norman Stanton v. State Farm Mutual Automobile Insurance Co., Case No. 22-2524, in the United States Court of Appeals for the Third Circuit, filed on August 26, 2022. [BN] Plaintiff-Appellant NORMAN STANTON, individually and on behalf of all others similarly situated, is represented by: Scott B. Cooper, Esq. SCHMIDT KRAMER 209 State Street Harrisburg, PA 17101 Telephone: (717) 232-6300 - and - John P. Goodrich, Esq. GOODRICH & ASSOCIATES 429 Fourth Avenue, Suite 900 Pittsburgh, PA 15219 Telephone: (412) 261-4663 - and - James C. Haggerty, Esq. HAGGERTY GOLDBERG SCHLEIFER & KUPERSMITH 1801 Market Street, Suite 100 Philadelphia, PA 19103 Telephone: (267) 350-6633 - and - Jonathan Shub, Esq. SHUB LAW 134 Kings Highway East, 2nd Floor Haddonfield, NJ 08033 Telephone: (856) 772-7200 Defendant-Appellee STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. is represented by: Joseph A. Cancila, Jr., Esq. RILEY SAFER HOLMES & CANCILA 70 West Madison Street, Suite 2900 Chicago, IL 60602 Telephone: (312) 471-8750 - and - Sondra A. Hemeryck, Esq. RILEY SAFER HOLMES & CANCILA 70 West Madison Street, Suite 2900 Chicago, IL 60602 Telephone: (312) 471-8724 - and - John J. McGrath, Esq. PALMER & BARR 1880 John F. Kennedy Boulevard, Suite 401 Philadelphia, PA 19103 Telephone: (267) 825-7883 UBER TECHNOLOGIES: Mendel's Bid to Disqualify in James Suit Denied ------------------------------------------------------------------ Judge Edward M. Chen of the U.S. District Court for the Northern District of California denies a motion to disqualify or recuse filed in the lawsuit captioned CHRISTOPHER JAMES, et al., Plaintiffs v. UBER TECHNOLOGIES INC., Defendant, Case No. 19-cv-06462-EMC (N.D. Cal.). Mr. Mendel, a former driver for Uber, moves to disqualify or recuse the Court under 28 U.S.C. Section 455(a) for "judicial prejudicial bias." The underlying class action arose out of allegations that certain Uber and Uber Eats drivers were misclassified as independent contractors under California law. The Plaintiffs brought various wage and sick leave claims under the California Labor Code (Amended Complaint). Mr. Mendel, as a former driver for Uber, was a member of the class. At no point has he sought to intervene in the case. On April 5, 2022, the Court granted preliminary approval of the parties' settlement. On May 27, 2022, despite not having sought to intervene, Mr. Mendel requested an emergency temporary restraining order and stay to "prevent the imminent murder, rape and assault of Uber drivers and passengers and an unjust settlement of valid claims against Uber." On May 31, 2022, the Court denied Mr. Mendel's motion, first noting that "there is insufficient information to find that he has standing to intervene in this action to seek the relief he requests." The Court then addressed the merits of his request for a temporary restraining order and concluded that he had not shown that the injunctive relief was warranted. On July 5, 2022, Mr. Mendel moved to dismiss the case on the basis of the Younger doctrine. The Court exercised its discretion to construe Mr. Mendel's motion to dismiss as an objection to the preliminary settlement. The Court specifically explained that intervention is governed by Federal Rule of Civil Procedure 24, and that it did not appear that he has addressed or followed Rule 24's requirements. But because Mr. Mendel was a class member, the Court noted that he was entitled to object to the preliminarily approved settlement pursuant to Rule 23(e)(5). During the subsequent fairness hearing, the Court substantively addressed Mr. Mendel's objections and explained why the Court was overruling them. Over the course of the hearing, Mr. Mendel submitted a message via the Zoom chat feature indicating his desire to present oral argument on his objections. The Court explained to Mr. Mendel that oral argument is discretionary and that it had read and considered the substance of Mr. Mendel's objections. The Court also addressed the Plaintiffs' request for an appeal bond, should Mr. Mendel seek to appeal the denial of his objections. As part of their motion for final approval, the Plaintiffs requested that the Court require Mr. Mendel to post a bond should he wish to appeal the denial of his objections. The Plaintiffs charged that Mr. Mendel has grossly misused the judicial system and engaged in a campaign of harassment. In particular, the Plaintiffs noted that Mr. Mendel had filed a "wholly frivolous" lawsuit against class counsel for malpractice and a "frivolous objection" in a similar case. The Court explained during the fairness hearing that it would ask both parties to submit briefing regarding the Plaintiffs' request for an appeal bond so that Mr. Mendel would have an opportunity to respond. Briefing is not yet complete on the appeal bond issue. On Aug. 9, 2022, the Court granted final approval to the settlement. On Aug. 23, 2022, Mr. Mendel filed the instant "motion to disqualify or recuse for judicial prejudicial bias upon pro se plaintiff occurring outside courtroom proceedings 28 U.S.C. Section 455(a)," as well as a request for judicial notice in support of his motion. He bases the motion on the alleged prejudicial conduct of Court staff and abuse of his rights to due process by the Court and its staff outside of the formal proceedings. Mr. Mendel's motion to disqualify Judge Chen is unfounded, Judge Chen holds. As an initial matter, Mr. Mendel has not moved to intervene under Rule 24, and thus the motion is procedurally improper. Despite the Court's guidance regarding Rule 24, Mr. Mendel has not moved to intervene in the case. Because he lacks standing to seek disqualification, the motion could be denied on procedural grounds alone, Judge Chen holds. As a substantive matter, Judge Chen finds the motion fares no better. In short, Mr. Mendel's motion fails to identify a factual basis, extrajudicial or otherwise, for recusal that would lead a reasonable person to question Judge Chen's impartiality. Mr. Mendel first takes issue with the fact that the Court denied his request for a temporary restraining order in May 2022. Second, Mr. Mendel finds bias in the facts that his motion to dismiss did not appear "on the docket on the PACER system," and that he was not personally served with certain pleadings in the case. But as Mr. Mendel's motion itself acknowledges, he was informed that the reason why his motion to dismiss was not posted on the Court docket was because he was not a party to the case and had not moved to intervene. Despite the Court's repeated warnings, Mr. Mendel did not take steps to intervene in the case, Judge Chen notes. As a non-party, he cannot reasonably complain that his filings do not show up on the docket. Third, Mr. Mendel finds fault in the Court's decision to not hear oral argument from him regarding his objections at the fairness hearing. But as the Court explained during the hearing, oral argument is always discretionary. In sum, Judge Chen holds that Mr. Mendel has not provided any basis that would lead a reasonable person to question the Judge's impartiality. The motion for disqualification is denied. This order disposes of Docket No. 235. A full-text copy of the Court's Order dated Sept. 1, 2022, is available at https://tinyurl.com/2pvsz72a from Leagle.com. WALGREEN CO: Appeal on Corrective Notice in Aguilar Suit Dismissed ------------------------------------------------------------------ In the case, RAQUEL AGUILAR, Plaintiff-Appellant, and GLORIA CAVES; TAMIM KABIR, Plaintiffs v. WALGREEN CO., Defendant-Appellee, Case Nos. 21-16563, 21-16627 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit issued an Opinion: a. dismissing the appeal from the district court's two orders granting Walgreens' motion to modify the scope of the corrective notice and approving that the Corrective Notice be sent to all persons represented by Wynne Law Firm and Gallo, LLP, for lack of jurisdiction; and b. denying the Appellants' request for mandamus relief. The appeal is brought in the name of purported clients of the law firms of Gallo LLP and Wynne Law Firm. These clients ("Appellants") challenge two orders from the district court proceedings, which proceedings involve class action claims by a group of Walgreens "store managers" against Appellee Walgreens. Gallo/Wynne are largely plaintiff-side labor attorneys who seek to represent workers in class actions. It originally sought to represent a putative class of Walgreens "store managers" against Appellee Walgreens in the San Francisco Superior Court in a wage and hour action filed Oct. 16, 2018 -- Morales v. Walgreen Co., No. CGC-18-570597 (San Francisco Cnty. Super. Ct.). Less than one month later, on Nov. 2, 2018, a different group of attorneys from the firms of Miller Shah LLP and the Edgar Law Firm LLC filed a substantially identical wage and hour action also on behalf of Walgreens "store managers" against Walgreens in the Eastern District of California -- Caves v. Walgreen Co., No. 2:18-cv-02910-MCE-DB (E.D. Cal.). Eventually, on May 29, 2019, the San Francisco state court granted Walgreens' motion for stay in the Morales action in favor of the Caves action, as the Caves action had progressed substantially faster than had the Morales action. The record does not indicate whether Gallo/Wynne appealed the stay order in Morales. In response to the parallel Caves action (and eventual stay of Morales), Gallo/Wynne took action to protect their own interests in pursuing litigation on behalf of Walgreens store managers. Specifically, Gallo/Wynne sought to encourage putative class members in the Caves action to abandon their claims filed by Miller/Edgar in Caves, and instead to join a separate "mass action" to be filed by Gallo/Wynne as Gallo/Wynne clients. Towards this end, between March 2019 and Aug. 4, 2020, Gallo/Wynne sent Caves putative class members four different mailings -- two "newsletters" and two "attorney marketing" letters sent broadly to Walgreens' California store managers. Each of these mailings directed interested persons to visit Gallo/Wynne's website at https://walgreens.gallo.law to see if they "may personally benefit" by hiring their "own personal lawyer" from Gallo/Wynne to represent them in the "store manager" wage and hour action. After completing the aforementioned marketing campaign, on Dec. 4, 2019, Gallo/Wynne filed the promised "mass action" as Aguilar v. Walgreen Co., No. CIV 1904443 (Marin Cnty. Super. Ct.), which was subsequently removed by defendant Walgreens on the basis of diversity of citizenship to the Northern District of California as Aguilar v. Walgreen Co., No. 3:20-cv-00124-MMC (N.D. Cal.). To be clear, the Northern District of California Aguilar action (filed by Gallo/Wynne) is separate from the present set of appeals, which come to this panel from the Caves action (filed by Miller/Edgar), which is in the Eastern District of California. The Plaintiff captioned in this appeal, Appellant Raquel Aguilar, was a putative Caves class member who opted out of the Caves action, presumably to pursue her individual claims in the Aguilar mass action filed by Gallo/Wynne. In February 2020, the Caves parties agreed to settle their dispute on a class-wide basis for $6 million, which settlement was preliminarily approved by the district court on Aug. 21, 2020. On Sept. 11, 2020, a court-approved notice regarding the Caves settlement and instructions on how to opt out was mailed to all putative Caves class members. The final day to mail an opt-out request was Oct. 26, 2020. On Oct. 19, 2020, after the class settlement had been preliminarily approved, but before the opt-out deadline, Gallo/Wynne circulated a fifth communication to certain of the putative Caves class members, urging those recipients to opt-out of the proposed Caves settlement. It is this communication that is the focus of the current appeal. The Gallo/Wynne Letter was seemingly designed to mimic the appearance of the court-approved class notice previously circulated on Sept. 11, 2020, by copying the Caves case caption, along with various other formatting similarities, potentially giving the appearance that the Letter was an impartial court-approved notice. In fact, the letter was a legal opinion of Gallo/Wynne. It was ostensibly designed for the purpose of further encouraging putative Caves class members to abandon the Caves settlement (procured by Miller/Edgar) and instead to pursue the Gallo/Wynne Aguilar mass action. Gallo/Wynne circulated the Letter to 52 putative Caves class members -- class members whom Gallo/Wynne allege had previously engaged Gallo/Wynne for representation in the Aguilar action and were thus clients of Gallo/Wynne. Separately, on Oct. 26, 2020, the final day for Caves putative class members to opt-out of the proposed settlement, Gallo/Wynne filed an objection to the proposed settlement on behalf of Objector Barbarito Ruan Vasquez. In total, 102 opt-outs were submitted in Caves on opt-out forms prepared by Gallo/Wynne. After it learned of the Gallo/Wynne Letter, on Nov. 23, 2020, the Class Counsel for Caves, Miller/Edgar, filed an ex parte application seeking corrective notice for allegedly "false and misleading statements" made in the Gallo/Wynne Letter. Miller/Edgar further asked the district court to invalidate any opt-outs obtained from the 52 recipients of the Letter, and to provide a second opt-out period for those persons who opted-out after having received the Letter. This ex parte application was granted in an order dated Jan. 19, 2021, which order also provided for a second opt-out period for those individuals whose opt-outs had been invalidated. On July 13, 2021, Appellee Walgreens filed a motion to modify the scope of the corrective notice, arguing that all opt-outs procured on forms prepared by Gallo/Wynne should be invalidated. It claimed that Gallo/Wynne had a per se conflict of interest in Caves, having simultaneously represented 39 Caves class members who did not opt-out, as well as the Caves Objector, Barbarito Ruan Vasquez, all without obtaining conflict waivers, thereby impermissibly influencing the entire opt-out process. : Moreno and Medrano, as objectors to the Martinez settlement, have an actual conflict of interest with, and adverse interest to, McDaniel, Knox and Velox, each of whom is a Martinez class member that has not objected to the settlement and has submitted a claim form for payment. Bailey Pinney's representation of Moreno and Medrano has obligated the law firm to advocate that the settlement and judgment in Martinez should not be approved. This advocacy is adverse to the interests of McDaniel, Knox and Velox, also clients of Bailey Pinney as they are Martinez class members who have approved the settlement, submitted claim forms, and await payment. The district court granted Walgreens' motion to modify the scope of the corrective notice in an order signed Sept. 7, 2021. Subsequently, the district court approved a proposed corrective notice to be sent "to all persons represented by Wynne Law Firm and Gallo, LLP, who opted out of the settlement of this matter" in an order signed Sept. 27, 2021. In particular, the district court-approved Corrective Notice stated that: (1) the Gallo/Wynne Letter "implied that Walgreens either admitted to wrongdoing or that liability was established. However, this is not true."; (2) although the Gallo/Wynne Letter stated that the Caves settlement was "not fair," "this is solely Gallo/Wynne's opinion."; (3) "the Gallo/Wynne Letter said that 'Walgreens filed papers in federal court stating how much your claims were worth and the average was more than $200,000.' But Walgreens disputes the allegations in this class action and denies any and all liability."; (4) "the GGallo/Wynne Letter states '$200,000 looks about right in many cases,' implying that class members are entitled to approximately $200,000. There is no guarantee that you will win a separate lawsuit and recover any amount."; (5) the Gallo/Wynne Letter "omitted that: Gallo/Wynne are not neutral observers. They have a financial interest in having you opt out of the Settlement."; (6) the Gallo/Wynne Letter "omitted that: Opting out allows you to pursue your claims against Walgreens; however, there is no guarantee that you will win or receive any recovery." The Appellants timely appeal the district court's order granting Walgreens' Sept. 7, 2021 motion to modify scope, which invalidated all Gallo/Wynne-procured opt-outs, as well as the district court's Sept. 27, 2021 order approving that the Corrective Notice be sent "to all persons represented by Wynne Law Firm and Gallo, LLP, who opted out of the settlement of this matter." Regarding the collateral order doctrine, the Ninth Circuit opines that the challenged orders did not place any restrictions on Gallo/Wynne's ability to communicate with the individuals subject to the district court's opt-out invalidation order or Corrective Notice. By its own terms, the Corrective Notice directs recipients to contact their "personal attorneys" if they "have any questions about" the Corrective Notice. Moreover, regardless whether any of the putative Caves class members subject to the district court's opt-out invalidation order are actually Gallo/Wynne clients, the district court's orders do not place any limitations on Gallo/Wynne's ability to contact those individuals. Thus, there is no irreparable injury at stake in the case, and the Appellants can fully remedy any injury they suffered by way of the district court's orders after a final judgment is reached. Altogether, the Ninth Circuit lacks jurisdiction under the collateral order doctrine to reach the merits of the Appellants' claims. In the alternative, the Appellants assert that if this panel lacks jurisdiction under the collateral order doctrine, then the Ninth Circuit should issue a writ of mandamus to afford the relief Appellants seek. The writ of mandamus is a drastic remedy reserved for extraordinary causes. The Ninth Circuit finds that the Gallo/Wynne argued on behalf of Objector Vasquez that the proposed settlement "is not fair, it is not adequate, and it is not reasonable," and that it should therefore be denied. But it simultaneously advised certain putative Caves class members to join the proposed settlement, which necessarily seems to require the position, contrary to that of Objector Vasquez, that the settlement is fair, is adequate, is reasonable, and that, therefore, the settlement should be approved. On these facts, the district court's finding that Gallo/Wynne was per se conflicted was not "clearly erroneous as a matter of law." Likewise, none of the challenged statements from the Corrective Notice imbue the Corrective Notice with such deficiencies as to be "clearly erroneous as a matter of law." Indeed, from the record presented to this panel, it appears the Corrective Notice contains only true statements. Therefore, the Ninth Circuit declines to grant mandamus relief to the Appellants. For the foregoing reasons, the Ninth Circuit dismisses the appeal for lack of jurisdiction, and denies the Appellants' request for mandamus relief. A full-text copy of the Court's Sept. 7, 2022 Opinion is available at https://tinyurl.com/bdvfvbt7 from Leagle.com. Ray E. Gallo (argued) -- rgallo@gallo.law -- and J. Mark Moore -- mmoore@gallo.law -- Gallo LLP, San Juan, Puerto Rico; Edward J. Wynne -- EWynne@wynnelawfirm.com -- and George R. Nemiroff -- gnemiroff@wynnelawfirm.com -- Wynne Law Firm, Larkspur, California, for the Plaintiff-Appellant. Jean-Claude Andre (argued) -- Samual A. Garner -- and Daria Dub Carlson -- daria.carlson@bclplaw.com -- Bryan Cave Leighton Paisner LLP, Santa Monica, California; Allison C. Eckstrom -- allison.eckstrom@bclplaw.com -- Bryan Cave Leighton Paisner LLP, Irvine, California; Samual A. Garner -- sam.garner@bclplaw.com -- Bryan Cave Leighton Paisner LLP, St. Louis, Missouri, for the Defendant-Appellee. YEXT INC: Robbins Geller Named Lead Counsel in Menzione Class Suit ------------------------------------------------------------------ In the case, MARC MENZIONE, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. YEXT, INC., HOWARD LERMAN, and STEVEN CAKEBREAD, Defendants, Civil Action No. 1:22-cv-05127-JPO (S.D.N.Y.), Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York grants Operating Engineers Construction Industry and Miscellaneous Pension Fund's Motion for Appointment as Lead Plaintiff and Approval of Selection of Lead Counsel. Operating Engineers Construction Industry and Miscellaneous Pension Fund is appointed as the Lead Plaintiff and Robbins Geller Rudman & Dowd LLP is appointed as the Lead Counsel for the class. The Lead counsel will have the following responsibilities and duties on behalf of the Lead Plaintiff and the putative class: (a) the briefing and argument of any and all motions; (b) the conduct of any and all discovery proceedings including depositions; (c) settlement negotiations; (d) the pretrial discovery proceedings and the preparation for trial and the trial of this matter, and delegation of work responsibilities to selected counsel as may be required; (e) the preparation and filing of all pleadings; and (f) the supervision of all other matters concerning the prosecution or resolution of the action. The Motion at Docket No. 24 is granted and the Motions at Docket No. 20 and Docket No. 17 are denied. The Clerk of Court is directed to close the motions at Docket Nos. 17, 20, and 24. A full-text copy of the Court's Sept. 6, 2022 Order is available at https://tinyurl.com/2p9fekv3 from Leagle.com. [*] Australia Proposes Changes to Class Action Funding Rules ------------------------------------------------------------ Belinda Thompson, Andrew Burns, Lachlan Prider of Allens Linklaters, disclosed that the Federal Government is unwinding the class action funding regulations introduced by the previous government in July 2020, including the requirement for funders to maintain an Australian Financial Services Licence (AFSL). The proposed changes follow the Full Federal Court's decision in LCM Funding Pty Ltd v Stanwell Corporation Ltd1, which held that class action funding arrangements are not 'managed investment schemes' (MISs) for the purposes of the Corporations Act 2001 (Cth). The Government has released an exposure draft of regulations that will: -- exempt class action funding schemes from the MIS scheme (largely redundant in light of the LCM Funding case); -- exempt funders from the requirement to hold an AFSL; and -- exempt class action funding schemes from the product disclosure regime under Part 7.9 and anti-hawking provisions under Part 7.8 of the Corporations Act. The removal of the AFSL requirement means unlicensed funders with untested financial backing and credentials may re-enter the Australian market. It also means funders will no longer be required to adhere to the general AFSL obligations, including to do all things necessary to ensure their services are provided efficiently, honestly and fairly, and to maintain certain standards. The Department of Treasury is accepting submissions on the draft regulations until 30 September 2022, following which we expect the Government will act quickly to implement them. The changes The draft regulations effectively reverse the amendments made by the previous government under the Corporations Amendment (Litigation Funding) Regulations 2020 (Cth). This means that: -- it will be beyond doubt that class action funding arrangements are not subject to the MIS regime; and -- class action funders will no longer need to hold an AFSL. However, funders will need to maintain certain bespoke conflict of interest practices, as they did prior to July 2020. The changes will apply to class action funding arrangements entered into after the regulations commence, as well as to arrangements already on foot, but only in relation to the duration of the scheme that occurs on or after that commencement. Where to from here? While the Government's reversal of these regulations comes as no surprise, its appetite for broader class action reform remains unclear. The Government has announced it is considering recommendations by the Australian Law Reform Commission (ALRC) to clarify and strengthen the powers of the Federal Court to ensure fair and reasonable returns to class action members. However, it is not clear whether the Government intends to revisit all 24 recommendations made by the ALRC, including the six recommendations specifically directed at increasing regulation of litigation funders. Those recommendations included that: -- solicitors should be prevented from seeking to recover unpaid legal fees from plaintiffs or group members in funded class actions; -- there should be a statutory presumption that funders will provide security for costs; -- the court should be empowered to award costs against funders and insurers who fail to comply with the overarching purposes of the Federal Court Act 1976 (Cth); -- the court should be given greater supervisory powers over funding agreements to ensure they are only enforceable with the court's approval and for the court to be able to reject, vary or amend their terms; -- ASIC should amend Regulatory Guide 248 to require funders to report annually to ASIC on compliance obligations and conflicts of interest; and -- the Corporations Regulations 2001 (Cth) should be amended to include 'law firm financing' and 'portfolio funding' within the definition of 'litigation funding scheme', to ensure emerging funding models are brought within the regulations. If you would like to discuss the implications of these proposed reforms, please contact Belinda Thompson. [GN] Asbestos Litigation ASBESTOS UPDATE: J&J Tries to Block Lawsuits from 40,000 Patients ----------------------------------------------------------------- NPR reports that an attorney for Johnson and Johnson faced probing questions over the corporation's use of a controversial bankruptcy maneuver that has frozen tens of thousands of lawsuits linked to Johnson's baby powder. During the hearing, members of a three-judge panel of the United States Court of Appeals for the Third Circuit in Philadelphia asked whether J&J had used the legal strategy to gain "a litigation advantage" over roughly 40,000 cancer patients who have sued the company. The cases were filed mostly by women. They claim Johnson's iconic talc baby powder was contaminated with asbestos, which caused their mesothelioma or ovarian cancers. J&J, which announced last month it would suspend all talc baby powder sales worldwide, has denied any wrongdoing. Attorney Neal Katyal, representing the company, responded by arguing that the bankruptcy maneuver — known as the "Texas two-step" — would benefit victims by producing a faster settlement, possibly worth as much as $61 billion. Katyal acknowledged criticism that a "big company that has all these profits is somehow trying to evade liability." But he said that if the tsunami of baby powder-related cases were allowed to play out in civil courts it would create legal chaos and "reduce the number of dollars available to claimants." Here's how the legal maneuver known as the "Texas two-step" worked in this case. In October of last year, J&J — which is headquartered in New Jersey — used a wrinkle in Texas state law to spin off a new subsidiary called LTL. The healthcare giant pushed all baby powder-related liabilities onto the new firm's books. Within a matter of days, LTL relocated from Texas to North Carolina and filed for bankruptcy, effectively halting the baby powder lawsuits. The U.S. Appeals for the Third Circuit will eventually rule on whether LTL's bankruptcy was filed in good faith and whether it should shield J&J from baby powder related lawsuits. During the session, attorneys representing women with claims against J&J slammed the healthcare giant's legal strategy. "Talc victims ... are mired in bankruptcy as they die," said attorney Jeffrey Lamken. He noted that during the LTL bankruptcy process, Johnson and Johnson has paid out billions of dollars to shareholders and for stock buy-backs - a practice not allowed for firms that are actually bankrupt. Meanwhile, women who filed cancer lawsuits against the corporation have been forced to wait and "can only get more desperate as they face medical expenses and come closer to their own deaths," Lamken argued. Attorneys representing cancer patients say the civil court system, not the bankruptcy court, is the proper venue for establishing the corporation's liability. The U.S. Department of Justice has also challenged J&J's bankruptcy maneuver. On Monday, a DOJ attorney argued that if this legal strategy is upheld by the courts, it would open the door to other non-bankrupt companies and wealthy individuals using similar maneuvers to avoid liability. "If Johnson and Johnson can get away with this bankruptcy, what's to stop any other company in America from doing the same thing?" asked Sean Janda, an attorney representing the U.S. Trustee, a division of DOJ that oversees bankruptcy cases. J&J's strategy has also sparked criticism from some members of Congress as well as public outrage. Speaking late last year, Hanna Wilt who was sick with mesothelioma voiced fury over the delay in her baby powder lawsuit against the company. "What I see is who can play the game best," Wilt told NPR. "Big corporations trying to work the system in a way they don't have to take full responsibility is not something new." Wilt died in February of this year at age 27. It's unclear how quickly the Third Circuit will rule, though judges tend to move quickly in bankruptcy-related cases. Legal experts have suggested that regardless of the outcome, an appeal will likely be filed to the US Supreme Court. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***