/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220926.mbx C L A S S A C T I O N R E P O R T E R Monday, September 26, 2022, Vol. 24, No. 186 Headlines 3M CO: 6th Circuit Grants Interlocutory Review of PFAS Class Action 49ERS FOOTBALL: Faces Class Action Over Ransomware Attack 7-ELEVEN INC: Faces Class Action Over Mislabeled Peanut Products AARON CHRYSLER: Trovato Suit Transferred to E.D. Michigan ADT SOLAR: McCrary Files TCPA Suit in D. Kansas ALL COUNTY TOWING: Torres Files Suit in N.Y. Supt. Ct. ALL FLORIDA SAFETY: Healey Sues to Recover Federal Overtime Wages ALLEN AND KENDRICK: Rodriguez Files ADA Suit in E.D. New York AMY SCHERBER: Class Settlement in Rahab Suit Has Prelim. Approval ANMOL FOOD MART: Singh Sues Over Unpaid Minimum, Overtime Wages APEX SECURITY: Keitz Sues Over Unpaid Minimum, Overtime Wages ARCH DRAFTING SUPPLY: Toro Files ADA Suit in S.D. New York ASHLEY FURNITURE: Grasty Sues Over Falsely Advertised Benefits AUTOZONERS LLC: Duran NYLL Suit Removed to S.D.N.Y. AZURE POWER: Glancy Prongay Reminds of Oct. 31 Lead Plaintiff Due BABY BANZ INC: Dicks Files ADA Suit in S.D. New York BAYER HEALTHCARE: Bullard Sues Over Side Effects of Seresto Collars BAYER HEALTHCARE: Coppertone Spray Claims Filing Due Set Nov. 7 BEE SWEET: Setting of Scheduling Conference in Amaro Suit Stayed BENEFITFOCUS INC: December 1 Settlement Fairness Hearing Set BENIHANA INC: Cruz Files ADA Suit in S.D. New York BLUE DIAMOND: Missouri Court Refuses to Remand Muller Class Suit BMW OF NORTH AMERICA: 3rd Cir. Nixes $3.7MM Fee Award in Gelis Suit BOCCARA ART & DESIGN: Senior Files ADA Suit in S.D. New York BOTTINO CORP: Cruz Files ADA Suit in S.D. New York BOWERY HOTEL: Cruz Files ADA Suit in S.D. New York BRASS MONKEY: Cruz Files ADA Suit in S.D. New York C3 AI: N.D. California Approves Stipulation to Stay Suri Suit CABOT HOSIERY MILLS: Ortiz Files ADA Suit in W.D. New York CALIFORNIA INSTITUTE: Reilly Files Suit in Cal. Super. Ct. CALIFORNIA: Northern District Court Dismisses Harris v. Cisneros CAPITAL ONE: $190M Data Breach Settlement Gets Final Court Okay CHARTER COMMUNICATIONS: Arbitration of Harper's PAGA Claims Denied CHEWY INC: Farst Sues Over Unlawful Interception and Wiretapping CIGNA CORP: AMA, State Physician Groups Join MultiPlan Class Action CLOROX COMPANY: Baez Class Suit Moved From E.D.N.Y. to N.D. Cal. COLLECTO INC: Court Denies Bid to Amend Answer to Davis Complaint CONAGRA BRANDS: Court Grants Bid to Dismiss Wienhoff Consumer Suit CORNERSTONE NATIONAL: Johnson Sues Over Improper Disclosure of PII COSTCO WHOLESALE: Zortea Suit Removed to W.D. Pennsylvania CREASONS FINE ART: Senior Files ADA Suit in S.D. New York CREDIT CONTROL: Klein Sues Over Unfair Collection of Debt DANE FINE ART: Senior Files ADA Suit in S.D. New York DAYTONA INTERNATIONAL: Ortiz Files ADA Suit in W.D. New York DE SOI INC: Bunting Files ADA Suit in E.D. New York DELTA GROUP ELECTRONICS: McCombs Files Suit in D. New Mexico DOTC DELIVERY: Faces Erazo Wage-and-Hour Suit in E.D.N.Y. ELECTRONIC MERCHANT: Newman Files TCPA Suit in N.D. Ohio EOG RESOURCES: Kimble Sues to Recover Unpaid Overtime Wages EQUIFAX INFORMATION: Stovall Suit Moved From Nevada to N.D. Georgia EVERYDAY HEALTH: Dicks Files ADA Suit in S.D. New York EXCEL STAFFING: Espinoza Sues to Recover Unpaid Overtime Wages FANATICS LLC: Any Arbitration Bid in Cavanaugh Suit Due Sept. 29 FIFTH LABOR: Chavez Sues Over Unpaid Overtime Wages FLAGSTAR BANK: Myers Sues Over Failure to Secure and Safeguard PII FLOSPORTS: Fiorentino Sues Over Unlawful Disclosure of PII FLYNN RESTAURANT: Degas Files Suit in Cal. Super. Ct. FRAMES FOR AMERICA: N.D. Illinois Dismisses Svoboda BIPA Suit FREY BROTHERS: Mitchell Files TCPA Suit in S.D. New York GERALD SHAPIRO: Williams Sues Over ERISA Violation GERDAU AMERISTEEL: Molla Sues Over Breach of Fiduciary Duties GERMAN SPECIALTY: Dicks Files ADA Suit in S.D. New York GIBSON COUNTY, IN: Sued Over Animal Control Ordinance Violations GOOGLE LLC: Final Nod Hearing in BIPA Suit Settlement Set Sept. 28 H.R. MEININGER: Loadholt Files ADA Suit in S.D. New York HEMSLOJD INC: Jones Files ADA Suit in S.D. New York HOLLIS DELI: Castillo Suit Alleges Unpaid Wages for Deli Cooks HONOLULU, HI: Hayslip Sues to Recover Unpaid Overtime Wages HOUSING MANAGEMENT: Justice FLSA Suit Removed to S.D. West Virginia HYUNDAI MOTOR: Morrow Sues Over Defective Vehicles iFIT INC: Sofranac Sues Over Defective Exercise Equipment IG INTERNATIONAL: Senior Files ADA Suit in S.D. New York INDEPENDENT MECHANICAL: Court Denies Bid to Dismiss Lee Labor Suit INDIANAPOLIS MOTOR SPEEDWAY: Ortiz Files ADA Suit in W.D. New York INDYMAE LLC: Simpson Sues Over Nuisance Telemarketing Practices INFLECTION RISK: Hegwood FCRA Suit Removed to W.D. Missouri IRENE MANOLIAS: Grant Sues Over Unpaid Compensations J&S UNDERGROUND: Roepke Sues Over Unpaid Overtime Compensation JANUS HENDERSON: Schissler Sues Over Breach of Fiduciary Duties KARENNA MARAJ: Hernandez Files ADA Suit in S.D. New York KIA AMERICA: Fisher Sues Over Defective Vehicles KICKIN' K RANCH: Dicks Files ADA Suit in S.D. New York LABORATORY CORP: Faces Class Action Over Unfair Retirement Plans LIBERTY MUTUAL: Fassina Files Suit in D. Massachusetts LING SKINCARE: Maddy Files ADA Suit in S.D. New York LOTTERY.COM INC: Rogers Sues Over Decline in Securities Value LUCILLE B. SMITH'S: Farias Sues Over Unpaid OT for Restaurant Staff MDL 2645: Classes in "All Natural/Non GMO" Suit v. KIND Decertified METHODIST MCKINNEY: Segovia Files Suit in D. Texas MIDLAND CREDIT: Pierre Files Writ of Certiorari with Supreme Court MONTEREY FINANCIAL: Brinkley's Bid for Class Certification Denied MYXED UP CREATIONS: Loadholt Files ADA Suit in S.D. New York NABORS COMPLETION: Judgment Entered in Negrete Unpaid Wage Suit NATIONAL AVC: Olson Wage-and-Hour Suit Removed to S.D. California NELNET SERVICING: Freeman Sues Over Failure to Protect PII NEW ZEALAND: High Court Approves Homeowners' Class Action NINTENDO OF AMERICA: California Court Dismisses Sanchez Class Suit NIO INC: Pomerantz LLP Reminds of Oct. 24 Lead Plaintiff Deadline NORTH EAST FOUNDATION: Vazquez Sues Over Unpaid Overtime Wages NORTH HIGHLAND COMPANY: Briggs Files Suit in N.D. Georgia NORTHSIDE ISD: Court Dismisses Lartigue Class Suit With Prejudice OBI SEAFOODS: Court Certifies 2 Workers Classes in Paunovic Suit ONE CONCRETE: De La Garza Sues Over Failure to Pay Overtime Wages PETSMART LLC: Topalli FTSA Suit Removed to M.D. Florida PORTLAND, OR: Faces Class Action Over Alleged ADA Violations PROLOGIS INC: Misleads Stockholders to Approve Merger, Curtis Says RADIANT SERVICES: Faces EEOC Suit Over Employment Discrimination RICOLA USA: Court Grants in Part Bid to Dismiss Davis Class Suit ROUNDPOINT MORTGAGE: Pace Suit Removed to E.D. Arkansas SAMSUNG ELECTRONICS: Martin Sues Over Misleading Advertising SAMSUNG ELECTRONICS: Seirafi Sues Over Failure To Safeguard PII SAN FRANCISCO BAR PILOTS: Reed Files Suit in Cal. Super. Ct. SM ROUNDERS: Underpays Hotel Housekeepers, Espinoza Suit Claims SONDER USA: Urena Sues Over Failure to Pay Weekly Wages SOUTH BEND CHOCOLATE: Jones Files ADA Suit in S.D. New York SOUTHERN COMPANY: Polson Sues to Recover Unpaid Overtime Wages STARKIST CO: Petitions for Writ of Certiorari in Antitrust Suit STEVE'S FLOWERS: Hernandez Files ADA Suit in S.D. New York STRYKER CORPORATION: Skinner Sues Over Defective Ankle Replacement SUNRUN INC: Gonzalez Files Suit in Cal. Super. Ct. SUPPLYING DEMAND: Martinez Files ADA Suit in E.D. New York TAPPAN COLLECTIVE: Calcano Files ADA Suit in S.D. New York TEXAS A&M: America First Legal Files Suit Over Race Discrimination THIRD WAVE WATER: Slade Files ADA Suit in S.D. New York THOMAS J. VILSACK: Proctor Files Suit in E.D. Arkansas TRACIE MARTYN: Hwang Files ADA Suit in E.D. New York TRANSFORM SR BRANDS: Hwang Files ADA Suit in E.D. New York TRITERRAS INC: $3.4MM in Attys.' Fees & Costs Awarded in Erlandson TRITERRAS INC: Court Approves Plan of Allocation in Erlandson Suit TRITERRAS INC: Court Issues Final Judgment in Erlandson Class Suit TRUSTCO BANK: New York Court Allows Breach Class Action to Proceed TURNKEY REALTY: Fails to Protect Customers' info, Checchia Alleges TURQUOISE HILL: Rio Tinto CFO to Remain Focus in Shareholders' Suit TUTTLE-CLICK TUSTIN: Monte Suit Transferred to E.D. Michigan TWITTER INC: Baker Sues Over Decline in Securities Market Value TWITTER INC: Seeks Dismissal of Class Action Over Elon Musk Buyout UBER TECHNOLOGIES: Gavric Contract Suit Removed to S.D. California ULTRA PERSONNEL: Blumenthal Nordrehaug Files Labor Class Action UNIFIRST CORPORATION: Faces Carr Suit Over Unpaid Overtime Wages UNION PACIFIC: Loses Bid to Dismiss Baker's 2nd Amended Complaint UNITED STATES: Bell Files Suit in Ct. of Federal Claims UNITED STATES: Epperson Must File 1st Amended Complaint, Court Says USHEALTH ADVISORS: Muccio Suit Removed to S.D. Florida VALENTINO USA: Joint Request for Briefing Sched OK'd in Benitez VOLKSWAGEN AG: Cornell Awarded $8.3M Settlement in Battery Suit WALGREENS BOOTS: Judge Dismisses Class Action Over Opioid Policy WALGREENS BOOTS: Smith's 3rd Amended Suit Dismissed With Prejudice WAN FU YUAN: Chien Sues Over Unpaid Overtime for Restaurant Staff WARM GLOW CANDLE: Hernandez Files ADA Suit in S.D. New York WARNER BROS: Ganaway Sues Over Unlawful Disclosure of Identities WELLS FARGO: Wins Bid to Confirm Arbitration Award in Wilson Suit WEST TOWN: Agrees to Settle Racketeering Class Suit for $10-M WESTERN UNION: Cruz Files ADA Suit in S.D. New York WILCO LIFE: Class Certification Bid Due Jan. 20, 2023 WILLIAM HENRY: Martinez Files ADA Suit in E.D. New York YALE UNIVERSITY: Michel Seeks to Certify Class Action ********* 3M CO: 6th Circuit Grants Interlocutory Review of PFAS Class Action ------------------------------------------------------------------- John Gardella, Esq., of CMBG3 Law, in an article for The National Law Review, disclosed that on September 9, 2022, the Sixth Circuit Court of Appeals granted interlocutory review of an enormously significant PFAS class action lawsuit filed in Ohio -- Hardwick v. 3M. We previously wrote about the details of the Ohio court's decision to grant class certification to the lawsuit, which would open the doors to a PFAS lawsuit proceeding with at least seven million people as plaintiffs. The challenge to the class certification will be a significant pivot point in the PFAS litigation and will determine the speed at which other similar class action lawsuits follow. The significance of the class certification ruling extends well beyond just the PFAS manufacturers and suppliers that are directly named in the lawsuit, though. Our prediction is that, if the class action lawsuit proceeds, it will open the door to similar cases being filed in other states and downstream companies eventually being added into the lawsuits. The financial impacts of this future development would be enormous to companies that did not manufacture PFAS. Companies, lenders, and investors alike must pay close attention to this case and understand the future potential risks that it poses to businesses. The PFAS Hardwick Case Filed in 2018, the Hardwick case was noteworthy at the time due to the proposed scope of plaintiffs that plaintiffs' counsel sought to include in the case - any U.S. citizen with detectable levels of PFAS in their blood, which is estimated to be over 95% of the U.S. population by various sources. The case was also significant because the lawsuit did not seek monetary damages. Instead, the relief sought from the court was the establishment of a medical monitoring program for affected citizens and the establishment of an independent science panel to study the effects of numerous PFAS on human health. To anyone who is familiar with the history of PFAS litigation, the latter remedy sought will sound familiar, as Attorney Rob Bilott famously secured the now renowned "C8 Science Panel" in his PFAS litigation in West Virginia nearly two decades ago. The results of that science panel, which studied the effects of PFOA on human health, led to the landmark findings of probable links between PFOA (also known as C8) and adverse impacts on human health. It was the C8 Science Panel findings that significantly influenced litigation activity, regulatory and legislative activity with respect to PFAS, and media attention on PFAS issues. In March 2022, the Ohio court ruled that the class of plaintiffs that will be allowed to proceed with the lawsuit is "[citizens of Ohio] who have 0.05 parts per trillion (ppt) of PFOA (C-8) and at least 0.05 ppt of any other PFAS in their blood serum." The Court limited the class to citizens of Ohio instead of citizens in the United States due to the fact that numerous states do not yet recognize medical monitoring as a legal cause of action, and some states do not permit lawsuits to proceed for an increased risk of disease without any proof of actual harm. However, the same reasoning that limited the proposed class to only citizens of Ohio may also permit for the expansion of the class - something which the Ohio court invited briefing on. In short, the court recognized that, similar to Ohio, there are other states that do allow for medical monitoring claims under state laws, and those states' citizens may be permitted to join the Ohio class action lawsuit. The defendants in the case quickly filed for an appeal to the Sixth Circuit, seeking interlocutory review by the court. Sixth Circuit Grant of Interlocutory Review In its September 9, 2022 ruling, the Sixth Circuit Court granted defendants' request for interlocutory review of the Ohio lower court's ruling. The Sixth Circuit held that: "We hold merely that when a district court certifies one of the largest class actions in history, predicated on a questionable theory of standing and a refusal to apply a cohesion requirement endorsed by seven courts of appeals, to authorize pursuit of an ill-defined remedy that sits uneasily with traditional constraints on the equity power and threatens massive liability, such a decision warrants further review." In their briefing, the defendants focused on three specific arguments as reasons for interlocutory review: (1) the case involves novel and unsettled issues, (2) the costs of litigating the case per the Ohio lower court's ruling would prohibit the parties from later challenging the class certification and (3) the lower court's ruling was erroneous for legal reasons such as lack of proof of cohesion of the class. The Circuit Court agreed with defendants' argument as reasons why the Sixth Court's review of the case and ruling was appropriate. Further, the Sixth Circuit Court felt that since the lower court invited briefing as to why the scope of the class should be expanded beyond just citizens of Ohio, the lower court's ruling deserved a "second look." In addition, the Circuit Court was especially concerned about the costs associated with the relief sought, which it estimated could be tens of millions of dollars for the establishment of a science panel and tens of billions of dollars for a medical monitoring program. Impact On Downstream Businesses The Ohio state court ruling was incredibly significant not only to the companies directly involved in the litigation, but also to downstream commerce entities. While the manufacturers involved in the current litigation are the immediate targets, it is not outside the realm of possibility to image companies who utilized PFAS, emitted them into the environment, and allegedly contributed to PFAS in the blood of citizens of Ohio (and other states that might be added to the class) being brought into the lawsuit, or pursued in future lawsuits similar to Hardwick. The Sixth Circuit's decision to review the lower court ruling and the case as a whole will continue to be closely watched by anyone involved in the PFAS litigation, most immediately to see whether the class of plaintiffs is limited in any way or potentially broadened to include other states. [GN] 49ERS FOOTBALL: Faces Class Action Over Ransomware Attack --------------------------------------------------------- Sam Whiting, writing for San Francisco Chronicle, reports that a ransomware attack during Super Bowl week on San Francisco 49ers systems that breached nearly 21,000 individual ticket-holder and vendor and employee files has resulted in a class action lawsuit filed on Sept. 9 against the organization. The suit, filed in Santa Clara County Superior Court by the Oakland firm Cole & Van Note, alleges invasion of privacy and negligence, breach of implied contract, unfair business practice and unjust enrichment by the 49ers Football Co. The suit seeks an injunction to ensure that the company secures and sequesters cyberdata more effectively than before, along with unspecified damages. The lead plaintiff, John Garvey of Moraga, is a former security guard who received a letter from the 49ers in late August acknowledging that his name, date of birth and Social Security number had been taken in a cyberattack, said Scott Cole, lead attorney in the case. "Mr. Garvey is gravely concerned that his identity has entered the hands of criminals and that he may never know the full extent of how the breach impacts him," Cole said. A 49ers team representative did not immediately respond to a request for comment.[GN] 7-ELEVEN INC: Faces Class Action Over Mislabeled Peanut Products ---------------------------------------------------------------- Erin Shaak, writing for ClassAction.org, reports that a proposed class action lawsuit alleges 7-Eleven's spicy jalapeño-flavored jumbo peanuts are misleadingly packaged in that the front label fails to disclose that the snack's taste is derived in part from artificial flavoring. The 13-page case claims that because the front label of the 7-Select-brand peanuts emphasizes the product's characterizing "spicy jalapeno" flavor though words, pictures of jalapeno peppers and green shading, consumers are led to expect that the source of the snack's taste is real jalapeno peppers. Contrary to these expectations, however, the peanuts also contain natural and artificial flavors, the lawsuit argues. Federal and state food labeling regulations specify that any food whose characterizing flavor is bolstered by an artificial flavoring agent must disclose on the front label that it is artificially flavored, the complaint relays. Although the 7-Select spicy jalapeno peanuts include "jalapeno pepper" among their ingredients, their taste is also derived from "artificial flavors" -- a fact not disclosed on the front label, the case says. According to the complaint, many consumers seek foods that do not contain artificial flavors—which are perceived as being less healthy than naturally flavored foods -- and are willing to pay more for those products. The case contends that 7-Eleven has sold more of its spicy jalapeno peanuts, and at a higher price, than it would have absent the allegedly misleading front-label representations. "The value of the Product that Plaintiff purchased was materially less than its value as represented by Defendant," the complaint states. The lawsuit looks to represent anyone in Illinois, Alabama, New Jersey, Montana, Alaska, Texas, Arizona, New Mexico, Mississippi, Utah, Nebraska, South Carolina, Tennessee and Virginia who purchased the 7-Select spicy jalapeno-flavored jumbo peanuts within the applicable statute of limitations period. [GN] AARON CHRYSLER: Trovato Suit Transferred to E.D. Michigan --------------------------------------------------------- The case styled as Christine Trovato, an inidividual, on behalf of herself and all others similarly situated v. Aaron Chrysler of Norco formerly known as: Browing Dodge, Fiat Chrysler Automobiles, FCA US, LLC, Does 1-50, inclusive, Case No. 5:22-cv-01267 was transferred from the U.S. District Court for Central District of California, to the U.S. District Court for Eastern District of Michigan on Sept. 14, 2022. The District Court Clerk assigned Case No. 2:22-cv-11892-DML to the proceeding. The nature of suit is stated as Other Contract for Breach of Contract. Aaron Chrysler of Norco -- https://www.aaroncdjr.com/ -- is a Chrysler dealer in Norco, California.[BN] The Defendants are represented by: Scott H Morgan, Esq. Stephen A. D'Aunoy, Esq. THOMPSON COBURN LLP One US Bank Plaza Saint Louis, MO 63101 Phone: (314) 552-6000 Fax: (314) 552-7000 Email: smorgan@thompsoncoburn.com sdaunoy@thompsoncoburn.com ADT SOLAR: McCrary Files TCPA Suit in D. Kansas ----------------------------------------------- A class action lawsuit has been filed against ADT Solar LLC. The case is styled as Marlo McCrary, on behalf of herself and all others similarly situated v. ADT Solar LLC, Case No. 2:22-cv-02364 (D. Kan., Sept. 15, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. ADT Solar -- https://www.goadtsolar.com/ -- is the premier, trusted solar panel installation company.[BN] The Plaintiff is represented by: Christopher E. Roberts, Esq. BUTSCH ROBERTS & ASSOCIATES LLC 231 South Bemiston Avenue, Suite 260 Clayton, MO 63105 Phone: (314) 863-5700 Email: croberts@butschroberts.com ALL COUNTY TOWING: Torres Files Suit in N.Y. Supt. Ct. ------------------------------------------------------ A class action lawsuit has been filed against All County Towing & Auto Body, Inc., et al. The case is styled as Norberto Torres, individually and on behalf of all other persons similarly situated v. All County Towing & Auto Body, Inc., et al., Case No. 152873/2022 (N.Y. Supt. Ct., New York Cty., Sept. 15, 2022). All County -- https://allcountyauto.com/ -- is a comprehensive auto repair, paint and service center that offers 24-hour damage-free towing and recovery for all types of vehicles.[BN] ALL FLORIDA SAFETY: Healey Sues to Recover Federal Overtime Wages ----------------------------------------------------------------- Jason Healey, and all others similarly situated v. ALL FLORIDA SAFETY INSTITUTE, LLC, a Florida limited liability company, Case No. 3:22-cv-00995 (M.D. Fla., Sept. 13, 2022), is brought arising under the Fair Labor Standards Act to recover all federal overtime wages that the Defendant refused to pay the Plaintiff and others during the past 3 years. The Defendant has employed hundreds of driving Instructors throughout the State of Florida to provide teaching services at various locations. The Defendant requires each of these Instructors to complete an initial training period which requires the Instructors to perform more than 40 hours of work in their initial workweek. During these training periods, the Instructors are required to attend courses and observe others, and are not primarily engaged in teaching. The Defendant failed to provide applicable federal overtime wages to the Plaintiff and all other similarly situated Instructors during the training period of their employment, says the complaint. The Plaintiff worked for the Defendant as an Instructor from March 1, 2022, until September 12, 2022. The Defendant owns and operates a driving school that provides instruction and services throughout the State of Florida.[BN] The Plaintiff is represented by: Jordan Richards, Esq. Jake Blumstein, Esq. USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC 1800 SE 10th Ave, Suite 205 Fort Lauderdale, Florida 33316 Phone: (954) 871-0050 Email: Jordan@jordanrichardspllc.com Jake@jordanrichardspllc.com ALLEN AND KENDRICK: Rodriguez Files ADA Suit in E.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Allen and Kendrick LLC. The case is styled as Angel Rodriguez, individually and as the representative of a class of similarly situated persons v. Allen and Kendrick LLC, Case No. 1:22-cv-05478 (E.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Allen and Kendrick LLC doing business as Onyx Coffee Lab -- https://onyxcoffeelab.com/ -- is an award-winning team of independent roasters and baristas shipping freshly roasted coffee worldwide.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com AMY SCHERBER: Class Settlement in Rahab Suit Has Prelim. Approval ----------------------------------------------------------------- Judge Sabrina Kraus of the Supreme Court, New York County, grants the Plaintiff's unopposed motion for preliminary approval of the joint stipulation of settlement and release in the lawsuit styled JIMMY A. RAHAB, on behalf of himself and all others similarly situated, Plaintiff v. AMY SCHERBER, INC. d/b/a AMY'S BREAD, Defendant, Index No. 161079-2020 (N.Y. Sup.). The matters came before the Court on the Named Plaintiff's Unopposed Motion for Preliminary Approval of the Joint Stipulation of Settlement and Release, Certification of the Settlement Class for Settlement Purposes, Appointment of the Named Plaintiff Jimmy A. Rahab as Class Representative for Settlement Purposes, Appointment of Bouklas Gaylord LLP as Class Counsel, Approval of the Proposed Class Notice of Settlement and Claim Form, and the Scheduling of a Fairness Hearing. Based upon the Court's review of the Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Approval of the Parties' Joint Stipulation of Settlement and Release, the Affirmation of Mark Gaylord, Esq., and the exhibits attached thereto, the proposed order and notice of claim, together with all prior pleadings and proceedings, the Court grants preliminary approval of the settlement memorialized in the Joint Stipulation of Settlement and Release (the "Settlement Agreement"), attached to the Affirmation of Mark Gaylord as Exhibit A. The Court concludes that the proposed Settlement Agreement is within the range of possible recovery, avoids the burdens and expenses of continued litigation, is fair, adequate and reasonable and not the result of fraud or collusion, such that notice to the Settlement Class is appropriate. In reaching this conclusion, the Court has reviewed the terms and conditions of the Settlement Agreement, including the monetary relief provisions, the plan of allocation, and the release of claims. The Court finds that the Settlement Agreement is the result of extensive, arm's length negotiations by counsel well-versed in the prosecution of wage and hour class actions, and that the proposed settlement has no obvious deficiencies. The Court finds that this action satisfies all of the prerequisites of New York Civil Practice Law and Rules ("CPLR") Section 901, and that consideration of the CPLR Section 902 factors support certification for purposes of settlement. The Court provisionally certifies the following class under Article 9 of the CPLR, for settlement purposes only ("Settlement Class"): Named Plaintiff and all non-exempt employees who worked for Defendant in the State of New York during the Class Period, who do not opt-out of the Action. The Court appoints Bouklas Gaylord LLP as Class Counsel because they performed substantial work identifying, investigating, litigating, and settling Plaintiff's and the Settlement Class Members' claims, have years of experience prosecuting and settling wage and hour class actions, and are well-versed in wage and hour law and in class action law. Judge Kraus says the work that Bouklas Gaylord LLP has performed both in litigating and settling this case demonstrates their commitment to the class and to representing the class' interests. The Court appoints Plaintiff Jimmy A. Rahab as the class representative for settlement purposes. The Court approves the proposed Notice of Proposed Settlement of Class Action Lawsuit, and Fairness Hearing (collectively the "Class Notice"), attached as Exhibit B to the Affirmation of Mark Gaylord, and directs its distribution to the Class. The Court approves the Claim Form and Individual Release ("Claim Form") attached as Exhibit C to the Affirmation of Mark Gaylord and directs its distribution to the Settlement Class. Judge Kraus finds the contents of the Class Notice and Claim Form fully comply with due process. The Class Notice describes the terms of the settlement, including the nature and background of the action, informs the Settlement Class about the allocation of attorneys' fees and costs, explains how Settlement Class Members can object or opt-out, and provides specific information regarding the date, time, and place of the final approval hearing. The Claim Form provides instructions on how to complete and submit a claim as well as a detailed description of the claims being released. The Court adopts the following settlement procedure. Within 10 days after the Court enters its Order Granting Preliminary Approval, the Defendant will provide a list of Settlement Class Members, in electronic form, to the Settlement Administrator, including the last known addresses, and email addresses for each Settlement Class Member and indicating the amount of weeks worked by each Settlement Class Member. Within 30 days after the Court issues its Order Granting Preliminary Approval, the Settlement Administrator will mail, via First Class United States mail, postage prepaid, the court-approved Class Notice and Claim Form to all Settlement Class Members. Settlement Class Members will have 90 calendar days after the date the Class Notice and Claim Form is mailed to submit a Claim Form and current IRS Form W-4, or to request exclusion from the Settlement Class. Settlement Class Members will have 90 calendar days after the date the Class Notice is mailed to object to the Settlement. If a Settlement Class Member objects to the Settlement he or she must write this Court with the basis for the objection. Such Settlement Class Member may also voice such concerns in person at the Court's final fairness hearing after timely submission of the objection. An employee who opts-out of the Settlement Class may not object to the Settlement. The Court finds the proposed plan for distributing the Notice will provide the best notice practicable, satisfies the notice requirements of CPLR 904 and satisfies all other legal and due process requirements. Class Counsel will file a Motion for Final Approval on or before fourteen (14) days prior to the final Fairness Hearing to address: (a) whether the proposed Settlement Agreement should be finally approved as fair, reasonable, and adequate; (b) Class Counsel's application for attorneys' fees and reimbursement of litigation expenses; and (c) the application for the Service Award Plaintiffs. The Court will hold a final Fairness Hearing on Feb. 15, 2023, at 11:00 a.m., at the Supreme Court of the State of New York, County of New York, located at 111 Centre Street, in New York City, New York 10013, in courtroom 574, or by remote means. The Court finds there is no just cause for delay and directs the Clerk to enter this Order. A full-text copy of the Court's Order dated Sept. 8, 2022, is available at https://tinyurl.com/3x7fycas from Leagle.com. ANMOL FOOD MART: Singh Sues Over Unpaid Minimum, Overtime Wages --------------------------------------------------------------- Palwinder Singh, on his own behalf and on behalf of others similarly situated v. ANMOL FOOD MART INC d/b/a Anmol Food Mart Inc d/b/a Sunoco; DIAMOND FOOD MART INC d/b/a Diamond Food Mart Inc d/b/a Conoco; and VISHAL KUMAR, Case No. 1:22-cv-05475-PKC-RER (E.D.N.Y., Sept. 13, 2022), is brought to recover from the Defendants: unpaid wages and unpaid minimum wages, unpaid overtime wages, unpaid spread of time wages, liquidated damages, statutory damages for failure to provide wage statements with each payment of wages, statutory damages for failure to provide time of hire notice, prejudgment and post judgement interest, liquidated damages; and/or attorneys' fees and costs, against the Defendants for violation of the Fair Labor Standards Act, the Wage Theft Prevention Act and Minimum Wage Act incorporated in the New York Labor Law, and the Minimum Wage Order for Miscellaneous Industries and Occupations, arising from the Defendants' various willful, malicious, and unlawful employment policies, patterns, and/or practices. During his employment from July 26, 2021 to August 29, 2021, the Plaintiff was paid a compensation of $14 per hour for all hours worked up to 40 and then $12 per hour for all hours worked above 40. The Plaintiff would be paid for all the time up to 40 hours in check and the remaining hours after 40 would be paid in cash. The Plaintiff was never given the remaining amount that he was owed between July 26, 2021 and August 8, 2021 and is therefore owed six hundred and seventy-two dollars ($762.00) in back wages. Additionally, the Plaintiff was not compensated for the hours he worked during his last week of employment from August 23, 2021 to August 29, 2021. Throughout the period of the Plaintiff employment his base salary amounted to less than the New York wage., says the complaint. The Plaintiff was employed by the Defendants from July 26, 2021 to August 29, 2021 to work as a Gas Station attendant at one of Defendants gas stations "Conoco." ANMOL FOOD MART INC d/b/a Anmol Food Mart Inc d/b/a Sunoco is a domestic business corporation organized under the laws of the State of New York.[BN] The Plaintiff is represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 103 Flushing, NY 11355 Phone: (718) 762-1324 Email: johntroy@troypllc.com APEX SECURITY: Keitz Sues Over Unpaid Minimum, Overtime Wages ------------------------------------------------------------- Brian Keitz, an individual on behalf of himself and all others similarly situated v. APEX SECURITY GROUP, INC., a corporation, and Does 1 through 10, inclusive, Case No. 22CV403171 (Cal. Super. Ct., Santa Clara, Sept. 15, 2022), is brought against the Defendants for the Defendants failure to pay the Plaintiff all wages due to them within any time period specified by the Labor Code, including earned and unpaid minimum, overtime, and premium wages. The Plaintiff suffered underpayments as a result of numerous issues, including but not limited to: the Defendants failing to correctly pay the Plaintiff for all hours they worked; deducting time for meal periods even when the meal was not taken, the meal was less than 30 minutes, or the meal was on duty; defining "workday" in a manner that a single work shift is split across two separate workdays; failure to pay shift differentials; use of unauthorized alternative work week schedules without proper payment of overtime; failure to calculate the regular rate of pay; and modifying timesheets when employees worked overtime, says the complaint. The Plaintiff work for the Defendant as a non-exempt employee in the position of a security guard. The Defendant is a corporation organized and existing under the laws of Delaware, with its principal place of business located in Northridge, California.[BN] The Plaintiff is represented by: George S. Azadian, Esq. Ani Azadian, Esq. AZADIAN LAW GROUP, PC 707 Foothill Blvd., Suite 200 La Canada Flintridge, CA 91011 Phone: (626) 449-4944 Fax: (626) 628-1722 Email: George@azadianlawgroup.com ARCH DRAFTING SUPPLY: Toro Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Arch Drafting Supply, Inc. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Arch Drafting Supply, Inc., Case No. 1:22-cv-07819 (S.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Arch Drafting Supply -- https://shop.archsupplies.com/ -- is a locally owned, art & drafting supply store specializing in materials for architects & designers.[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 ASHLEY FURNITURE: Grasty Sues Over Falsely Advertised Benefits -------------------------------------------------------------- Katie Grasty, individually and on behalf of all others similarly situated v. Ashley Furniture Industries, LLC, Case No. 4:22-cv-00334-MW-MAF (M.D. Fla., Sept. 13, 2022), is brought against the Defendant who misrepresented and falsely advertised the benefits, advantages, conditions, or terms of the extended furniture protection plans described as "service contracts" in connection with its sale of furniture by describing it as a "Premium Protection Plan," stating that, "Life Happens and So Do Accidents" on its website. During the sales process, Defendant's representatives encouraged Plaintiff to purchase the Service by informing her it would cover any sort of damage, including damage caused by a dog ripping it, and was a prudent investment for her costly purchase. Since Plaintiff's family includes a spouse, three kids, and three dogs, she was persuaded by the representative to purchase the Service given that it could provide protection and gave her peace of mind on her expensive purchase. Plaintiff was not able to review the terms of the Service before her purchase. After Plaintiff purchased the Service, she received a "No Use/No Lose Certificate" which told her that "If you don't use it, you won't lose it!" The Certificate confirmed she made a responsible decision to purchase the Service, stating, "Congratulations on making the smart decision to protect your new furniture! We want you to be able to enjoy the beauty of your new purchase for years to come without worrying about the types or accidental stains and damages that are covered by your Guardian protection plan." The Plaintiff received the full-service agreement electronically only after she purchased the Service. The electronic transmission of the service agreement did not notify Plaintiff of her right to receive the contract via United States mail rather than electronic transmission, in violation of Fla. Stat. The service agreement stated that "The Plan covers materials and labor costs to service your furniture item(s) in the event a furniture item becomes accidentally damaged during normal residential use due to stains or other covered damage or defects as more specifically described in the Service Specific Coverage section of this Plan." After approximately two years of normal use, the base of the sofa collapsed in one spot, shortly followed by a collapse in a different location. In October 2021, Plaintiff submitted a claim for coverage to Defendant's third-party provider, Guardian, who operates under Defendant's instructions. Several weeks later, Plaintiff was denied coverage. The Defendant engaged in unfair claim settlement practices by making material misrepresentations to Plaintiff for the purpose of denying her claims, which were less favorable terms than those provided for by the agreement. Specifically, Defendant cited "excessive damage, misuse, neglect, mishandling, and abuse" when it knew this was false, because Plaintiff indicated the breakage was caused by "normal use" during "normal sitting" on the sofa. Defendant had no basis to classify the breakage as being caused by any activity identified in this provision. The Defendant denies claims based on "excessive damage, misuse, neglect, mishandling, and abuse" with such frequency as to indicate its general business practice is to fail to adequately investigate claims. The Defendant failed to meet its burden that Plaintiff's claims were not covered by the Service, because the terms in the agreement are not defined or otherwise allow it to deny coverage to all or substantially all claims. The Service contains other defects, representations and/or omissions which render it unlawful and deceptive. As a result of the false and misleading representations, the Service is sold at a premium price, approximately no less than $229, excluding tax and sales, higher than similar services represented in a non-misleading way, and higher than it would be sold for absent the misleading representations and omissions, says the complaint. The Plaintiff bought the Savesto Charcoal Sofa with a service contract from the Defendant's store. Ashley Furniture Industries, LLC markets, administers and sells extended furniture protection plans described as "service contracts" in connection with its sale of furniture.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Phone: (516) 268-7080 Email: spencer@spencersheehan.com AUTOZONERS LLC: Duran NYLL Suit Removed to S.D.N.Y. --------------------------------------------------- The case styled JOFENY DURAN, individually and on behalf of all others similarly situated v. AUTOZONERS, LLC, AUTOZONE STORES, INC., and AUTOZONE, INC., Case No. 811794/2022E, was removed from the Supreme Court of the State of New York, County of Bronx, to the U.S. District Court for the Southern District of New York on September 13, 2022. The Clerk of Court for the Southern District of New York assigned Case No. 1:22-cv-07817 to the proceeding. The case arises from the Defendants' alleged failure to reimburse business expenses and failure to pay employees in weekly basis in violation of the New York Labor Law. AutoZoners, LLC is a retailer of automotive parts and accessories, headquartered in Memphis, Tennessee. AutoZone Stores, Inc. is a retailer of automotive parts and accessories, headquartered in Memphis, Tennessee. AutoZone, Inc. is an American retailer of aftermarket automotive parts and accessories, headquartered in Memphis, Tennessee. [BN] The Defendants are represented by: Michael D. Billok, Esq. BOND SCHOENECK & KING PLLC 268 Broadway, Suite 104 Saratoga Springs, NY 12866 Telephone: (518) 533-3236 Facsimile: (518) 533-3299 E-mail: billokm@bsk.com - and - Jessica C. Moller, Esq. BOND SCHOENECK & KING PLLC 1010 Franklin Avenue, Suite 200 Garden City, NY 11530 Telephone: (516) 267-6332 Facsimile: (516) 267-6301 E-mail: jmoller@bsk.com AZURE POWER: Glancy Prongay Reminds of Oct. 31 Lead Plaintiff Due ----------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming October 31, 2022 deadline to file a lead plaintiff motion in the class action filed on behalf of investors who purchased or otherwise acquired Azure Power Global Limited ("Azure" or the "Company") (NYSE: AZRE) securities between June 15, 2021 and August 26, 2022, inclusive (the "Class Period"). If you suffered a loss on your Azure investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at https://www.glancylaw.com/cases/azure-power-global-limited/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. On August 29, 2022, Azure announced the resignation of its CEO, less than two months after his appointment. The Company also disclosed that it had "received a whistleblower complaint in May 2022 alleging potential procedural irregularities and misconduct by certain employees at a plant belonging to one of its subsidiaries." During the Company's review of these allegations, Azure "discovered deviations from safety and quality norms" and "also identified evidence of manipulation of project data and information by certain employees." On this news, the Company's stock fell $4.61, or 44%, to close at $5.85 per share on August 29, 2022, on unusually heavy trading volume. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that there were procedural irregularities, including deviations from safety and quality standards, at one of Azure's plants; (2) that certain project data was manipulated; (3) that, as a result of the foregoing, the Company's internal controls and procedures were not effective; (4) that Azure had received a credible whistleblower report alleging such misconduct; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased or otherwise acquired Azure securities during the Class Period, you may move the Court no later than October 31, 2022 to request appointment as lead plaintiff in this putative class action lawsuit. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to the pending class action lawsuit, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts: Glancy Prongay & Murray LLP, Los Angeles Charles Linehan, 310-201-9150 or 888-773-9224 shareholders@glancylaw.com www.glancylaw.com [GN] BABY BANZ INC: Dicks Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Baby Banz, Inc. The case is styled as Victoria Dicks, on behalf of herself and all others similarly situated v. Baby Banz, Inc., Case No. 1:22-cv-07827-VSB (S.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Baby Banz -- https://banzworld.com/ -- has been helping parents protect precious little eyes, skin and ears for over 15 years with their innovative carewear.[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 BAYER HEALTHCARE: Bullard Sues Over Side Effects of Seresto Collars ------------------------------------------------------------------- REGINA BULLARD, on behalf of herself and all others similarly situated, Plaintiff v. BAYER HEALTHCARE LLC, BAYER CORPORATION, and ELANCO ANIMAL HEALTH, INC., Defendants, Case No. 1:22-cv-22904 (S.D. Fla., September 13, 2022) is a class action against the Defendants for breach of express warranty, breach of implied warranty, strict liability, negligence, and violations of the Indiana Deceptive Consumer Sales Act, the Kansas Consumer Protection Act, the Florida Deceptive and Unfair Trade Practices Act, and the Magnuson-Moss Warranty Act. According to the complaint, the Defendants are engaged in false, deceptive, and misleading advertising, labeling, and marketing of Seresto flea and tick collars. Despite the emergence of reports about Seresto's serious side effects, the Defendants continued to advertise and market the product as safe for pets to use when it is not. Had the Defendants disclosed the existence of the serious safety risks associated with Seresto collars, the Plaintiff and Class members would not have used the product and their pets would not have suffered the injuries that they developed as a result of using Seresto collar, says the suit. Bayer Healthcare LLC is a manufacturer of healthcare and medical products, headquartered in Whippany, New Jersey. Bayer Corporation is the parent of Bayer Healthcare LLC, with its main offices located in Whippany, New Jersey. Elanco Animal Health, Inc. is an animal health company, headquartered in Greenfield, Indiana. [BN] The Plaintiff is represented by: Rachel Soffin, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 3833 Central Ave. St. Petersburg, FL 33713 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: rsoffin@milberg.com - and - Michael Reese, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 E-mail: mreese@reesellp.com - and - Michael Williams, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 945-7110 Facsimile: (816) 945-7118 E-mail: mwilliams@williamsdirks.com BAYER HEALTHCARE: Coppertone Spray Claims Filing Due Set Nov. 7 --------------------------------------------------------------- Alexandra Hurtado, writing for Parade, reports that calling Coppertone sunscreen users! If you purchased certain Coppertone spray sunscreen products in the U.S. prior to Aug. 2, 2022, then you might be eligible to receive money from the class action lawsuit against Bayer HealthCare LLC and Beiersdorf, Inc. According to the 2022 Coppertone settlement website, the lawsuit alleges that certain products "were inappropriately marketed because it was not disclosed that certain Coppertone spray sunscreen products contained benzene." The lawsuit also "alleges various harms including but not limited to misrepresentation and improper labeling and was brought on behalf of all consumers who bought the Covered Products." Back in 2021, Coppertone, which is owned by Beiersdorf, issued (via the U.S. Food and Drug Administration) a voluntary recall of twelve lots of spray products due to the presence of benzene. The International Agency for Research on Cancer, per the American Cancer Society, classifies benzene as "carcinogenic to humans" and notes that "benzene exposure has been linked with acute lymphocytic leukemia (ALL), chronic lymphocytic leukemia (CLL), multiple myeloma, and non-Hodgkin lymphoma." While the defendants (Bayer HealthCare LLC and Beiersdorf, Inc.) have denied all claims and allegations, they are settling the litigation and have agreed to pay $2.3 million to the settlement fund. What Coppertone spray sunscreen products does the case involve? The following Coppertone spray sunscreen products are involved in this case: Pure & Simple SPF 50 Pure & Simple Kids SPF 50 Pure & Simple Baby SPF 50 Sport Mineral SPF 50 Sport SPF 50 Sport SPF 30 Sport SPF 15 Complete SPF 50 Complete SPF 30 Glow Shimmer SPF 50 Glow Shimmer SPF 30 Kids SPF 50 Do you need proof of purchase to file a settlement claim? Proof of purchase isn't necessary, but class members with proof of purchase -- meaning "an itemized retail sales receipt or retail store club or loyalty card record showing, at a minimum, the purchase of a Covered Product, the purchase price, and the date and place of the purchase" -- can receive a portion of the settlement fund for the products they purchased. According to the settlement, if an individual does not have proof of purchase, then the purchase price of the "Covered Products will be determined by the average retail price for up to six (6) Covered Products claimed per household plus a 10% allowance for sales tax." Is the settlement approved? The approval hearing is scheduled to take place in Brooklyn, NY on Jan. 5, 2023. Does the settlement mean the defendants are guilty? Although the defendants are settling, it is "not an admission of any wrongdoing." The defendants are said to be settling in order to "avoid the expense, inconvenience, risk and disruption of the litigation." How to submit a claim? Individuals can submit a claim online here, or print and mail it to: Sunscreen Settlement Claim Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103. When do you need to submit a claim by? Class members have until Nov. 7, 2022 to submit a valid claim. Claims being mailed must be postmarked by November 7, 2022. [GN] BEE SWEET: Setting of Scheduling Conference in Amaro Suit Stayed ---------------------------------------------------------------- Magistrate Judge Erica P. Grosjean of the U.S. District Court for the Eastern District of California grants in part the Defendant's ex parte application to stay the setting of the mandatory scheduling conference in the lawsuit captioned RAFAEL MARQUEZ AMARO, et al., on behalf of themselves and others similarly situated, Plaintiffs v. BEE SWEET CITRUS, INC., Defendant, Case No. 1:21-cv-00382-JLT-EPG (E.D. Cal.). On Aug. 29, 2022, the Defendant filed an ex parte application requesting the Court to stay the setting of the mandatory scheduling conference until after a ruling is issued in any filed motion to dismiss. On Aug. 30, 2022, the Plaintiffs filed an opposition, which requested that the Court set the scheduling conference for Oct. 5, 2022. Having considered the matter, the Court will grant in part the Defendant's request to stay the setting of the mandatory scheduling conference to the extent that the Court will not set a scheduling conference at this time. However, it will set a joint status conference on Nov. 10, 2022, at 10:00 a.m. The parties are directed to each file a separate status report, of up to three pages, outlining the status of the case and what, if any, discovery the parties believe may begin at that time. The parties will each file their reports one full week prior to the conference, and email a copy, in Word Format, to epgorders@caed.uscourts.gov. Further, the Court may find it appropriate at any time to set a scheduling conference before a ruling is issued regarding the Defendant's pending dispositive motion. The Plaintiffs initiated the class action against the Defendant on March 11, 2021. On March 11, 2021, Magistrate Judge Helena M. Barch-Kuchta set an initial scheduling conference for Sept. 22, 2021. On April 2, 2021, the Defendant filed a motion to dismiss on the grounds that this case was duplicative of a previously filed related case, Montes v. Bee Sweet Citrus, Inc., 1:20-cv-01162-JLT-EPG. On Sept. 8, 2021, the Defendant filed an ex parte application to vacate the mandatory scheduling conference until a ruling was issued on the then-pending motion to dismiss. The Defendant then filed a motion to consolidate this action with the Montes case. On Sept. 13, 2021, Judge Barch-Kuchta issued a minute order vacating the scheduling conference. Subsequently, this case was reassigned to Magistrate Judge Erica P. Grosjean. On Aug. 18, 2022, an order was entered denying the Defendant's motion to dismiss and denying its motion to consolidate. As explained in District Judge Jennifer L. Thurston's order, the Defendant's motion to dismiss was denied because regardless of whether the parties are substantially similar such that the first-to-file rule should apply, the Court finds the considerations of equity do not warrant dismissing or staying this case. Further, because the Court concurrently dismissed the named plaintiffs in the Montes case with prejudice, the Defendant's motion to consolidate was denied as moot. Relevantly, as a defendant in Montes, the Defendant had raised several arguments in favor of dismissal (Montes v. Bee Sweet Citrus, Inc., 1:20-cv-01162-JLT-EPG, 2022 WL 3448730, at *1-2 (E.D. Cal. Aug. 17, 2022)). However, in granting the dismissal in Montes, the Court relied only on the named plaintiff's failure to comply with the notice requirement of California Labor Code Section 2810.3(d). On Aug. 22, 2022, in light of the ruling on the motion to dismiss and motion to consolidate, the Court directed the parties to contact the Court to reset the scheduling conference. After an exchange of emails, the Defendant filed the instant ex parte application requesting to stay the setting of the mandatory scheduling conference. The Defendant primarily argues that because its first motion to dismiss in this case was solely based on the "first-to-file" rule (i.e., the Defendant's argument that this case was duplicative of the Montes case and should be dismissed on those grounds), the Defendant has not yet raised substantive arguments for dismissal of this case. According to the ex parte application, the Defendant intended to file a second motion to dismiss, which would raise several arguments supporting dismissal of the entire case, including the Plaintiffs' failure to comply with the notice requirements of Cal. Labor Code Section 2810.3(d), failure to join indispensable parties, and failure to state claim. On Sept. 2, 2022, the Defendant did indeed file a motion seeking judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), or in the alternative, total or partial summary judgment pursuant to Rule 56(c). Finally, the Defendant argues that because Judge Grosjean and other judges within the Eastern District have routinely vacated scheduling conferences due to pending dispositive motions in this case and related cases, the same situation has arisen, which will moot the need for a mandatory scheduling conference or at least substantially change the nature of the litigation. On Aug. 30, 2022, the Plaintiffs filed an opposition to the Defendant's ex parte application. They argue that the Defendant has failed to show good cause for the Court to delay issuing a scheduling order as required by Federal Rule of Civil Procedure 16. Further, while they counsel has requested a Rule 26(f) conference several times, the Defendant has failed to provide availability, apparently waiting for the scheduling conference to be set even though Rule 26(f) requires the conference to take place as soon as practicable. Discovery should proceed as memories will continue to fade, witnesses may become unreachable, or documents could be lost if the Plaintiffs continue waiting for dispositive motions before starting discovery. The Plaintiffs also argue that the Defendant has no procedural mechanism to bring a second motion to dismiss after already having lost the first one. Additionally, while the Defendant intends to rely on the same notice requirement argument as in the Montes case, the Court has already found that argument inapplicable. The Plaintiffs contend that the Defendant's other arguments lack colorable merit and will not lead to a dismissal with prejudice even if they are successful. Because a pending dispositive motion does not generally warrant a stay in discovery unless such a motion will clearly prevail, the Defendant's request to stay the scheduling conference should be denied, Judge Grosjean opines. Finally, the Plaintiffs request the Court to set the scheduling conference for Oct. 5, 2022. Upon review, the Court notes that the Defendant's pending motion is sufficiently meritorious for a finding that the motion is potentially dispositive of the case. The motion does seek to dismiss the entire case with prejudice based on the Plaintiffs' failure to state a claim. Regarding the second prong--whether the pending, potentially dispositive motion can be decided absent additional discovery--the Plaintiffs have not identified in their opposition any specific discovery necessary to resolve the motion, Judge Grosjean notes. Further, because motions for judgment on the pleadings rely on the same legal standard as a motion to dismiss under Rule 12(b)(6), it is unlikely that discovery will be needed for a decision on a matter of law. That said, Judge Grosjean states that this is the Defendant's second attempt at dismissing the same complaint. The Court held off scheduling the case during the pendency of the first motion to dismiss. However, the Defendant made a choice to bring challenges to the Plaintiff's complaint in a piecemeal fashion. The Defendant is not entitled to a stay in order to litigate its challenges indefinitely, Judge Grosjean points out. The Court has also balanced the interests of the Plaintiffs in proceeding with the case against the interests in the Defendant of not being unduly burdened by unnecessary discovery. This case has been pending since March 11, 2021, and the Plaintiff is entitled to proceed on discovery following the motion to dismiss. That said, the case is in a relatively early stage and may benefit by a narrowing of issues for discovery and the remainder of the case. The Court is also not in a position to set a full schedule until the Defendant's pending motion has been resolved. For those reasons, the Court will not set a scheduling conference at this time or set a schedule for the remainder of the case. However, the parties should consider what discovery may proceed while the motion is pending and be prepared to discuss that issue with the Court at the status conference set here. For these reasons, Judge Grosjean ordered as follows: 1. The Defendant's ex parte application for a stay in setting the mandatory scheduling conference is granted in part to the extent that the Court will not set a scheduling conference at this time; 2. The Court will set a joint status conference on Nov. 10, 2022, at 10:00 a.m.; 3. The parties are directed to each file a separate status report, of up to three (3) pages, outlining the status of the case and what, if any, discovery the parties believe may begin at that time. The parties will each file their reports one full week prior to the conference, and email a copy, in Word Format, to epgorders@caed.uscourts.gov; and 4. Further, the Court may find it appropriate at any time to set a scheduling conference before a ruling is issued regarding the Defendant's pending dispositive motion. A full-text copy of the Court's Order dated Sept. 8, 2022, is available at https://tinyurl.com/557dwxdd from Leagle.com. BENEFITFOCUS INC: December 1 Settlement Fairness Hearing Set ------------------------------------------------------------ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CITY OF PITTSBURGH COMPREHENSIVE MUNICIPAL PENSION TRUST FUND, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. BENEFITFOCUS, INC., et al., Defendants. Index No. 651425/2021 IAS Commercial Part 53 Hon. Andrew Borrok SUMMARY NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT, AND MOTION FOR ATTORNEYS' FEES AND EXPENSES To: All persons and entities that purchased or otherwise acquired publicly traded common stock pursuant and/or traceable to the Offering Documents issued in connection with Benefitfocus, Inc.'s ("Benefitfocus" or the "Company") March 1, 2019 secondary public offering and/or who subsequently purchased or otherwise acquired Benefitfocus publicly traded common stock from March 1, 2019 through November 5, 2020, inclusive (the "Class Period"), and who were damaged thereby. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the Supreme Court of the State of New York, New York County, that Lead Plaintiff City of Pittsburgh Comprehensive Municipal Pension Trust Fund, on behalf of itself and the proposed Settlement Class,1 and Benefitfocus and the other Defendants in the Action, have reached a proposed settlement of the above-captioned securities class action (the "Action") in the amount of $11,000,000 that, if approved, will resolve the Action in its entirety (the "Settlement"). A hearing will be held before the Honorable Andrew Borrok, on December 1, 2022, at 11:30 a.m. EST, before the Court, either in person at the Supreme Court, New York County, Courtroom 238, 60 Centre Street, New York, NY 10007, or remotely using directions that will be posted in advance on the Settlement website, in the Court's discretion (the "Settlement Hearing") to, among other things, determine whether the Court should: (i) approve the proposed Settlement as fair, reasonable, and adequate; (ii) dismiss the Action with prejudice as provided in the Stipulation and Agreement of Settlement, dated April 11, 2022; (iii) approve the proposed Plan of Allocation for distribution of the Net Settlement Fund; and (iv) approve Lead Counsel's Fee and Expense Application. The Court may change the date of the Settlement Hearing without providing another notice. You do NOT need to attend the Settlement Hearing to receive a distribution from the Net Settlement Fund. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE AFFECTED BY THE PROPOSED SETTLEMENT AND YOU MAY BE ENTITLED TO A MONETARY PAYMENT. If you have not yet received a Notice and Proof of Claim and Release form ("Claim Form"), you may obtain copies of these documents by visiting the website dedicated to the Settlement, www.BenefitfocusSecuritiesSettlement.com, or by contacting the Claims Administrator at: Benefitfocus Securities Settlement c/o A.B. Data, Ltd. P.O. Box 173114 Milwaukee, WI 53217 Inquiries, other than requests for the Notice/Claim Form or for information about the status of a claim, may also be made to Lead Counsel: Alfred L. Fatale III, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 www.labaton.com settlementquestions@labaton.com (888) 219-6877 If you are a Settlement Class Member, to be eligible to share in the distribution of the Net Settlement Fund, you must submit a Claim Form postmarked or submitted online no later than December 27, 2022. If you are a Settlement Class Member and you do not timely submit a valid Claim Form, you will not be eligible to share in the distribution of the Net Settlement Fund, but you will nevertheless be bound by the Settlement and all judgments or orders entered by the Court in the Action, whether favorable or unfavorable. If you are a Settlement Class Member and wish to exclude yourself from the Settlement Class, you must submit a written request for exclusion in accordance with the instructions set forth in the Notice such that it is received no later than November 10, 2022. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action, whether favorable or unfavorable, and you will not be eligible to share in the distribution of the Net Settlement Fund. If you are a Settlement Class Member and do not timely and validly exclude yourself from the Settlement Class, you will remain in the Settlement Class and that means that, upon the Effective Date of the Settlement, you will release all Plaintiff's Released Claims against the Defendant Releasees. Any objections to the proposed Settlement, the proposed Plan of Allocation, and/or Lead Counsel's Fee and Expense Application must be mailed to the Court and counsel for the Parties in accordance with the instructions in the Notice, such that they are received no later than November 10, 2022. PLEASE DO NOT CONTACT THE COURT, DEFENDANTS, OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE. DATED: SEPTEMBER 12, 2022 BY ORDER OF THE SUPREME COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY 1 All terms not defined herein shall have the definition assigned to them in the Stipulation and Agreement of Settlement, dated April 11, 2022. [GN] BENIHANA INC: Cruz Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Benihana, Inc. The case is styled as Miriam Cruz, on behalf of herself and all others similarly situated v. Benihana, Inc., Case No. 1:22-cv-05451 (S.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Benihana Inc. -- https://www.benihana.com/ -- is an American restaurant company founded by Hiroaki Aoki in New York City in 1964 and currently based in Aventura, Florida.[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 BLUE DIAMOND: Missouri Court Refuses to Remand Muller Class Suit ---------------------------------------------------------------- Judge Rodney W. Sippel of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denies the Plaintiff's motion to remand the case, BETH PEACOCK MULLER, Individually and On Behalf of All Others Similarly Situated, Plaintiffs, v. BLUE DIAMOND GROWERS, Defendant, Case No. 4:22 CV 707 RWS (E.D. Mo.). Ms. Muller filed the putative consumer protection class action suit in state court against Defendants Blue Diamond and Does 1 through 10. Blue Diamond removed the case to the Court on July 1, 2022, asserting federal jurisdiction under 28 U.S.C. Section 1332(d)(2) (the Class Action Fairness Act) ("CAFA"). Muller filed a motion to remand shortly thereafter. Ms. Muller alleges that Blue Diamond has engaged in deceptive marketing of its "Smokehouse Almond" products. Muller, who purchased a bag of the almonds in Missouri in May 2022, contends that Blue Diamond misrepresented the products and misled consumers because the almonds are not actually made in a smokehouse and are instead made with liquid smoke flavoring. She brings four state law claims in her suit: (1) breach of warranty, (2) breach of implied contract, (3) unjust enrichment, and (4) violation of the Missouri Merchandising Practices Act ("MMPA"). In her petition, Muller requested compensatory damages, restitution, and attorneys' fees, and injunctive relief. In her motion to remand, Muller relies on Rolwing v. Nestle Holdings, Inc., 666 F.3d 1069, 1072 (8th Cir. 2012), in which the U.S. Court of Appeals for the Eighth Circuit held that a plaintiff's damages stipulation could defeat CAFA jurisdiction. A year after Rolwing was decided, the U.S. Supreme Court held that a pre-certification damages stipulation "can tie a plaintiff's own hands, but it does not resolve the amount-in-controversy question" for purposes of determining whether CAFA jurisdiction exists. The Eighth Circuit has addressed the impact of Standard Fire on Rolwing on multiple occasions and has explicitly acknowledged that Rolwing is no longer good law. Judge Sippel finds that Muller's reliance on Rolwing is therefore misplaced, and her argument that Standard Fire only "partially abrogates" Rolwing is inaccurate. In any event, Muller contends that her full stipulation "solves the concern in Standard Fire" because it states that if she is replaced as named representative in the Action, her counsel stipulates and affirms and covenants that any and all potential class representatives for the Action must similarly stipulate and affirm the above limitation of recovery. Judge Sippel finds this attempted work-around of Standard Fire unavailing. He says the effect of the stipulation is the same, regardless of whether it is Muller herself or her counsel -- speaking on behalf of any future class representative -- promising to limit recovery for the entire class. It is still an effort to "legally bind members of the proposed class before the class is certified," in direct contravention of Supreme Court precedent. In her motion, Muller also argues that Blue Diamond has not met its burden to show that the amount in controversy exceeds $5 million. Blue Diamond has submitted two affidavits that offer estimates as to the potential amount in controversy. The first affidavit, from Christian Albitz, Blue Diamond's Vice President of Sales, North America Consumer, asserts that "retailers in Missouri have sold a total of 2 million units of Smokehouse Almonds over the proposed putative class period, May 2017 through May 2022, for a total of $10,831,340 in retail sales. While the total sales figure alone already exceeds CAFA's jurisdictional minimum, Blue Diamond also provided estimates as to the potential cost of injunctive relief and attorneys' fees. According to the affidavit submitted by Maya Erwin, Blue Diamond's Vice President of Innovation and Research and Development, North America Consumer, it would cost the company "at least $11.6 million" to comply. Finally, Blue Diamond estimates that attorneys' fees could reasonably total $3,547,679.19 (33% of the estimated actual damages). " Taken together, Judge Sippel finds the estimates far exceed CAFA's $5 million threshold. Muller did not contest these figures in her reply brief or offer any of her own specific estimates as to the amount in controversy. Based on the record before him, Judge Sippel finds that Blue Diamond has met its burden to show, by a preponderance of the evidence, that the amount in controversy exceeded $5 million when the case was removed. The Court therefore has subject matter jurisdiction under CAFA. Accordingly, Muller's motion to remand is denied. A full-text copy of the Court's Sept. 9, 2022 Memorandum & Order is available at https://tinyurl.com/yckcwfsj from Leagle.com. BMW OF NORTH AMERICA: 3rd Cir. Nixes $3.7MM Fee Award in Gelis Suit ------------------------------------------------------------------- In the case, ARTEM V. GELIS; BHAWAR PATEL; ROBERT McDONALD; JAMES V. OLSON; GREGORY HEYMAN; SUSAN HEYMAN; DEBRA P. WARD; DARRIAN STOVALL; ALEX MARTINEZ; AMANDA GOREY; CHRIS WILLIAMS; ASHOK PATEL; KENNETH GAGNON; MICHAEL CERNY; MARIA MEZA; ANDRE MALSKE; NICOLE GUY; DAVID RICHARDSON; STACEY TURNER; ERIC T. ZINN, individually and on behalf of all others similarly situated v. BMW OF NORTH AMERICA, LLC, Appellant, Case No. 21-2093 (3d Cir.), the U.S. Court of Appeals for the Third Circuit vacates the District Court's judgment approving a fee award of $3.7 million and remands for further proceedings. The appeal stems from the settlement of a consumer class action suit filed in 2017 against BMW and its German parent, claiming they knowingly manufactured and sold vehicles equipped with defective N20 and N26 engines. After the District Court granted in part and denied in part BMW's motion to dismiss, the named Plaintiffs filed a Second Consolidated Amended Complaint bringing 20 causes of action under federal and state law, including an alleged breach of warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2301 et seq. (a federal fee-shifting statute), breach of the implied warranty of merchantability, violation of various state consumer fraud and deceptive trade practice statutes, and unjust enrichment. The parties subsequently engaged a mediator and reached a settlement to reimburse class members for expenses incurred and provide them extended warranties. Because they did not know how many consumers would be eligible or make claims for certain benefits, the total value of the settlement was unknown. The District Court nonetheless concluded it was worth at least $27 million. As part of the settlement, the parties "agreed to submit the issue of attorneys' fees" to a Magistrate Judge "for final evaluation and decision of the exact amount of fees that should reasonably be awarded in the case." The Class counsel sought $3.7 million in attorneys' fees, the maximum allowable under the high-low provision, submitting to the Magistrate Judge three charts (one for each Plaintiffs' firm) detailing at a summary level the time devoted to various categories of legal work, aggregated across the entire three-year litigation period. The Magistrate Judge held a telephonic hearing. After listening to the parties' arguments, the Court ruled that the summary charts were "more than sufficient" and provided "a good indicator of the time spent." Applying the lodestar approach, it adopted the class counsel's requested lodestar amount of $1,934,000. It then applied the class counsel's requested multiplier of 1.9 to reach a total fee award of $3.7 million -- the full amount the class counsel sought. BMW now appeals. The threshold issue before the Third Circuit are: Whether BMW waived its right to appeal the District Court's attorneys' fees ruling through (1) its purported judicial admissions or (2) by agreeing to submit the issue of attorneys' fees to the District Court "for final evaluation and decision." The Third Circuit concludes no. First, it holds that stipulations regarding attorneys' fees in class actions must contain an express waiver of appeal. This tracks the case law in this area, which recognizes that the "unique relationship among plaintiffs' counsel, plaintiffs, and defendants in class actions imposes a special responsibility upon appellate courts to hear challenges to fee awards." Because BMW did not expressly waive its right to appeal the District Court's fee determination, it preserved that right. With waiver out of the way, the Third Circuit turns to the merits. BMW argues the District Court granted the class counsel's fee request on an insufficient record. The Third Circuit agrees. It notes that the summary charts total only three pages but purport to summarize hours billed across a three-year period. And while the charts do provide some information about the hours devoted to litigation activities, the hours billed by each attorney are aggregated across the entire three-year litigation period. That sort of aggregation, without more detail, is an insufficient basis for an attorneys' fee award. The Third Circuit simply cannot discern from the charts whether certain hours are duplicative (a determination that is particularly crucial, given that three Plaintiffs' firms seek fees for performing the same categories of work) or whether the total hours billed were reasonable for the work performed. The class counsel's mere offer to provide the District Court more documentation does not cure the Court's failure to take counsel up on that offer and review the complete records. As its lodestar award was thus based on an insufficient record, the Third Circuit vacates its order and remands for further proceedings. BMW also argues the District Court improperly applied a lodestar multiplier to the class counsel's fee award. It contends "multipliers are inappropriate where fees are based on a fee-shifting statute, determined by a lodestar calculation, as they were in the case." As it vacates and remands the District Court's fee award because the lodestar calculation was based on an insufficient record, the Third Circuit declines to decide whether the District Court was bound by the strictures of Perdue in considering a fee enhancement. It does, however, note two things for the parties and the Court to consider on remand. First, it thinks the parties' focus on the statutes under which named plaintiffs sued is misplaced, as the "Court awarded the attorney's fees pursuant to a contract--the settlement agreement--not pursuant to a statute." Second, it urges the District Court on remand to provide additional reasoning for its decision whether to add a lodestar multiplier. In light of the foregoing, the Third Circuit concludes that in their class action settlement, the parties agreed to cabin the class counsel's attorneys' fees request within a high-low range, subject to final determination by the District Court. Though it granted a fee award at the high end of that range, its calculation was not supported by the record before it. Because the Third Circuit cannot tell whether the hours the class counsel billed were reasonable for the work performed, it vacates the Court's order and remands for further proceedings. A full-text copy of the Court's Sept. 9, 2022 Opinion is available at https://tinyurl.com/5n7378ua from Leagle.com. Christopher J. Dalton -- christopher.dalton@bipc.com -- (Argued) 550 Broad Street, Suite 810, Newark, NJ 07102. Jacqueline M. Weyand -- jacqueline.weyand@bipc.com -- Buchanan Ingersoll & Rooney, 640 5th Avenue, 9th Floor, New York, NY 10019, Counsel for the Appellant. Jay I. Brody -- jbrody@kgglaw.com -- Gary S. Graifman -- ggraifman@kgglaw.com -- (Argued) Kantrowitz Goldhamer & Graifman, 135 Chestnut Ridge Road, Suite 200, Montvale, NJ 07645. Randee Matloff, Bruce H. Nagel, (Argued) Nagle Rice, 103 Eisenhower Parkway, Roseland, NJ 07068. Thomas P. Sobran, 7 Evergreen Lane, Hingham, MA 02043, Counsel for the Appellees. BOCCARA ART & DESIGN: Senior Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Boccara Art & Design LLC. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Boccara Art & Design LLC, Case No. 1:22-cv-07782 (S.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Boccara Art & Design -- https://boccara-art.com/ -- is a global network of Modern and Contemporary Fine Art Galleries and exhibition spaces.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal BOTTINO CORP: Cruz Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Bottino Corp. The case is styled as Miriam Cruz, on behalf of herself and all others similarly situated v. Bottino Corp., Case No. 1:22-cv-05455 (S.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bottino -- https://bottinoinc.com/ -- is an Italian restaurant offering Tuscan cooking & boutique wines served in a setting that includes a spacious year-round garden.[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 BOWERY HOTEL: Cruz Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against The Bowery Hotel, LLC. The case is styled as Miriam Cruz, on behalf of herself and all others similarly situated v. The Bowery Hotel, LLC, Case No. 1:22-cv-05460-RPK-PK (S.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Bowery Hotel -- https://www.theboweryhotel.com/ -- is the standard of service, style, and sophistication in New York City's Lower East Side.[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 BRASS MONKEY: Cruz Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Brass Monkey, LLC. The case is styled as Miriam Cruz, on behalf of herself and all others similarly situated v. Brass Monkey, LLC, Case No. 1:22-cv-05502 (S.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Brass Monkey -- https://brassmonkeynyc.com/ -- is a casual neighborhood bar with a classic American menu available for lunch, dinner and brunch (on weekends).[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 C3 AI: N.D. California Approves Stipulation to Stay Suri Suit ------------------------------------------------------------- Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California signed the parties' stipulation to stay the lawsuit styled NAREN SURI, Derivatively on Behalf of C3.AI, INC., Plaintiff v. THOMAS M. SIEBEL, PATRICIA A. HOUSE, RICHARD LEVIN, MICHAEL G. McCAFFERY, CONDOLEEZZA RICE, S. SHANKAR SASTRY, BRUCE SEWELL, STEPHEN M. WARD JR., LISA A. DAVIS, JIM H. SNABE, AND DAVID BARTER, Defendants, and, C3.AI, INC., Nominal Defendant, Civil Action No.: 4:22-cv-3031-HSG (N.D. Cal.). Plaintiff Suri, derivatively on behalf of C3 AI, and Individual Defendants Thomas M. Siebel, Patricia A. House, Richard Levin, Michael G. McCaffery, Condoleezza Rice, S. Shankar Sastry, Bruce Sewell, Stephen M. Ward Jr., Lisa A. Davis, Jim H. Snabe, and David Barter, jointly submit the Stipulation to temporarily Stay the Derivative Litigation. Plaintiff Suri filed the action purportedly in the right, and for the benefit of C3 AI against all Individual Defendants alleging against the Individual Defendants, among other things, breach of fiduciary duties and violations of Section 10(b) and 21D of the Securities Exchange Act of 1934 ("Exchange Act") that allegedly caused harm to C3 AI (the "Derivative Action"). Pending in the U.S. District Court for the Northern District of California is a putative securities class action captioned The Reckstin Family Trust v. C3.ai, Inc., et. al., Civil Action No. 4:22-cv-1413. There is overlap between the facts and circumstances alleged in the Derivative Action and the Securities Action, including the relevance of many of the same documents and witnesses. C3 AI, Thomas M. Siebel, David Barter, Patricia A. House, Richard Levin, Michael G. McCaffery, Condoleezza Rice, S. Shankar Sastry, Bruce Sewell, and Stephen M. Ward, Jr., named Defendants in the Derivative Action, are also named as Defendants in the Securities Action. The Securities Action Defendants anticipate filing a motion to dismiss in the Securities Action for failure to state a claim. In order to promote economy of time and effort for the Court, for the counsel, and for litigants, the Parties have agreed that, in light of the overlap between the Derivative Action and the Securities Action, and in light of the stay of discovery that will apply pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA") following the filing of a motion to dismiss in the Securities Action, the Derivative Action should be voluntarily stayed on the terms set forth below pending resolution of the Securities Action. The counsel for C3 AI is arranging for the Individual Defendants to retain counsel and to accept service of the summons and complaint in the Derivative Action, but more time is needed to arrange same. The Parties, through their undersigned counsel, agree, stipulate, and respectfully request that the Court enters an order as follows: 1. Defendant C3 AI accepts service of the Summons and Complaint in the Derivative Action. 2. The time for the Plaintiff to serve the Individual Defendants under Rule 4 of the Federal Rules of Civil Procedure is tolled during the pendency of the stay. 3. The Derivative Action will be stayed upon the Court's endorsement of the Stipulation as an Order of the Court and all current Court dates and deadlines are vacated. 4. C3 AI will promptly notify the Plaintiff upon becoming aware of any derivative actions or of any Section 220 demands or litigation demands related to the facts and circumstances alleged in the Derivative Action and the Securities Action. 5. The Parties agree that during the pendency of the stay, C3 AI will inform the Plaintiff promptly upon the scheduling of any mediation or settlement talks with the plaintiff in the Securities Action, and will make a good faith effort to include the Plaintiff in any mediation or settlement talks with the plaintiff in the Securities Action. In the event that the Defendant's good faith efforts do not result in including the Plaintiff in the mediation with plaintiff in the Securities Action, then the Defendant agrees to mediate with the Plaintiff in the Derivative Action at or about the same time. The Parties further agree that the Defendant will inform the Plaintiff promptly upon the scheduling of any mediation or settlement talks with any other derivative plaintiffs who have asserted claims substantially similar to the claims asserted by the Plaintiff, and will include the Plaintiff in any such mediation or settlement talks. The Plaintiff's ability to attend and participate in any mediation or formal settlement meeting is contingent upon his agreement to be bound by any confidentiality agreement or stipulation governing such mediation or formal settlement meeting. 6. The Parties agree that notwithstanding a stay of the Derivative Action, the Plaintiff may file an amended complaint; however, the Defendants named in the current complaint, or any amended complaints, need not answer or otherwise respond to the Complaint or to any other complaint or amended complaint that is filed in, or consolidated with, the above-captioned action during the pendency of the stay. 7. In the event that, during the pendency of the stay, the Defendant produces in the Securities Action, or in any related derivative litigation, or pursuant to any stockholder demand for an inspection of books and records on behalf of C3 AI, any documents that relate to the subject matter of the Complaint, then copies of such documents will be provided to Counsel for Plaintiff within 30 days of such production, subject to the execution by the Plaintiff of a reasonable confidentiality agreement governing the use and disclosure of these materials. The Plaintiff agrees that copies of any documents provided to him pursuant to paragraph 6 will be deemed incorporated by reference into any future amended or consolidated complaint, provided that copies of such documents are in the Plaintiff's possession prior to the filing of such amended or consolidated complaint and the Plaintiff will not make any argument to the contrary in any motion or otherwise. 8. In the event that any depositions take place in the Securities Action during the pendency of the stay (other than depositions of plaintiffs in the Securities Action), the Defendant will either, at its sole and absolute discretion on a witness-by-witness basis: (i) invite the Plaintiff to attend and participate in such depositions, or if Plaintiff declines to attend and participate in said deposition, (ii) provide the Plaintiff copies of the transcripts of such depositions and the exhibits used during such depositions. If the Plaintiff attends and participates in a deposition in the Securities Action, then the Plaintiff will be precluded from deposing that witness in the Derivative Action or any future consolidated derivative action that includes the Derivative Action. The Plaintiff agrees that copies of any transcripts or exhibits provided to him pursuant to the Paragraph 7 will be deemed incorporated by reference into any future amended or consolidated complaint in the Derivative Action to the extent that copies of such documents are in Plaintiff's possession prior to the filing of such future amended or consolidated complaint, and the Plaintiff will not make any argument to the contrary in any motion or otherwise. 9. The Parties agree that if the plaintiff in any related derivative action refuses to agree to a stay under similar terms, Plaintiff may lift the agreed stay upon 10 days' notice in writing to the undersigned Counsel for the Defendant via email. 10. Except as provided in the Stipulation, the Derivative Action is stayed in its entirety and will remain stayed pending resolution of the Securities Action. Notwithstanding the foregoing, the parties may agree to lift the stay, in whole or in part, in a written stipulation filed with the Court, and, for good cause and (except in exigent circumstances) on 30 days' prior written notice to all other Parties, any Party may move the Court to lift the stay, subject to the other Parties' right to oppose such motion or to seek to extend the stay. If the stay is not lifted earlier, then the stay will expire when the Securities Action is finally resolved or otherwise concluded via a settlement or judgment at the U.S. District Court level. The parties will inform the Court within 30 days following resolution of the Securities Litigation. 11. Within 30 days of the termination of the stay, the counsel for the Parties will meet and confer concerning a schedule for further proceedings. 12. The parties to the Derivative Litigation are not waiving any rights, claims, or defenses of any kind, and no part of this stipulation will be construed as a waiver of any rights, claims, or defenses. 13. The Order will remain in effect until further order of the Court. Pursuant to the Stipulation, Judge Gilliam so ordered. A full-text copy of the Court's Sept. 7, 2022 Order is available at https://tinyurl.com/nhe8zkxd from Leagle.com. Lauren A. Dean -- Lauren@MagDeanLaw.com -- MAGNANIMO DEAN LAW, APC Woodland Hills, CA, Thomas J. McKenna -- tjmckenna@gme-law.com -- GAINEY McKENNA & EGLESTON New York, NY, Attorneys for Plaintiff Naren Suri. Harry A. Olivar, Jr. -- harryolivar@quinnemanuel.com -- QUINN EMANUEL URQUHART & SULLIVAN, LLP Los Angeles, CA, Attorneys for C3.ai, Inc. CABOT HOSIERY MILLS: Ortiz Files ADA Suit in W.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Cabot Hosiery Mills, Inc. The case is styled as Joseph Ortiz, on behalf of himself and all other persons similarly situated v. Cabot Hosiery Mills, Inc., Case No. 1:22-cv-00697-LJV (W.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Cabot Hosiery Mills, Inc., doing business as Darn Tough -- http://www.darntough.com/-- designs, manufactures, and markets lifestyle socks.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: jeffrey@gottlieb.legal - and - Michael A. LaBollita, Esq. GOTTFRIED & GOTTFRIED, LLP 122 East 42nd. St., Suite 620 New York, NY 10168 Phone: (212) 228-9795 Email: michael@gottlieb.legal CALIFORNIA INSTITUTE: Reilly Files Suit in Cal. Super. Ct. ---------------------------------------------------------- A class action lawsuit has been filed against California Institute Of Integral Studies, et al. case is styled as Erin Reilly, as an individual, on behalf of herself and all persons similarly situated, and in her representative capacity, on behalf of the state of California, the general public, and all aggrieved employees v. California Institute Of Integral Studies, Does 1 through 50 Inclusive, Case No. CGC22601803 (Cal. Super. Ct., San Francisco Cty., Sept. 14, 2022). The case type is stated as "Other Non-Exempt Complaints." California Institute of Integral Studies (CIIS) -- https://www.ciis.edu/ -- offers 25 academic programs that train healers and thought-leaders through a blend of academic, cultural, spiritual, and philosophic inquiry.[BN] The Plaintiff is represented by: Vilmarie Cordero, Esq. GRAHAMHOLLIS APC 3555 5th Ave., Ste. 200 San Diego, CA 92103-5057 Phone: 619-906-4025 Fax: 619-692-0822 Email: vcordero@grahamhollis.com CALIFORNIA: Northern District Court Dismisses Harris v. Cisneros ---------------------------------------------------------------- Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California dismisses the lawsuit styled MARVIN HARRIS, Plaintiff v. THERESA CISNEROS, et al., Defendants, Case No. 22-cv-03641-PJH (N.D. Cal.). The Plaintiff, a state prisoner, proceeds with a pro se civil action against a governmental entity. He has been granted leave to proceed in forma pauperis. The Plaintiff's complaint is not entirely clear, but it appears that he seeks Court intervention in obtaining his economic impact payment ("EIP") pursuant to the Coronavirus Aid, Relief, and Economic Security Act (The "CARES Act"), Pub. L. No. 116-136, 134 Stat. 281 (2020). In Scholl v. Mnuchin, 494 F.Supp.3d 661 (N.D. Cal. 2020) (Scholl II), the court summarized the underlying issue that is central to plaintiff's complaint. In Scholl v. Mnuchin, 489 F.Supp.3d 1008 (N.D. Cal. 2020) (Scholl I), the court preliminarily certified the following class: All United States citizens and legal permanent residents who: (a) are or were incarcerated (i.e., confined in a jail, prison, or other penal institution or correctional facility pursuant to their conviction of a criminal offense) in the United States, or have been held to have violated a condition of parole or probation imposed under federal or state law, at any time from March 27, 2020 to the present; (b) filed a tax return in 2018 or 2019, or were exempt from a filing obligation because they earned an income below $12,000 (or $24,400 if filing jointly) in the respective tax year; (c) were not claimed as a dependent on another person's tax return; and (d) filed their taxes with a valid Social Security Number, and, if they claimed qualifying children or filed jointly with another person, those individuals also held a valid Social Security Number. Excluded from the class are estates and trusts; defendants; the officers, directors, or employees of any defendant agency; and, any judicial officer presiding over this action and his/her immediate family and judicial staff. In Scholl II, the court granted final certification of this class and entered the following declaratory relief: "The court finds and declares that title 26 U.S.C. Section 6428 does not authorize defendants to withhold advance refunds or credits from class members solely because they are or were incarcerated. The court further finds and declares that defendants' policy that persons who are or were incarcerated at any time in 2020 were ineligible for advance refunds under the Act is both arbitrary and capricious and not in accordance with law." In Scholl II, a permanent injunction was entered and defendants were to reconsider EIPs that were denied solely due to an individual's incarcerated status. With respect to specific payments the court stated that it takes no position on whether plaintiffs or class members are in fact owed advance refund payments or the amount of those payments. The Plaintiff is incarcerated and part of the Scholl class. He filed this case on June 22, 2022. Though it is not entirely clear it appears that he seeks the court to compel the IRS to provide his EIPs. To the extent he argues that his EIP was denied due to his incarcerated status, he is already a member of the Scholl class; therefore, he is not entitled to separate individual relief, Judge Hamilton holds. Nor is the Plaintiff entitled to relief to the extent he seeks the court to compel the IRS to provide his EIPs pursuant to Scholl or the CARES Act, Judge Hamilton explains. The court in Scholl found that the EIP could not be denied only because an individual was incarcerated. However, the court was clear that it took no position on whether individual incarcerated plaintiffs were owed the EIP, which is the relief sought in the instant case. Judge Hamilton points out that that responsibility fell to the IRS to make an individual determination. More importantly, funds cannot now be distributed pursuant to the CARES Act. The CARES Act imposed a deadline of Dec. 31, 2020, for EIPs to be made or allowed. That deadline has passed, and no more funds may be issued. The Plaintiff cannot obtain the relief he seeks in this case. For all these reasons, Judge Hamilton finds the Plaintiff fails to state a claim for relief. The complaint will be dismissed without leave to amend because it is clear that no amount of amendment would cure the deficiencies noted. To the extent that the Plaintiff alleges prison officials at his facility in the Eastern District of California have interfered with his EIP or have seized it, he must file an action in the Eastern District. Hence, Judge Hamilton rules that the action is dismissed without leave to amend. The clerk will close this case. To the extent the Plaintiff alleges that prison officials interfered with his EIP, he must file a case in the Eastern District of California. A full-text copy of the Court's Order dated Sept. 8, 2022, is available at https://tinyurl.com/29ecrubn from Leagle.com. CAPITAL ONE: $190M Data Breach Settlement Gets Final Court Okay --------------------------------------------------------------- Dan Avery, writing for CNET, reports that Capital One's $190 million settlement resulting from a massive 2019 data breach received final approval on Sept. 8, and the deadline to file a claim -- and get a piece of the payout -- is less than two weeks week away. More than 106 million US and Canadian customers' information was exposed in the March 2019 cyberattack. Plaintiffs in a class action settlement in the wake of the attack argued that convicted hacker Paige Thompson couldn't have accessed Capital One's Amazon-hosted cloud computing systems if adequate cybersecurity protections were in place. The bank "knew of the particular security vulnerabilities that permitted the data breach" according to their complaint, but did nothing to rectify them and its negligence put millions of people at risk for fraud and identity theft. Capital One didn't respond to a request for comment. It has denied any wrongdoing in filings and, in a statement, said it was agreeing to the payout "in the interest of avoiding the time, expense and uncertainty of continued litigation." Here's what you need to know about the Capital One settlement, including who is eligible for a check, how to file a claim and how much money you could receive. For more on class-action cases, find out if you're eligible for money from T-Mobile's $350 million data breach case, Apple's $14.8 million iCloud storage settlement or Sara Lee's $1 million false advertising settlement. What happened in the 2019 Capital One data breach? In one of the largest financial security breaches in US history, a hacker accessed the personal information of about 106 million Capital One customers and applicants in March 2019. The massive attack went undiscovered until July 2019. Capital One said about 140,000 Social Security numbers and 80,000 US bank account numbers were exposed, as well as birth dates, addresses, phone numbers, credit balances, transactions and credit scores. No login information or credit card account numbers were obtained, the bank said, though one million Canadian credit card customers and applicants had their Social Insurance Numbers revealed, as well. Seattle engineer Paige Thompson, a former Amazon cloud employee, was ultimately arrested in connection with the cyberattack. In June 2022, she was convicted of wire fraud and unauthorized access and damage to a protected computer. Thompson illegally gained access to personal information related to credit card applications dating between 2005 and early 2019 for both personal and small-business accounts, Capital One said. "With some of her illegal access, she planted cryptocurrency mining software on new servers with the income from the mining going to her online wallet," the Department of Justice said in a release, adding that Thompson used an alias to brag on social media and online forums about masterminding the attack. Capital One was also fined $80 million and has agreed to enhance its cloud security standards. The corporation said, when it became aware of the breach, it immediately fixed its servers' vulnerability to forged requests. Who qualifies for a payment from the Capital One settlement? Some 98 million applicants and cardholders are eligible to file a valid claim, according to Capital One, which said it sent letters and emails to members whose Social Security numbers or bank account numbers were exposed in the hack. If you think you're eligible but did not receive a notice, contact the settlement administrator at 855-604-1811 for assistance. How much can I receive from the Capital One settlement? a Capital One bank in New York City About 140,000 Social Security numbers and 80,000 Capital One account numbers were exposed, along with birth dates, addresses, phone numbers, credit balances, bank transactions and credit scores. Heather Shimmin/Getty Images Class members can collect up to $25,000 in cash for lost time and out-of-pocket expenditures relating to the breach, including unreimbursed fraud charges, money spent preventing identity theft and fees to professional data security services. You can claim up to 15 hours of lost time spent addressing the issue, at a rate of at least $25 per hour. The settlement also provides three years of free identity protection services through the Pango Group, including identity monitoring, lost wallet protection, security freeze capabilities, dark-web monitoring, free account restoration, and $1 million in identity theft and fraud insurance. How do I file a claim in the Capital One data breach case? You can file online at the class-action settlement website. You'll need the Unique ID and PIN printed on the notice you received from Capital One in the mail or via email, along with detailed documentation, including receipts, bank statements, voided checks and invoices. (If you lost your notice or never received one, contact the settlement administrator at 855-604-1811.) You can also print out a paper claim form and mail it in, along with any supporting documentation, to the settlement administrator at: Capital One Data Breach Settlement Administrator P.O. Box 4518 Portland, OR 97208–4518 When is the deadline to file a claim? The original deadline to file a valid claim in the Capital One case was Aug. 22 but that deadline has been extended to Sept. 30, 2022. The deadline for exclusion from the settlement in order to retain the right to pursue separate legal action expired on July 7. When will class members receive their payments? The settlement was given final approval on Sept. 8, but there may still be appeals that slow the process down. The settlement administrator will notify claimants about the timeline for payments. Payments will be made by either direct deposit or paper check, depending on the method selected [GN] CHARTER COMMUNICATIONS: Arbitration of Harper's PAGA Claims Denied ------------------------------------------------------------------ In the case, LIONEL HARPER, DANIEL SINCLAIR, HASSAN TURNER, LUIS VAZQUEZ, and PEDRO ABASCAL, individually and on behalf of all others similarly situated and all aggrieved employees, Plaintiffs v. CHARTER COMMUNICATIONS, LLC, Defendant, Case No. 2:19-cv-00902 WBS DMC (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the Eastern District of California denies the Defendant's motion to compel arbitration of the Plaintiff's PAGA claims. The putative wage-and-hour class action, which has an extensive history before the Court, includes claims under California's Private Attorney General Act ("PAGA"), Cal. Lab. Code Sections 2698 et seq., based on alleged labor code violations by Charter. The Court previously ruled on a motion by Charter to compel arbitration of all claims brought by the Plaintiffs, except for Harper's PAGA claims, deciding the motion in Charter's favor. It subsequently stayed the action in its entirety, in part because of a case that was then pending before the U.S. Supreme Court, Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906, 1914 (2022), which had the potential to impact the PAGA claims in this action. In Iskanian v. CLS Transp. L.A., LLC, 59 Cal.4th 348 (2014), the California Supreme Court held that waivers of employees' right to bring "representative" PAGA claims, in the first sense, are barred under California law. The Supreme Court termed this "Iskanian's principal rule." Iskanian further held that agreements to "arbitrate or litigate 'individual PAGA claims for Labor Code violations that an employee personally suffered,'" separately and apart from representative PAGA claims in the second sense -- i.e., PAGA claims for labor code violations suffered by other current and former employees -- are invalid. The Supreme Court termed this Iskanian's "secondary rule." The Supreme Court has since issued a decision in that case, and the Court has partially lifted the stay of this action to consider, among other things, a motion by Charter based on Viking River Cruises. That motion, through which Charter seeks to compel arbitration of a portion of Harper's PAGA claims and to dismiss the remainder, is now before the Court. Specifically, Charter seeks to compel Harper to arbitrate his "individual" PAGA claims, as distinct from his "representative" PAGA claims. In Viking River Cruises, the Supreme Court overturned Iskanian's secondary rule, holding that it was preempted by the FAA. However, the Court upheld Iskanian's first rule, concluding that the FAA did not preempt California's bar on waivers of employees' ability to represent the state in PAGA actions. Accordingly, under Viking River Cruises, employees may waive the right to bring PAGA claims that are specifically premised on labor code violations they have personally suffered, but "waivers of the right to assert claims on the state's behalf under PAGA" remain invalid. Based on Viking River Cruises and an arbitration agreement into which Harper and Charter entered, titled the "Solution Channel Agreement," Charter now seeks to compel Harper's "individual" PAGA claims -- i.e., only those premised on alleged labor code violations he personally suffered -- to arbitration. It also asks that the court dismiss Harper's remaining PAGA claims -- i.e., those premised on alleged labor code violations suffered by other employees -- for 'representative' claims." The question before the Court is whether the Solution Channel Agreement provides for the splitting of PAGA claims into "individual" and "non-individual" claims, as discussed in Viking River Cruises, such that the individual PAGA claims may be compelled to arbitration and the non-individual claims dismissed. Judge Shubb holds that the Solution Channel Agreement includes a similar waiver of representative claims, although it does not reference PAGA by name. Like the arbitration agreement in Viking River Cruises, it also contains a severability clause. The Solution Channel Agreement's waiver of representative actions, like the "representative PAGA" action waiver in the arbitration agreement in Viking River Cruises, is ambiguous as to the meaning of "representative" as it applies to PAGA actions. Thus, under Viking River Cruises and Iskanian, "this provision is invalid if construed as a wholesale waiver of PAGA claims," and the Agreement "remains invalid insofar as it is interpreted in that manner." Because basic principles of contract interpretation require the court to construe ambiguities against the drafter of the contract, including in the context of an arbitration agreement, Judge Shubb interprets the waiver's prohibition on "representative" actions as including a waiver of employees' right to bring a PAGA action on behalf of the state. The waiver provision is therefore invalid under Iskanian unless its prohibition on representative PAGA actions (in the first sense of the term) can be severed under the Agreement's severability clause, as was the case in Viking River Cruises. Like the severability clause in that case, which required that "if any 'portion' of the waiver remained valid," that portion "would be 'enforced in arbitration,'" the Agreement's severability clause provides that "if any portion or provision of this Agreement" is determined to be invalid and "cannot be modified to be legal, valid or enforceable," that portion will be severed and the remainder of the Agreement enforced. Unlike the clause in Viking River Cruises, however, the Agreement's severability clause specifically exempts the "representative action waiver" from severance, such that the Agreement "shall be null and void with respect to such representative claim only, and the dispute will not be arbitrable with respect to such claim(s)." Because Judge Shubb has concluded that the Agreement's representative action waiver is unenforceable as to PAGA claims as a matter of law, under the Agreement's severability clause, the Agreement is "null and void with respect to" such claims. Accordingly, he concludes that the Solution Channel Agreement does not bar any portion of Harper's PAGA claims or require arbitration thereof. Therefore, Charter's motion to compel arbitration of Harper's PAGA claims and to dismiss Count Ten of the operative complaint is denied. A full-text copy of the Court's Sept. 7, 2022 Order is available at https://tinyurl.com/4x9a9xc8 from Leagle.com. CHEWY INC: Farst Sues Over Unlawful Interception and Wiretapping ---------------------------------------------------------------- Matthew Farst, individually and on behalf of all others similarly situated v. CHEWY, INC., Case No. 1:22-cv-01434-CCC (M.D. Pa., Sept. 14, 2022), is brought under the Pennsylvania Wiretapping and Electronic Surveillance Control Act ("WESCA") stemming from the Defendant's unlawful interception of the Plaintiff's and Class members' electronic communications through the use of "session replay" spyware that allowed the Defendant to watch and record Plaintiff's and the Class members' visits to its website. The Defendant utilized "session replay" spyware to intercept the Plaintiff's and the Class members' electronic computer-to-computer data communications with Defendant's website, including how they interacted with the website, their mouse movements and clicks, keystrokes, search terms, information inputted into the website, and pages and content viewed while visiting the website. The Defendant intercepted, stored, and recorded electronic communications regarding the webpages visited by Plaintiff and the Class members, as well as everything Plaintiff and the Class members did on those pages, e.g., what they searched for, what they looked at, the information they inputted, and what they clicked on. The Defendant intercepted the electronic communications at issue without the knowledge or prior consent of Plaintiff or the Class members. The Defendant did so for its own financial gain and in violation of the Plaintiff's and the Class members' substantive legal privacy rights under the WESCA, says the complaint. The Plaintiff visited the Defendant's website 4 or more times over the past year and recently visited on August 2022. The Defendant owns and operates the following website: www.chewy.com.[BN] The Plaintiff is represented by: Ari H. Marcus, Esq. MARCUS ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (732) 695-3282 Facsimile: (732) 298-6256 Email: Ari@marcuszelman.com CIGNA CORP: AMA, State Physician Groups Join MultiPlan Class Action ------------------------------------------------------------------- Jakob Emerseon, writing for Becker's Payer Issues, reports that the American Medical Association, the Medical Society of New Jersey and the Washington State Medical Association joined a class-action lawsuit against Cigna Sept. 12 for allegedly failing to pay medical claims in full after members submitted them through MultiPlan, the nation's largest PPO network. The lawsuit was originally filed by Cigna members June 10 in a Connecticut federal court and accuses the payer of a purposeful scheme to underpay claims and increase administrative fees. According to the original lawsuit, Cigna is a MultiPlan client and must accept a set percentage of a provider charge as a full payment, which means patients are not responsible for discrepancies between the original charge and the lower MultiPlan price. When processing member claims submitted through the MultiPlan network, Cigna is supposed to apply the MultiPlan rate and not use its out-of-network rates -- the lawsuit claims the payer occasionally does the opposite, thereby underpaying claims and failing to provide full benefits to members. "By engaging in this misconduct, Cigna . . . breached its fiduciary duties, including its duty to honor written plan terms and its duty of loyalty, because its conduct serves Cigna's own economic self-interest and elevates Cigna's interests above the interests of plan member patients," the suit said. Becker's has reached out to Cigna for comment and will update this story if more information becomes available. [GN] CLOROX COMPANY: Baez Class Suit Moved From E.D.N.Y. to N.D. Cal. ---------------------------------------------------------------- The case styled MARISOL BAEZ, individually and on behalf of all others similarly situated v. THE CLOROX COMPANY AND THE BURT'S BEES PRODUCTS COMPANY, Case No. 1:22-cv-03990, was transferred from the U.S. District Court for the Eastern District of New York to the U.S. District Court for the Northern District of California on September 13, 2022. The Clerk of Court for the Northern District of California assigned Case No. 3:22-cv-05218-SK to the proceeding. The case arises from the Defendants' alleged violations of the New York General Business Law, breach of express warranty, fraudulent concealment, and unjust enrichment by engaging in false, deceptive, and misleading advertising, labeling, and marketing of mascara line of products. The Clorox Company is a conglomerate and major manufacturer of household products, headquartered in Oakland, California. The Burt's Bees Products Company is a wholly owned subsidiary of The Clorox Company. [BN] The Plaintiff is represented by: Jason P. Sultzer, Esq. Joseph Lipari, Esq. Daniel Markowitz, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Avenue, Suite 1800 New York, NY 10016 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerj@thesultzerlawgroup.com liparij@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and - David C. Magagna Jr., Esq. Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 E-mail: dmagagna@lfsblaw.com cschaffer@lfsblaw.com COLLECTO INC: Court Denies Bid to Amend Answer to Davis Complaint ----------------------------------------------------------------- Judge Robert C. Chambers of the U.S. District Court for the Southern District of West Virginia, Huntington Division, issued a Memorandum Opinion and Order denying the Defendant's Motion to Amend its Answer in the lawsuit entitled BRENDA DAVIS, CLARENCE DAVIS, and all others similarly situated, Plaintiffs v. COLLECTO, INC., D.B.A. EOS CCA, Defendant, Case No. 3:21-0044 (S.D.W. Va.). The Defendant seeks to amend its Answer to assert an affirmative defense of arbitration and class waiver. Also pending before the Court is the Plaintiffs' Motion for Leave to File a Surreply in Response to Defendant's Reply in support of the instant motion to amend its Answer. As the Plaintiffs' motion is no longer necessary, the Court dismisses the motion as moot. The lawsuit stems from the Defendant's alleged improper attempts at debt collection from the Plaintiffs on behalf of Dish Network, Inc. On Feb. 6, 2020, the Plaintiffs filed a six-count class action Complaint in West Virginia state court pursuant to Rule 23 of the West Virginia Rules of Civil Procedure. On March 23, 2020, the Defendant removed the case to federal court. It then filed its Answer to the Complaint on April 14, 2020. However, the case was remanded on May 1, 2020, pursuant to the Plaintiffs' request on a finding that the Defendant had failed to establish by a preponderance of the evidence that the amount in controversy exceeded $75,000. Upon remand, it was determined that the Plaintiffs would seek $5 million in damages. Accordingly, on Jan. 15, 2021, the Defendant again removed the case to federal court. The Court entered a Scheduling Order on March 11, 2021, pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, which set a June 4, 2021 deadline for the filing of amended pleadings. The Defendant filed the present Motion to File an Amended Answer on July 14, 2022. According to the Court's Memorandum Opinion and Order, the motion is denied because the Defendant has not (i) argued the correct legal standard for Rule 16(b); and (ii) met the Rule 16(b) good cause standard. First, Judge Chambers holds, the Defendant has failed to argue the correct standard for obtaining leave to amend its Answer, repeatedly arguing only the Rule 15(a)(2) standard while ignoring the threshold Rule 16(b) analysis. Instead of demonstrating diligence, Judge Chambers says the Defendant has vacillated between arguing good faith and lack of prejudice to the Plaintiffs under the Rule 15(a)(2) framework, neither of which is relevant to the Rule 16(b) analysis. Nowhere in its filings with the Court does the Defendant address the long-established good cause standard. In fact, the Plaintiffs' Response provided the Defendant with the correct standard, which the Defendant failed to employ in its Reply. Judge Chambers holds that the Plaintiffs are correct that absent a threshold finding of good cause, the arguments forwarded by the Defendant under the Rule 15(a)(2) standard will not be considered by the Court. Second, Judge Chambers holds, the Defendant has not met the Rule 16(b) good cause standard of diligence. In ascertaining diligence, the Court looks to the moving party's reasons for seeking modification; mere "carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief"--the Court must determine that the pretrial schedule could not be reasonably met by a diligent party. The Court has previously found good cause where, for example, the non-moving party withheld documents during discovery, W.V. Housing Dev. Fund v. Ocwen Tech. Xchange, Inc., 200 F.R.D. 564, 567 (S.D.W.Va. 2001), provided an overabundance of discovery material for the moving party to analyze, Felman Prod., Inc. v. Indus. Risk Ins., 2010 WL 3119338, at *3 (S.D.W.Va. 2010), or delayed the discovery process via untimely filings, Stewart, 212 F.R.D. at 497. In such cases, the moving party could not have obtained the information sought to be included in the amended filing despite reasonable diligence. In contrast, Judge Chambers opines, the Defendant had clear opportunity to obtain the pertinent information prior to the scheduling deadline. The evidence supporting the Defendant's affirmative defense for arbitration came from a waiver clause in Dish Network's Residential Customer Agreement, which provides that resolution of any dispute (including those arriving from billing or calls on a party purporting to act on Dish's behalf) are subject to arbitration. Similarly, it provides that the arbitration and class waiver provision extends to third-party billing representatives, which the Defendant claims it is. While the Defendant has asserted that it only recently gained access to the information and relevant documents concerning Plaintiff Brenda Davis's account with Dish Network, its explanation for its recent discovery of the Agreement appears to be the result of carelessness rather than due diligence, Judge Chambers observes. The Defendant's explanation for how it failed to discover the Agreement for more than two years leaves much to the imagination, Judge Chambers points out. In its Motion to Amend on July 14, 2022, the Defendant stated that it learned of the Agreement's existence only as the discovery process revealed a previous action the Plaintiffs filed against Dish Network in 2018. In fact, the Plaintiffs' Complaint, filed in state court on Feb. 6, 2020, stated the existence of the prior case and the Agreement. Furthermore, the Plaintiffs attached a copy of an affidavit of Mr. Joey Montano of Dish Network, which had previously been filed in the 2018 action. Mr. Montano referred to the Agreement by name, indicating that it was attached to the original affidavit as an exhibit. The Complaint provided the PACER citation necessary for the Defendant to access these exhibits. While the Defendant has argued that a lengthy discovery process was required for it to access Ms. Davis's account documents with Dish Network, the Complaint indicates that the Agreement between Ms. Davis and Dish Network has been publicly available on PACER since Sept. 3, 2019. The Defendant, therefore, had ample opportunity to investigate and peruse the Agreement between February 2020--when it was informed of the prior case and the publicly available Agreement via the Complaint--and the scheduling deadline of June 4, 2021. This record does not demonstrate the level of diligence necessary to satisfy Rule 16(b), Judge Chambers holds. Judge Chambers also notes that the Plaintiffs assert that the Defendant has made no discovery requests of them, and no discovery requests appear on the Court's record of filings for the case. It appears that the Defendant took 29 months to analyze two publicly filed documents, which were cited in the Complaint. Judge Chambers opines that this timeline does not demonstrate reasonable diligence in attempting to adhere to the pretrial schedule. The Defendant, therefore, has not satisfied Rule 16(b)'s good cause standard and may not have leave to amend its Answer. Because Rule 16(b)'s good cause standard for amending pleadings has not been satisfied, the Court denies the Defendant leave to file an amended answer asserting an arbitration and class waiver defense. The Court directs the Clerk to send a copy of this Order to counsel of record and any unrepresented parties. A full-text copy of the Court's Memorandum Opinion and Order dated Sept. 8, 2022, is available at https://tinyurl.com/2fm587t9 from Leagle.com. CONAGRA BRANDS: Court Grants Bid to Dismiss Wienhoff Consumer Suit ------------------------------------------------------------------ Chief District Judge Nancy J. Rosenstengel of the U.S. District Court for the Southern District of Illinois grants the Defendant's motion to dismiss the class action lawsuit styled BARBARA WIENHOFF, Individually, and on Behalf of All Others Similarly Situated, Plaintiff v. CONAGRA BRANDS, INC., Defendant, Case No. 21-CV-00501-NJR (S.D. Ill.). Ms. Wienhoff alleges that Conagra manufactures, labels, and sells pudding. On the front label, Conagra includes the words "Pudding," "NEW SMOOTHER RECIPE!," and "Made With Real Milk." The top of the pudding package also states, "Made with Real Milk" with an asterisk and four checkmarks: 0g of Trans Fat Per Serving, NO Artificial Growth Hormones Used!, NO High Fructose Corn Syrup, and NO Preservatives. Beneath the checkmarks, another statement with an asterisk says "*Made With Nonfat Milk." The pudding package also contains an ingredients list. Wienhoff notes the fine print of the ingredient list identifies 'Nonfat Milk' as the second most predominant ingredient, after water. Ms. Wienhoff purchased the pudding on at least one occasion at Dollar General in Hamel, Illinois. She bought the pudding because she expected a pudding product touted as 'Made With Real Milk' and having a 'Smoother' taste meant it would have whole milk, a source of milkfat. She alleges that in the context of a pudding product, consumers will interpret 'real milk' to mean 'whole milk.' She asserts the representations of 'Real Milk' give consumers the impression that the pudding's fat content will come exclusively or predominantly from milkfat. According to Ms. Wienhoff, consumers are misled because none of the pudding's fat content is from milkfat. She then alleges it is false and misleading to consumers to highlight 'real milk' when its most significant part--milkfat--is replaced with palm oil, a cheaper and nutritionally inferior ingredient. Ms. Wienhoff brings a class action against Conagra with the following claims: (1) Violation of the Illinois Consumer Fraud and Deceptive Business Practice Act ("ICFA"); (2) Breaches of Express Warranty, Implied Warranty of Merchantability, and Magnuson Moss Warrant Act, 15 U.S.C. Section 2301 ("MMWA"); (3) Negligent Misrepresentation; (4) Fraud; and (5) Unjust Enrichment. Conagra timely moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Court has subject matter jurisdiction over this action pursuant to the Class Action Fairness Act ("CAFA"). Wienhoff alleges diversity exists because she seeks to represent a class of persons, who include citizens of different states from the Defendant. Ms. Wienhoff defines the class as "all purchasers of the Product who reside in Illinois, Florida, Texas, Ohio, Indiana, Iowa, Minnesota, Michigan and Wisconsin, during the applicable statutes of limitations." Judge Rosenstengel notes that it is reasonable to infer that this class includes more than 100 people based on the alleged sale price of the pudding ($1.79 for the pack of pudding), and Conagra's alleged annual sales of the pudding exceeded $5 million during the applicable statutes of limitations. Wienhoff does not explain how Conagra's sales translate to damages, alleging only that she paid more for the pudding than it was worth. Nonetheless, Conagra has not challenged that there is at least $5 million in controversy. Thus, for purposes of this Motion, the Court concludes Wienhoff has properly alleged subject matter jurisdiction. I. Standing to Pursue Injunctive Relief There is a split of authority on the question of whether consumer plaintiffs claiming only that they were deceived can pursue injunctive relief when they are aware of the deceptive practice at issue, Judge Rosenstengel notes, citing In re Herbal Supplements Mktg. and Sales Practices Litig., 2017 WL 2215025, at *7 (N.D. Ill. 2017). Here, Judge Rosenstengel finds the split favors Conagra. Wienhoff cites Leiner v. Johnson & Johnson Consumer Companies, Inc., 215 F.Supp.3d 670, 673 (N.D. Ill. 2016), for the notion that even where a plaintiff is unlikely to purchase a product again, he or she can maintain standing for injunctive relief. But, Judge Rosenstengel holds, the court in Leiner relied on cases from the Eastern District of New York, Central District of California, and Northern District of California--non-binding authority. Judge Rosenstengel finds that based on Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732 (7th Cir. 2014), Wienhoff, who is already aware of the Conagra's allegedly deceptive sales practices, lacks standing to obtain injunctive relief. II. Count I - ICFA Claim Conagra argues courts have dismissed other analogous "made with real" labeling suits because they defy common sense and reasonable consumers' everyday experiences. Conagra also throws around the phrase "reasonable consumer" numerous times throughout its motion, but the reasonable consumer standard requires a practical and fact-intensive approach to consumer behavior. Unlike the deceptive advertising cases that survive dismissal--where the words in defendants' labels were subject to different plausible interpretations--Wienhoff reads "Made With Real Milk" and "Smoother" and jumps to the conclusion that the pudding must include whole milk--and thus must include milkfat. This interpretation of Conagra's label is fanciful, Judge Rosenstengel holds. Similar to the plaintiff's theory in Red v. Kraft Foods, Inc., 2012 WL 5504011, at *3 (C.D. Cal. Oct. 25, 2012), Wienhoff is alleging that Conagra's packaging suggests that the pudding is more nutritious and contains a significant amount of milkfat because it says, "Made with Real Milk" and depicts a bottle of overflowing milk, Judge Rosenstengel notes. But similar to how it was unreasonable for the plaintiff in Red to be deceived into thinking a box of crackers contains huge amounts of vegetables--it is fanciful that reasonable consumers will be deceived into thinking that pudding contains a significant amount of milkfat, Judge Rosenstengel points out. Because her interpretation of Conagra's label is fanciful, Wienhoff's ICFA claim must be dismissed, Judge Rosenstengel holds. III. Count II - Breach of Warranty Claims Ms. Wienhoff also alleges that the pudding was manufactured, labeled and sold by Conagra and expressly and impliedly warranted to plaintiff and class members that it contained whole milk and milkfat, instead of non-nutritive vegetable fats. Judge Rosenstengel opines that the problem is Wienhoff relies on a fanciful interpretation of Conagra's pudding label as discussed. Even if the Court found that Wienhoff had a reasonable interpretation of Conagra's label, her warranty claims also fail. Conagra argues the Complaint unequivocally discloses that Wienhoff was not in privity with Conagra. Wienhoff responds that the privity inquiry is fact-intensive and inappropriate at the motion to dismiss stage. Wienhoff also argues that she satisfies the "direct relationship" exception to strict privity because her allegations show that Conagra's marketing was based on its awareness that this factor would, and did, appeal to parents seeking snacks beneficial for their children's development. Judge Rosenstengel finds that Wienhoff has not pled a sufficient basis to state a claim for privity. Wienhoff relies on two conclusory allegations: "Snack Pack pudding is consistently voted by parents as one of the key ingredients to their children's lunch boxes, and a regular snack," and "[p]udding is a food intended for children, whose nutritional development is enhanced." Because Wienhoff was not in privity with Conagra, Conagra's Motion to Dismiss is granted as to Wienhoff's warranty claims. Even if Wienhoff sufficiently alleged privity, Judge Rosenstengel explains, her claims premised on breaches of warranty fail for lack of pre-suit notice. Conagra correctly points out that "Illinois law requires that 'a buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.'" Ms. Wienhoff argues that notice is not required because Conagra knew about the pudding's composition and conceded the point on its motion to dismiss. Judge Rosenstengel opines that the problem is a "seller must know more than just the facts constituting the breach; the seller must know of the buyer's claims that those facts constitute a breach." Thus, Conagra's knowledge of its own ingredients does not constitute actual knowledge of the defect. Ms. Wienhoff also argues that the filing of the complaint satisfies the notice requirement. The Illinois Supreme Court has found, however, that only a consumer plaintiff, who suffers a personal injury may satisfy the section 2-607 notice requirement by filing a complaint stating a breach of warranty action against the seller." Judge Rosenstengel points out that Wienhoff claims only economic loss--so filing a complaint does not satisfy the notice requirement. Judge Rosenstengel holds that Wienhoff's MMWA claim must be dismissed for lack of jurisdiction. Wienhoff has not named any plaintiffs besides herself. Because the state-law warranty claims fail, Wienhoff's MMWA claim fails, Judge Rosenstengel adds. Finally, even if the Court has jurisdiction and the state-law warranty claims survive, the MMWA claim must still be dismissed because the phrases "Made with Real Milk" and "Smoother" are descriptions of Conagra's pudding, Judge Rosenstengel says. These descriptions do not warrant that the pudding is defect free or will meet a specified level of performance over a specified period of time. IV. Count III - Negligent Misrepresentation Claim Judge Rosenstengel finds that Wienhoff's negligent misrepresentation claim is barred by the "Moorman doctrine," Moorman Mfg. Co. v. Nat'l Tank Co., 435 N.E.2d 443, 452 (Ill. 1982). The Moorman doctrine is intended to preserve the distinction between tort and contract. Because Wienhoff seeks relief for disappointed commercial expectations--her negligent misrepresentation claim is barred by the Moorman doctrine. Ms. Wienhoff responds that her negligent misrepresentation claim is not barred because she meets one of the exceptions to the Moorman doctrine: "where one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations." Judge Rosenstengel opines that the problem is this exception applies only when the entity is in the business of supplying information. Here, Judge Rosenstengel observes, Conagra is not in the business of supplying information, but is in the business of providing something tangible--pudding. Accordingly, an exception to the Moorman doctrine does not apply, and Conagra's Motion to Dismiss is granted as to Wienhoff's negligent misrepresentation claim. V. Count IV - Fraud Claim Judge Rosenstengel holds that Wienhoff's fraud claim fails from the start because she has not plausibly alleged that Conagra's pudding label contained a false statement. Indeed, her allegations are merely a fanciful interpretation of Conagra's pudding label. Even if the Court found that Wienhoff had a reasonable interpretation, her fraud claim further fails because her allegations are insufficient to support scienter, Judge Rosenstengel explains. Wienhoff merely alleges that Conagra's fraudulent intent is evinced by knowledge that it replaced milkfat with palm oil, evinced by the asterisk which is difficult for consumers like her to notice. The Court need not accept this conclusory allegation. Accordingly, Wienhoff's fraud claim must be dismissed. VI. Count V - Unjust Enrichment Claim Under Illinois law, unjust enrichment is not a separate cause of action; Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 447 (7th Cir. 2011). Instead, Illinois courts describe it as a condition that may be brought about by unlawful or improper conduct as defined by law, such as fraud, duress or undue influence. The request for relief based on unjust enrichment is, therefore, tied to the fate of the ICFA claim, Judge Rosenstengel opines. Because Wienhoff failed to state a claim under the ICFA, Judge Rosenstengel holds that she also failed to state a claim for unjust enrichment. For these reasons, the Motion to Dismiss filed by Conagra Brands, Inc., is granted. The Court dismisses Wienhoff's claims against Conagra without prejudice. Wienhoff had until Sept. 22, 2022, to file a First Amended Complaint consistent with Rule 11. A full-text copy of the Court's Memorandum and Order dated Sept. 8, 2022, is available at https://tinyurl.com/mpcdyckd from Leagle.com. CORNERSTONE NATIONAL: Johnson Sues Over Improper Disclosure of PII ------------------------------------------------------------------ William Johnson and Joshua Kirk, individually and on behalf of all others similarly situated v. Cornerstone National Insurance Company, Case No. 2:22-cv-04135-WJE (W.D. Mo., Sept. 14, 2022), is brought against the Defendant as a result of Defendant's failure to provide reasonable and adequate data security, and the Defendant violation of state and federal law by improperly disclosing Plaintiffs' and the Class Members' valuable personal information ("PI")--including their especially sensitive driver's license numbers and the names used to identify them—to unauthorized parties and/or entities. The Defendant "values you as a customer and we understand that your privacy is important." And the Defendant promises it does "not disclose any nonpublic personal information about our customers or former customers to anyone," except as permitted by law. Yet, the Defendant intentionally configured and designed their online agent insurance quoting platform to generate responses to requests for insurance quotes that included personal information from motor vehicle records that was obtained from third- party data providers. If not for Defendant's intentional and knowing configuration and design of its systems, Plaintiffs' and Class Members' PI would not have been disclosed to cyber criminals. The Defendant failed to meet its promises and its obligation to protect the sensitive personal information it collected, maintained, and used. Despite knowing that driver's license information is highly sensitive and legally restricted as a result of the Driver's Privacy Protection Act ("DPPA"), the Defendant failed to secure this highly sensitive information collected from applications, customers, and its online life insurance registered agent platform, thereby making it public without consent and in violation of its own corporate promises and policy. As a direct result of Defendant's acts and/or omissions, the unauthorized parties are already attempting to use the improperly disclosed information to commit identity theft and fraudulently open financial accounts in Plaintiffs' names. Plaintiff Joshua Kirk has already had two incidents of fraud that happened after the breach but before Cornerstone notified him. All Plaintiffs and Class Members are now at much higher risk of continued identity theft and for cybercrimes of all kinds, especially considering the highly valuable and sought-after private PI stolen here, and have suffered damages related to lost time, loss of privacy, and other harms, says the complaint. The Plaintiffs received notice via U.S. mail from the Defendant that it improperly exposed their PI to unauthorized third parties on August 4, 2022. The Defendant provides automobile and homeowner's insurance to customers in multiple states throughout the country.[BN] The Plaintiffs are represented by: Norman E. Siegel, Esq. Benjamin J. Stueve, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, Missouri 64112 Phone: (816) 714-7100 Facsimile: (816) 714-7101 Email: siegel@stuevesiegel.com ben.stueve@stuevesiegel.com - and - Kate M. Baxter-Kauf, Esq. Karen H. Riebel, Esq. Mauren Kane Berg, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401-2159 Phone: (612) 339-6900 Facsimile: (612) 339-0981 Email: kmbaxter-kauf@locklaw.com khriebel@locklaw.com mkberg@locklaw.com - and - Gayle M. Blatt, Esq. P. Camille Guerra, Esq. CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD, LLP 110 Laurel Street San Diego, CA 92101 Phone: (619) 238-1811 Facsimile: (619) 544-9232 Email: gmb@cglaw.com camille@cglaw.com COSTCO WHOLESALE: Zortea Suit Removed to W.D. Pennsylvania ---------------------------------------------------------- The case styled as Monica Zortea, individually and on behalf of all others similarly situated v. Costco Wholesale Corp., Case No. GD-22-009299 was removed from the Allegheny County, to the U.S. District Court for Western District of Pennsylvania on Sept. 14, 2022. The District Court Clerk assigned Case No. 2:22-cv-01316-MJH to the proceeding. The nature of suit is stated as Other Personal Property. Costco Wholesale Corporation -- https://www.costco.com/ -- is an American multinational corporation which operates a chain of membership-only big-box retail stores.[BN] The Plaintiff is represented by: Chandler Steiger, Esq. Kevin Abramowicz, Esq. Kevin W. Tucker, Esq. Stephanie Moore, Esq. EAST END TRIAL GROUP 6901 Lynn Way, Suite 215 Pittsburgh, PA 15208 Phone: (717) 491-9162 Email: csteiger@eastendtrialgroup.com kabramowicz@eastendtrialgroup.com ktucker@eastendtrialgroup.com smoore@eastendtrialgroup.com - and - Edwin J. Kilpela, Esq. Elizabeth Pollock-Avery, Esq. Kenneth A. Held, Esq. LYNCH CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Phone: (412) 322-9243 Email: ekilpela@lcllp.com elizabeth@lcllp.com ken@lcllp.com - and - John G. Papianou, Esq. MONTGOMERY MCCRACKEN WALKER & RHOADS, LLP 1735 Market Street Philadelphia, PA 19103 Phone: (215) 772-7389 Fax: (215) 731-3636 Email: jpapianou@mmwr.com CREASONS FINE ART: Senior Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Creasons Fine Art & Supplies Inc. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Creasons Fine Art & Supplies Inc., Case No. 1:22-cv-07783-KPF (S.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Creasons Fine Art & Supplies Inc. -- http://creasonsfineartgallery.com/-- is a contrariety art gallery with the works of local artist Greg Creason who also provide for the local and tourist alike, an art supply and printing service.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal CREDIT CONTROL: Klein Sues Over Unfair Collection of Debt --------------------------------------------------------- Stephanie Klein, on behalf of herself and all others similarly situated v. CREDIT CONTROL, LLC, UHG I LLC, and UNITED HOLDING GROUP, LLC, Case No. 22-004377-CI (Fla. 6th Judicial Ct., Pinellas Cty., Sept. 9, 2022), is brought against the Defendants for damages under the Fair Debt Collection Practices Act and the Florida Consumer Collections Practices Act, as a result of the Defendant's abusive, deceptive, unfair, and unlawful means in its attempts to collect the alleged debt and other alleged debts. The Defendant alleges that Plaintiff owes a debt (the "alleged debt"). Defendants allege the alleged debt arose from a debt originally owed to Mid America Bank and Trust, in the amount of $796.63. the Defendants allege, at some point, the alleged debt was sold, transferred, or assigned to UHG. At the time the alleged debt was sold, assigned, or otherwise transferred to UHG for collection, the alleged debt was in default. The Plaintiff is led to be confused as to who the debt is owed to. In its efforts to collect the alleged debt, Credit Control decided to contact the Plaintiff by written correspondence. Rather than preparing and mailing such written correspondence to the Plaintiff on its own, Credit Control decided to utilize a third-party vendor to perform such activities on its behalf. As part of its utilization of the third-party vendor, Credit Control conveyed information regarding the alleged debt to the third-party vendor. The information conveyed by Credit Control to the third-party vendor included the Plaintiff’s status as a debtor, the precise amount of the alleged debt, the entity to which Plaintiff allegedly owed the debt, and the fact that the alleged debt concerned a defaulted debt of the Plaintiff. The Plaintiff did not provide prior consent to the sharing of the Plaintiff's information with third-parties. The Plaintiff did not provide her prior consent to the sharing of her information with the third-party letter vendor Credit Control chose to convey information to regarding the alleged debt as part of its collection efforts. The Plaintiff did not provide prior consent to the sharing of her information with any third-party. The Defendants' intentional or negligent conduct of sharing, transferring, or communicating of the Plaintiff's personal and sensitive information without the Plaintiff's prior consent, caused an invasion into Plaintiff's individual privacy, which caused the Plaintiff concern, embarrassment, anxiety, worry, sleeplessness, and emotional distress, causing the Plaintiff to spend time to retain counsel, causing him loss of time, says the complaint. The Plaintiff is a natural person allegedly obligated to pay a debt. Credit Control is regularly engaged, for profit, in the collection of debts allegedly owed by consumers.[BN] The Plaintiff is represented by: Jason Tenenbaum, Esq. TENENBAUM LAW GROUP, PLLC 1600 Ponce De Leon Blvd., 10th Floor Coral Gables, FL 33134 Phone: (305) 402-9529 Fax: (786) 292-1948 DANE FINE ART: Senior Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Dane Fine Art, LLC. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Dane Fine Art, LLC, Case No. 1:22-cv-07784 (S.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Dane Fine Art -- https://www.danefineart.com/ -- sell and buy fine art, modern art, pop art, and contemporary arts and paintings by arranging auctions in Philadelphia.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal DAYTONA INTERNATIONAL: Ortiz Files ADA Suit in W.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Daytona International Speedway, LLC. The case is styled as Joseph Ortiz, on behalf of himself and all other persons similarly situated v. Daytona International Speedway, LLC, Case No. 1:22-cv-00691 (W.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Daytona International Speedway -- https://www.daytonainternationalspeedway.com/ -- is a race track in Daytona Beach, Florida.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: jeffrey@gottlieb.legal - and - Michael A. LaBollita, Esq. GOTTFRIED & GOTTFRIED, LLP 122 East 42nd. St., Suite 620 New York, NY 10168 Phone: (212) 228-9795 Email: michael@gottlieb.legal DE SOI INC: Bunting Files ADA Suit in E.D. New York --------------------------------------------------- A class action lawsuit has been filed against De Soi Inc. The case is styled as Rasheta Bunting, individually and as the representative of a class of similarly situated persons v. De Soi Inc., Case No. 1:22-cv-05479 (E.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. De Soi -- https://drinkdesoi.com/ -- is a range of non-alcoholic aperitifs made with natural adaptogens founded by Katy Perry and Morgan McLachlan.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com DELTA GROUP ELECTRONICS: McCombs Files Suit in D. New Mexico ------------------------------------------------------------ A class action lawsuit has been filed against Delta Group Electronics, Inc. The case is styled as Eveline McCombs, individually, and on behalf of all others similarly situated v. Delta Group Electronics, Inc., Case No. 1:22-cv-00662-JFR-KK (D.N.M., Sept. 9, 2022). The nature of suit is stated as Other Personal Injury for Tort/Non-Motor Vehicle. Delta Group Electronics Inc. -- https://www.deltagroupinc.com/ -- provides manufacturing services for electronic equipment.[BN] The Plaintiff is represented by: Cody Alexander Bolce, Esq. COLE & VAN NOTE 555 12th Street, Suite 1725 Oakland, CA 94607 Phone: (510) 891-9800 Fax: (510) 891-7030 Email: cab@colevannote.com DOTC DELIVERY: Faces Erazo Wage-and-Hour Suit in E.D.N.Y. --------------------------------------------------------- CATHERINE ERAZO, individually and on behalf of all others similarly situated, Plaintiff v. DOTC DELIVERY LLC, Defendant, Case No. 526602/2022 (E.D.N.Y., September 13, 2022) is a class action against the Defendant for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay overtime wages, failure to provide accurate wage statements, and failure to provide wage notices. Ms. Erazo was employed by the Defendant as a delivery associate from approximately April 2020 to September 2020. DOTC Delivery LLC is a provider of delivery services based in New York. [BN] The Plaintiff is represented by: Molly Brooks, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 - and - Pooja Shethji, Esq. 1225 New York Avenue NW, Suite 1200B Washington, DC 20005 Telephone: (202) 847-4400 Facsimile: (202) 847-4410 ELECTRONIC MERCHANT: Newman Files TCPA Suit in N.D. Ohio -------------------------------------------------------- A class action lawsuit has been filed against Electronic Merchant Systems, LLC. The case is styled as Edward G. Newman, Jr., individually and on behalf of all others similarly situated v. Electronic Merchant Systems, LLC, Case No. 1:22-cv-01631-PAG (N.D. Ohio, Sept. 14, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Electronic Merchant Systems, LLC -- https://www.emscorporate.com/ -- provides transaction management systems. The Company offers payment processing, POS terminals, and additional services.[BN] The Plaintiff is represented by: Brian T Giles, Esq. THE LAW OFFICES OF BRIAN T. GILES, LLC 1470 Apple Hill Rd Cincinnati, OH 45230 Phone: (513) 379-2715 Email: brian@gilesfirm.com EOG RESOURCES: Kimble Sues to Recover Unpaid Overtime Wages ----------------------------------------------------------- Steven Kimble, individually and for others similarly situated v. EOG RESOURCES, INC., Case No. 2:22-cv-00674-KRS-GJF (D.N.M., Sept. 13, 2022), is brought to recover unpaid overtime wages and other damages from the Defendant under the Fair Labor Standards Act and the New Mexico Minimum Wage Act. The Plaintiff and the other workers like him regularly worked for EOG in excess of 40 hours each week. But these workers never received overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying overtime as required by the FLSA and NMMWA, EOG paid these workers a daily rate with no overtime pay. This collective action seeks to recover the unpaid overtime wages and other damages owed to these workers, says the complaint. The Plaintiff worked for the Defendant as a Water Transfer Consultant from September 2019 through October 2020. EOG is an oil and gas exploration and production company with operations throughout the United States.[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 EQUIFAX INFORMATION: Stovall Suit Moved From Nevada to N.D. Georgia ------------------------------------------------------------------- Judge Jennifer A. Dorsey of the U.S. District Court for the District of Nevada transfers the case, AMANDA STOVALL, individually and on behalf of all others similarly situated, Plaintiff v. EQUIFAX INFORMATION SERVICES, LLC, Defendant, Case No. 2:22-cv-01267-JAD-DJA (D. Nev.), to U.S. District Court for the Northern District of Georgia, Atlanta Division, for potential consolidation in In re: Equifax Information Services LLC Fair Credit Reporting Act Litigation, Case No. 1:22-cv-3072-LMM-CCB. The complaint asserts putative class action claims against Equifax that are similar to claims asserted in six other putative class actions pending in the U.S. District Court for the Northern District of Georgia, Atlanta Division. On Aug. 24, 2022, the Court in Jenkins v. Equifax Inc., et al., Case No. 1:22-cv-3072-LMM-CCB granted a request to consolidate the six related actions pending in that Court into one action (the "Consolidated Action," captioned In Re: Equifax Fair Credit Reporting Act Litigation, Case No. 1:22-cv-3072-LMM-CCB). The Plaintiff and Equifax stipulate and agree that the case would also benefit from consolidated in the Consolidated Action. The Court overseeing the Consolidated Action has ordered that "any action subsequently transferred to the Northern District of Georgia that arises out of the same or similar operative facts as the Consolidated Action, will be consolidated with the Consolidated Action for pre-trial purposes." The Plaintiff and Equifax further stipulate and agree that, pursuant to 28 U.S.C. Section 1404(a), for purposes of judicial efficiency and for the convenience of parties and witnesses, the case should be transferred to the U.S. District Court for the Northern District of Georgia, Atlanta Division, for assignment to the Honorable Judge May and consolidation in the Consolidation Action; and They further stipulate and agree that Equifax will have no obligation to answer or otherwise respond to the complaint filed in the case while the Court considers the stipulation to transfer. Pursuant to 28 U.S.C. Section 1404(a), Judge Dorsey orders the Clerk to transfer the action, immediately and in its entirety, to the Northern District of Georgia, Atlanta Division, for assignment to the Honorable Judge May and consolidation in the Consolidated Action (In Re: Equifax Fair Credit Reporting Act Litigation, Case No. 1:22-cv-3072-LMM-CCB). Based on the parties' stipulation and good cause appearing, Judge Dorsey transfer the action under 28 U.S.C. Section 1404(a) to the Northern District of Georgia, Atlanta Division, for potential consolidation in In re: Equifax Information Services LLC Fair Credit Reporting Act Litigation, Case No. 1:22-cv-3072-LMM-CCB. The Clerk of Court is directed to then close the case. A full-text copy of the Court's Sept. 7, 2022 Order is available at https://tinyurl.com/jcuuxyfj from Leagle.com. George Haines, Esq. -- Ghaines@freedomlegalteam.com -- FREEDOM LAW FIRM, Las Vegas, Nevada, Counsel for the Plaintiffs. Michael Kind, Esq. -- mk@kindlaw.com -- KIND LAW, Las Vegas, Nevada. CLARK HILL, LLP, Gia N. Marina -- gmarina@clarkhill.com -- Las Vegas, NV, Attorneys for Defendant Equifax Information Services LLC. EVERYDAY HEALTH: Dicks Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Everyday Health, Inc. The case is styled as Victoria Dicks, on behalf of herself and all others similarly situated v. Everyday Health, Inc. d/b/a BabyCenter, LLC, Case No. 1:22-cv-07875 (S.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Everyday Health, Inc. doing business as BabyCenter -- https://www.babycenter.com/ -- is an online media company based in San Francisco, New York, Chicago, and Los Angeles that provides information on conception, pregnancy, birth, and early childhood development for parents and expecting parents.[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 EXCEL STAFFING: Espinoza Sues to Recover Unpaid Overtime Wages -------------------------------------------------------------- Leroy Espinoza, individually and for others similarly situated v. EXCEL STAFFING COMPANIES, LLC, Case No. 1:22-cv-00670-KK-GBW (D.N.M., Sept. 12, 2022), is brought to recover unpaid overtime wages and other damages from the Defendant under the Fair Labor Standards Act and the New Mexico Minimum Wage 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 ("full overtime") for all hours worked in excess of 40 hours per workweek. Instead of paying overtime as required by the FLSA and NMMWA, the Defendant paid Plaintiff the same hourly rate for all hours worked, including those in excess of 40 in a workweek (paid "straight time for overtime"). This practice violates the overtime requirements of the FLSA and NMMWA, says the complaint. The Plaintiff worked for the Defendant from March 2021 until April 2022 as a Consultant. Excel Staffing Companies is a staffing company that provides recruitment services and personnel to energy and research entities.[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 FANATICS LLC: Any Arbitration Bid in Cavanaugh Suit Due Sept. 29 ---------------------------------------------------------------- In the case, JAKE CAVANAUGH, Plaintiff v. FANATICS, LLC, Defendant, Case No. 1:22-cv-01085-JLT-SAB (E.D. Cal.), Magistrate Judge Staley A. Boone of the U.S. District Court for the Eastern District of California grants in part and denies in part the parties' amended stipulated motion to stay the Defendant's answer to the first amended complaint. The Court directs the Defendant to file any motion to compel arbitration by Sept. 29, 2022. The Plaintiff filed the putative class action in the Superior Court of California for the County of Fresno on May 6, 2022. A first amended complaint was filed in the state court on June 20, 2022. On Aug. 25, 2022, the Defendant removed the action to federal court. The initial scheduling conference is currently set for Nov. 1, 2022. On Aug. 26, 2022, the parties filed a stipulation pursuant to Local Rule 144 extending the deadline for the Defendant to file an answer to the first amended complaint from Sept. 1, 2022 to Sept. 29, 2022. That same day, they also filed a stipulation seeking to stay the Defendant's response to first amended complaint pending resolution of an anticipated, but not yet filed, motion to compel arbitration; the Court construed this filing as a stipulated motion to stay, and denied it as premature. However, the denial was issued without prejudice to refiling of the request once any motion to compel arbitration has been filed. On Sept. 9, 2022, the parties filed an amended stipulation, in which they again seek to continue the deadline to file a response to the complaint, pending a ruling on the Defendant's anticipated motion to compel arbitration. They proffer the Defendant's "forthcoming motion to compel arbitration will be filed by Sept. 29, 2022," and therefore seek an order in which the deadline to respond to the complaint (which currently remains set for Sept. 29, 2022) is extended to 21 days after the Court enters an order on the "forthcoming" motion to compel arbitration, if such a response is still required following that order. They further proffer that the stay is appropriate because some courts do not construe a motion to compel arbitration as a sufficient response to the complaint, and they seek to promote efficiency and conserve resources. Judge Boone agrees that the parties' intended approach would promote efficiency and conserve resources and it is inclined to stay the litigation pending a ruling on any motion to compel arbitration, if and when such a motion is filed. However, a request to stay litigation pending a ruling on a motion that has not yet been filed with the Court -- and which the Court cannot presume will be filed on a certain date based solely on the parties' say so -- remains premature. However, in the interest of judicial efficiency, he will grant in part and deny in part the parties', once again, premature stipulated request. Accordingly, Judge Boone grants in part and denies in part the parties' amended stipulated motion to stay the Defendant's answer to the first amended complaint until 21 days after the Court enters a ruling on the parties' anticipated motion to compel arbitration, as follows: 1. The Defendant will file any motion to compel arbitration by Sept. 29, 2022; 2. The deadline to file a response to the complaint is extended to Oct. 20, 2022; and 3. If the Defendant files a motion to compel arbitration on Sept. 29, 2022, it may concurrently seek to stay the responsive pleading deadline for 21 days after a ruling on the pending motion to compel arbitration, and the Court is inclined to grant such request and stay the responsive pleading deadline at that time. A full-text copy of the Court's Sept. 9, 2022 Order is available at https://tinyurl.com/c9v5e9rm from Leagle.com. FIFTH LABOR: Chavez Sues Over Unpaid Overtime Wages --------------------------------------------------- Juanita Paulina Chavez, individually and on behalf of others similarly situated v. THE FIFTH LABOR, LLC, a New York limited liability company, and ANTHONY RHODES, an individual, Case No. 1:22-cv-07781 (S.D.N.Y., Sept. 12, 2022), is brought for unpaid overtime wages pursuant to the Fair Labor Standards Act of 1938, for violations of the N.Y. Labor Law, and for violations of the "spread of hours" and overtime wage orders of the New York Commissioner of Labor. including applicable liquidated damages, interest, attorneys' fees, and costs. The Plaintiff worked approximately 70 hours per week. The Defendants never granted the Plaintiff a meal break or rest period of any kind. The Defendants failed to pay Plaintiff any overtime premium (time and a half) for hours worked over 40 in each workweek. The Defendants failed to pay the Plaintiff the required "spread of hours" pay for any day in which she worked 10 hours or more. The Defendants intentionally, willfully, and repeatedly harmed the Plaintiff and similarly situated individuals by engaging in an employment pattern, practice, and/or policy of violating the FLSA and the NYLL, says the complaint, The Plaintiff was employed by the Defendants for 2 years, from November 2020 through August 15, 2022 to perform janitorial services. The Defendant is a cleaning company with a corporate office located in New York City.[BN] The Plaintiff is represented by: Nolan Klein, Esq. LAW OFFICES OF NOLAN KLEIN, P.A. 5550 Glades Rd., Ste. 500 Boca Raton, FL 33431 Phone: (954) 745-0588 Email: klein@nklegal.com amy@nklegal.com melanie@nklegal.com FLAGSTAR BANK: Myers Sues Over Failure to Secure and Safeguard PII ------------------------------------------------------------------ Scott Myers, on behalf of himself and all others similarly situated v. FLAGSTAR BANK, FSB, Case No. 2:22-cv-12180-DPH-JJCG (W.D. Mich., Sept. 14, 2022), is brought against the Defendant for the Defendant's failure to properly secure and safeguard protected personally identifiable information, including without limitations, names, addresses, financial information, and social security numbers (collectively, "PII"), for failing to comply with industry standards to protect information systems that contain PII, and for failing to provide timely, accurate, and adequate notice to Plaintiff and other Class Members that their PII had been compromised. In the course of doing business with Flagstar, consumers provide their personal information in order to obtain loans or open financial accounts. In turn, Flagstar comes into possession of, and maintains files containing, the PII of its customers. On June 17, 2022, Flagstar notified its customers that their PII that had been stored on Flagstar's systems was exfiltrated by unauthorized third parties (the "Data Breach"). As a result of Flagstar's failure to implement and follow basic security procedures, the Plaintiff's and Class Members' PII is now in the hands of criminals. The Plaintiff and Class Members face a substantial increased risk of identity theft, both currently and for the indefinite future. Consequently, the Plaintiff and Class Members have had to spend, and will continue to spend, significant time and money in the future to protect themselves due to Flagstar's failures, says the complaint. The Plaintiff was a customer of Flagstar, whose PII was disclosed without authorization to unknown third parties as a result of the Data Breach. Flagstar Bank, FSB is a Michigan corporation, with its principal place of business in Troy, Michigan.[BN] The Plaintiff is represented by: Kevin J. Stoops, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, MI 48076 Phone: (248) 355-0300 Email: kstoops@sommerspc.com - and - Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. LYNCH CARPENTER LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Phone: 412-322-9243 Facsimile: 412-231-0246 Email: gary@lcllp.com jamisen@lcllp.com FLOSPORTS: Fiorentino Sues Over Unlawful Disclosure of PII ---------------------------------------------------------- Christopher J. Fiorentino, on behalf of himself and all others similarly situated v. FLOSPORTS, INC., Case No. 1:22-cv-11502 (D. Mass., Sept. 13, 2022), is brought against the Defendant for its violations of the federal Video Privacy Protection Act arising arise from the Defendant's practice of knowingly disclosing to a third party, Meta Platforms, Inc., formerly known as Facebook, Inc., "personally identifiable information" ("PII") about the videos Plaintiff and similarly situated subscribers obtain or request from Defendant's websites and applications (collectively "websites"). The Defendant violates the VPPA by disclosing the specific videos its subscribers have requested or obtained to Facebook. The Defendant discloses this information to Facebook using the "Facebook Pixel" or "Pixel"--a snippet of programming code the Defendant chose to install on its websites that sends information to Facebook. In this case, the information shared with Facebook includes the subscriber's Facebook ID ("FID") coupled with the title of the video that the subscriber watched on the the Defendant website. The Defendant discloses the subscriber's FID and viewing content to Facebook together in a single transaction. Because the subscriber's FID uniquely identifies an individual's Facebook account, Facebook--or any other person--can use the FID to quickly and easily locate, access, and view a particular subscriber's corresponding Facebook profile. In the simplest terms, the Pixel installed by Defendant captures and discloses to Facebook what video a specific subscriber viewed on the the Defendant website. The Plaintiff seeks an order enjoining the Defendant from further unauthorized disclosures of subscribers' PII; awarding liquidated damages in the amount of $2,500 per violation, attorneys' fees, and costs; and granting any other preliminary or equitable relief the Court deems appropriate, says the complaint. The Plaintiff used his Internet-connected devices and web-browsing software installed on those devices to visit and access video content on the Defendant's website. FloSports operates a website in the U.S., accessible from a desktop and mobile device at https://www.FloSports.tv.[BN] The Plaintiff is represented by: C. Andrew Dirksen , Esq. CERA LLP 800 Boylston Street, 16th Floor Boston, MA 02199 Phone: (857) 453-6555 Email: cdirksen@cerallp.com - and - Joseph Henry (Hank) Bates, III, Esq. Lee Lowther, Esq. Courtney E. Ross, Esq. CARNEY BATES & PULLIAM, PLLC 519 W. 7th Street Little Rock, AR 72201 Phone: (501) 312-8500 Email: hbates@cbplaw.com llowther@cbplaw.com cross@cbplaw.com FLYNN RESTAURANT: Degas Files Suit in Cal. Super. Ct. ----------------------------------------------------- A class action lawsuit has been filed against Flynn Restaurant Group, et al. The case is styled as Marcus Degas, Shaniquewa Michelle Sanford, on behalf of themselves and all others similarly situated v. Flynn Restaurant Group, Apple Apple American Group LLC, American Group II LLC, Does 1-50, Case No. 34-2022-00326486-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Sept. 9, 2022). The case type is stated as "Other Employment – Civil Unlimited" Flynn Restaurant Group -- https://www.flynnrestaurantgroup.com/ -- began in 1999 with just 8 Applebee's locations in Seattle and has grown to become the largest restaurant franchisee in the United States.[BN] The Plaintiffs are represented by: Christina Marie Lucio, Esq. FARNAES & LUCIO, APC 2235 Encinitas Blvd., Ste. 210 Encinitas, CA 92024-4357 Phone: 760-942-9433 Fax: 760-452-4421 Email: clucio@farnaeslaw.com FRAMES FOR AMERICA: N.D. Illinois Dismisses Svoboda BIPA Suit ------------------------------------------------------------- Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Defendant's motion to dismiss the lawsuit styled TANYA N. SVOBODA, individually and on behalf of all others similarly situated, Plaintiff v. FRAMES FOR AMERICA, INC., Defendant, Case No. 21 C 5509 (N.D. Ill.). Svoboda filed the putative class action suit, individually and on behalf of all others similarly situated, against Defendant Frames for America, Inc., for violations of the Illinois Biometric Information Privacy Act. Svoboda specifically alleges that Frames has violated BIPA Sections 15(a), 15(b), and 15(d). In response, Frames moves to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Frames is an online eyewear retailer that sells prescription and non-prescription glasses through its website. During the relevant period, Frames offered shoppers a virtual try-on function on its website. This allows a user to "virtually try on" a particular set of frames to see how they might look on the user's face. To use the function, a user must upload a photo of their face to the virtual try-on software. The virtual try-on software scans the image and uses facial geometry obtained from the photographs to place an image of the frames on the photograph of the user's face. In January 2018, Svoboda used the virtual try-on software on Frames' website. She did not consult with a medical professional while using the virtual try-on function, did not request any treatment from Frames, nor did she purchase any glasses from Frames. On Sept. 10, 2021, Svoboda filed suit against Frames in the Circuit Court of Cook County. On Oct. 15, 2021, the case was removed to this Court. On Feb. 1, 2022, Frames filed this Motion to Dismiss. Ms. Svoboda argues that she was not a recipient of any health care service so was not a patient. She argues that she did not receive any health care service because she was not treated by any "trained and licensed professionals." However, Judge Leinenweber opines, prescription lenses, non-prescription sunglasses, and frames meant to hold prescription lenses are all Class 1 medical devices. Both prescription lenses and non-prescription sunglasses maintain or restore physical well-being by correcting or protecting vision. Even if she did not personally consult with any trained or licensed professional, Svoboda would have received a health care service had she purchased glasses from Frames. Ms. Svoboda argues that she was not a patient because she was only using the virtual try-on software to see if she liked the style of the glasses, not in anticipation of any medical care or treatment. However, Svoboda also alleges that the virtual try-on software accurately simulated what she would look like wearing different pairs of glasses. Similar fitting and evaluation services are offered in optometrists' offices when a patient is considering which pair of frames to purchase. Even if Svoboda did not ultimately purchase any frames or glasses, the fitting and evaluation services she received still constituted a health care service, thus, Svoboda was a patient, as she was the recipient of a "various personal service," Judge Leinenweber holds. Thus, the Court finds that in using the virtual try-on software, Svoboda was a patient receiving a health care service in a health care setting. Therefore, BIPA's health care exemption applies, and Frames cannot be held liable under BIPA for its collection and use of Svoboda's biometric identifiers or information. For the reasons set forth, Frames' Motion to Dismiss the Amended Class Action Complaint is granted. A full-text copy of the Court's Memorandum Opinion and Order dated Sept. 8, 2022, is available at https://tinyurl.com/42t58zk3 from Leagle.com. FREY BROTHERS: Mitchell Files TCPA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Frey Brothers, Inc. The case is styled as Lakela Mitchell, individually and on behalf of all others similarly situated v. Frey Brothers, Inc., Case No. 1:22-cv-07878 (S.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Frey Brothers, Inc. -- http://www.freybrothersinc.com/-- is a family owned business located in Southern Lancaster County, Pennsylvania.[BN] The Plaintiff is represented by: Andrew Shamis, Esq. SHAMIS & GENTILE, PA 14 NE 1st Ave., Suite 705 Miami, FL 33132 Phone: (305) 479-2299 Fax: (786) 623-0915 Email: ashamis@sflinjuryattorneys.com GERALD SHAPIRO: Williams Sues Over ERISA Violation -------------------------------------------------- Eboni Williams, Debbie Shoemaker, Paula Mays, Tina Kovelesky, and Shadrin Herring, as representatives of a class of similarly situated persons, and on behalf of the A360, Inc. Profit Sharing Plan, formerly known as the A360, Inc. Employee Stock Ownership Plan v. GERALD SHAPIRO, SCOTT BRINKLEY, JAMIE ZELVIN, ARGENT TRUST COMPANY, A360 HOLDINGS LLC, AND JOHN AND JANE DOES 1-10, Case No. 1:22-cv-04868 (N.D. Ill., Sept. 9, 2022), is brought pursuant to the Employee Retirement Income Security Act to remedy the Defendants' unlawful conduct and obtain compensatory and equitable relief for the ESOP and its participants as a result of the Defendants causing the ESOP to be terminated and its "unallocated" shares to be redeemed by the company for less than fair market value. The ESOP acquisition was 100% financed. The employees and the ESOP did not have $30 million in cash to buy the company. Instead, the ESOP was structured as a long-term retirement investment whereby individual employees would earn new shares each year over a period of 50 years by paying off more of the ESOP’s purchase loan through retirement contributions. This is a common structure to motivate and compensate employees by giving them the immediate benefits of ownership and allowing their stakes to increase over time. In ESOP parlance, shares pending re-payment are called "unallocated" shares, and shares released to individual employees after each re payment are called "allocated" shares. In theory, ESOP participants would accumulate more allocated shares over time with their retirement plan contributions, and then sell their shares upon retirement for a nice nest egg. Employees never got to see their allocated shares accumulate over time. By September 2019, A360 had surged in value, alongside explosive growth throughout the "fintech" and "legal tech" sectors. Outside investors saw great potential in companies like A360 that provide technology solutions to the financial and legal services industries. Investors competed to acquire assets and pursue growth strategies in these sectors, and valuations rose accordingly. By the spring of 2019, Defendants Shapiro, Brinkley, and Zelvin were aware of the hot market and obtained a valuation as high as $85 million or $85 per share. Rather than allow employees to enjoy their benefit, as owners, of the company’s surge in value, the board teamed with outside investors (through A360 Holdco) to take the company back from the ESOP for less than it was worth. Defendant Argent, the ESOP’s supposed independent trustee, authorized the seizure. ESOP participants lost out on around $35.4 million due to Defendants' scheme, which was implemented through a series of related, concurrent transactions. On September 12, 2019, the board and Argent caused participants’ allocated shares (117,147 shares) to be sold to A360 Holdco based on a final valuation of around $70 per share, yielding around $8.3 million for employees. The key to the scheme, however, was the next part of the deal, the redemption of the unallocated shares. Defendants caused the company to redeem the ESOP's unallocated shares (882,853 shares) for only the amount due on the purchase loan, $26.3 million or around $30 per share, even though the unallocated shares were worth the same $70 per share as the allocated shares. Defendants thus seized the company from the ESOP for total consideration of around $34.6 million, shorting the ESOP by at least $35.4 million. The Defendants' seizure of the ESOP's unallocated shares for less than fair value violated ERISA. While the abbreviated life of the ESOP meant that the ESOP had a large debt to repay, which reduced the net proceeds due to employees, the ESOP owed no more than its debt. The Defendants' actions also violated ERISA because the purpose and effect of the disposition transactions was to obtain a windfall for Defendants Shapiro and Brinkley and the A360 Holdco investor group. Due to the Defendants' actions, Plaintiffs' proceeds of the disposition of the ESOP's stock were substantially lower than they should have been, says the complaint. Plaintiffs participated in the ESOP as A360 employees. Shapiro was an A360 board member and as such acted on behalf of the company in its capacity as the ESOP administrator.[BN] The Plaintiff is represented by: Robert E. Harrington III, Esq. DUNN HARRINGTON LLC 22 W. Washington St., Suite 1500 Chicago, IL 60602-4086 Phone: (312) 548-7221 Email: reh@dunnharrington.com - and - Jennifer K. Lee, Esq. Carl F. Engstrom, Esq. ENGSTROM LEE MCDONOUGH THOMPSON & THOMSON LLC 1330 Lagoon Ave, 4th Fl Minneapolis, MN 55408 Phone: 612-699-4703 Email: jlee@engstromlee.com cengstrom@engstromlee.com - and - Paul J. Lukas, Esq. NICHOLS KASTER, PLLP 4700 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Phone: (612) 256-3200 Facsimile: 612-338-4878 Email: lukas@nka.com - and - Brandon J. Hill, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Avenue, Suite 300 Tampa, FL 33602 Phone: (813) 337-7992 Fax: (813) 229-8712 Email: bhill@wfclaw.com - and - Marc R. Edelman, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Phone: 813-223-5505 Fax: 813-257-0572 Email: MEdelman@forthepeople.com GERDAU AMERISTEEL: Molla Sues Over Breach of Fiduciary Duties ------------------------------------------------------------- GRANT MOLLA, on behalf of the Gerdau Ameristeel US 401(k) Retirement Plan, himself, and all others similarly situated v. GERDAU AMERISTEEL US, INC., and the GERDAU BENEFITS PLANS ADMINISTRATIVE COMMITTEE, Case No. 8:22-cv-02094 (M.D. Fla., Sept. 9, 2022), is brought against the Defendants for breaching their fiduciary duties in violation of the Employee Retirement Income Security Act. As of December 31, 2020, the Plan had $654,997,677 in assets and 4,291 total participants with account balances as of the end of the plan year. Instead of leveraging the Plan’s tremendous bargaining power to benefit participants and beneficiaries, the Defendants caused the Plan to pay unreasonable and excessive fees for recordkeeping and other administrative services. The Plaintiff has standing to bring this action on behalf of the Plan because the Plaintiff participated in the Plan and was injured by the Defendants’ unlawful conduct. Plaintiff is entitled to receive benefits in the amount of the difference between the value of his account currently, or as of the time his account was distributed (no such distribution has occurred), and what his accounts are or would have been worth, but for Defendants’ breaches of fiduciary duty. The Plaintiff has drawn reasonable inferences regarding these processes based on factors. The Defendants did not adhere to fiduciary best practices to control Plan fees and expenses. To the extent that the Defendants made any prudent attempt to control the Plan’s expenses and to ensure the expenses were not excessive, the Defendants employed flawed and ineffective processes, which failed to ensure that: (a) the fees and expenses charged to Plan participants were reasonable, and (b) that the compensation third-party service providers received from the plan for services provided were reasonable. The Defendants’ mismanagement of the Plan constitutes a breach of the fiduciary duty of prudence in violation of the ERISA. The Defendants’ actions (and omissions) were contrary to actions of a reasonable fiduciary and cost the Plan and its participants millions of dollars, says the complaint. The Plaintiff is a Plan participant. The Gerdau Corporate Defendant is the Plan Sponsor and a fiduciary of the Plan within the meaning of ERISA.[BN] The Plaintiff is represented by: Brandon J. Hill, Esq. Luis A. Cabassa, Esq. Amanda E Heystek, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Avenue, Suite 300 Tampa, FL 33602 Phone: (813) 337-7992 Fax: (813) 229-8712 Email: bhill@wfclaw.com lcabassa@wfclaw.com gnichols@wfclaw.com - and - Marc R. Edelman, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Phone: 813-223-5505 Fax: 813-257-0572 Email: MEdelman@forthepeople.com GERMAN SPECIALTY: Dicks Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against German Specialty Imports, LLC. The case is styled as Victoria Dicks, on behalf of herself and all others similarly situated v. German Specialty Imports, LLC, Case No. 1:22-cv-07706 (S.D.N.Y., Sept. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. German Specialty Imports -- https://germanspecialtyimport.com/ -- is in the Gift Shop business.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com GIBSON COUNTY, IN: Sued Over Animal Control Ordinance Violations ---------------------------------------------------------------- Andrea Howe, writing for The Princeton Clarion, reports that ACLU of Indiana is seeking certification of a class action suit against the county and Gibson County Animal Services in a complain regarding how a person can challenge warnings or citations issued by Gibson County Animal Services. The complaint was filed in U.S. Southern District Federal Court on Sept. 12 by ACLU on behalf of Kendra Owen, Sheila and Kenneth Jackson and others. According to the complaint, the Jacksons were cited in May for allegedly allowing a dog to run at large in violation of the county's animal control ordinance. Their daughter Kendra Owen owned the dog and assumed responsibility for contesting the citation, but according to the suit, the county doesn't allow for a person to contest a citation. The citation, according to the complaint, provides information that persons wishing to dispute validity of a citation can appear at Commissioners Court, but the complaint cites meeting minutes of Gibson County Commissioners from 2018 that confirm the commissioners court no longer exists. In the complaint, Owen reported she contacted Gibson County Animal Services by email and by phone to learn how to dispute the citation and in the phone conversation, was informed there is no dispute. The complaint estimates 103 citations were issued by GCAS from January 2021 to August 2022, based on monthly breakdowns of citations provided by GCAS when Owen sought public records of the citations. The complaint says the county failed to provide a process for a person to contest a citation on or on behalf of GCAS. [GN] GOOGLE LLC: Final Nod Hearing in BIPA Suit Settlement Set Sept. 28 ------------------------------------------------------------------ 5Chicago reports that eligible Illinois residents have less than two weeks left to submit their claims as part of a multi-million dollar settlement in a class-action lawsuit involving Google. The lawsuit, which mirrors one recently settled with Facebook that resulted in many residents receiving checks worth nearly $400 this year, claimed the company violated the Illinois Biometric Information Privacy Act by "collecting and storing biometric data of individuals who, while residing in Illinois, appeared in a photograph in the photograph sharing and storage service known as Google Photos, without proper notice and consent." A settlement agreement was reached in the case earlier this year and now, eligible residents can file their claims. Google did not immediately respond to NBC 5's request for comment, but did not admit any wrongdoing as part of the settlement agreement and denied all claims made in the lawsuit. So how much could eligible residents receive and when? Here's what to know if you're planning to file a claim: Who is eligible? According to the settlement website, residents are eligible "if, at any time between May 1, 2015 and April 25, 2022, you appeared in a photograph in Google Photos while you were an Illinois resident." When can I submit a claim and what is the deadline? Eligible residents can submit a claim now through Sept. 24. All claims must be submitted by that date to be eligible for a payment. For those wishing to object or exclude themselves from the settlement, that deadline was Aug. 10. A final approval hearing is slated for Sept. 28. How do I submit my claim? Those looking to submit a claim can do so here. How much money could I get? Those who are eligible will receive a portion of the $100 million settlement fund, after court fees, costs and expenses are deducted. But how much each person will get remains unclear. "No one knows in advance how much each valid claim payment will be until the deadline for submitting claims passes and the Court awards the Fee and Expense Award and Service Payments," the settlement website states. "Each Class Member who submits a valid claim will receive an equal proportionate share of the Net Settlement Fund." Attorneys in the case estimate, based on their experience and similar cases, that each claim could be worth between $200 and $400. When would I get my payment? If the final approval is granted and any potential appeal process is completed, eligible participants could receive their payments within 90 days. The final approval hearing is set for 10:30 a.m. on Sept. 28. Attorneys warn, however, that even if the court approves the settlement, there may still be appeals in the case. "It is always uncertain whether and when appeals can be resolved, and resolving them can take time," the website states. What is the Illinois Biometric Information Privacy Act? Illinois' Biometric Privacy Act prohibits private sector companies and institutions from collecting biometric data from unsuspecting citizens in the state or online, no matter where the business is based. Data cannot be sold, transferred or traded. Unlike any other state, citizens can sue for alleged violations, which has sparked hundreds of David-and-Goliath legal battles against some of the world's most powerful companies. If a company is found to have violated Illinois law, citizens can collect civil penalties up to $5,000 per violation compounded by the number of people affected and days involved. No state regulatory agency is involved in enforcement. Since BIPA is an Illinois law, it only applies to state residents. Which other companies are being accused of violating the Illinois law? So far, no company associated with the lawsuits surrounding the law has admitted fault, though many have agreed to settlements. Most recently, a federal judge in Illinois granted final approval for a $92 million class-action lawsuit settlement between the social media network TikTok and users of the platform, with Illinois residents set to receive the largest share of the payout due to BIPA. A class-action lawsuit has also been brought against Snapchat's parent company, accusing the social network of violating the act. A $35 million settlement was recently announced in that case, though a final approval hearing still has to take place. Earlier this year, more than one million Illinois Facebook users began receiving checks following a $650 million settlement in a class-action suit alleging it violated residents' rights by collecting and storing digital scans of their faces without permission. Microsoft and Amazon are also among the companies that have been accused of violations. [GN] H.R. MEININGER: Loadholt Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against H.R. Meininger Co. The case is styled as Christopher Loadholt, on behalf of himself and all others similarly situated v. H.R. Meininger Co., Case No. 1:22-cv-07705 (S.D.N.Y., Sept. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. H.R. Meininger Co. -- https://www.meininger.com/ -- is a well organized art supply store holding everything from exotic paper to fine writing instruments.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com HEMSLOJD INC: Jones Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Hemslojd, Inc. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. Hemslojd, Inc., Case No. 1:22-cv-07692 (S.D.N.Y., Sept. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hemslojd Inc. -- https://www.hemslojd.com/ -- is a gift shop in Lindsborg, Kansas selling a variety of home goods, gifts, clothing, food, textiles, and more.[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 HOLLIS DELI: Castillo Suit Alleges Unpaid Wages for Deli Cooks -------------------------------------------------------------- PATRICIA CASTILLO, individually and on behalf of all others similarly situated, Plaintiff v. HOLLIS DELI & GRILL CORP. (DBA Hollis Deli), SAYAD A. MOKBEL, and ABDULLA YAFEI, Defendants, Case No. 1:22-cv-05476 (E.D.N.Y., September 13, 2022) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay minimum wages, failure to pay overtime wages, failure to provide accurate wage statements, and failure to comply with notice and recordkeeping requirements. The Plaintiff was employed by the Defendants as a cook at Hollis Deli in New York from August 18, 2016 until September 2, 2022. Hollis Deli & Grill Corp. is an owner and operator of a deli under the name Hollis Deli, with its headquarters at 20602 Hollis Ave. Queens, New York. [BN] The Plaintiff is represented by: Lina Stillman, Esq. STILLMAN LEGAL, P.C. 42 Broadway, 12t Floor New York, NY 10004 Telephone: (212) 203-2417 HONOLULU, HI: Hayslip Sues to Recover Unpaid Overtime Wages ----------------------------------------------------------- Robert M. Hayslip, on behalf of himself and other similarly situated Individuals v. CITY AND COUNTY OF HONOLULU, Case No. 1:22-cv-00410-DKW-WRP (D. Haw., Sept. 14, 2022), is brought pursuant to the Fair Labor Standards Act to recover unpaid overtime and other compensation, interest thereon, liquidated damages, costs of suit, reasonable attorney fees, and other relief. This action arises from Defendant's failure to properly calculate the "regular rate" of pay used to calculate Plaintiff(s)' overtime compensation under the FLSA and/or its failure to pay overtime entirely and/or its failure to timely pay overtime, says the complaint. The Plaintiff was employed by Defendant City and County of Honolulu. The Defendant is a political subdivision of the State of Hawaii.[BN] The Plaintiff is represented by: William B. Aitchison, Esq. Ryan Lufkin, Esq. Traci Anderson, Esq. PUBLIC SAFETY LABOR GROUP PO Box 12070 Portland, OR, 97212 Phone: (866) 486-5556 Email: Will@PSLGlawyers.com Ryan@PSLGlawyers.com Traci@PSLGlawyers.com - and - Chasid M. Sapolu, Esq. SAPOLU LAW OFFICE 500 Ala Moana Blvd, Ste. 7400 Honolulu, HI, 96813 Phone: (808) 466-1520 Email: Chasid@Sapolulaw.com HOUSING MANAGEMENT: Justice FLSA Suit Removed to S.D. West Virginia ------------------------------------------------------------------- The case styled as Ora Justice, Jr., and all other individuals similarly situated v. Housing Management, Inc., Buffalo Creek Apartments, L.P., Dalcor Management, Inc., Case No. 22:C-101 was removed from the Logan County Circuit Court, to the U.S. District Court for Southern District of West Virginia on Sept. 12, 2022. The District Court Clerk assigned Case No. 2:22-cv-00387 to the proceeding. The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Buffalo Creek Apartments, L.P. -- https://www.buffalocreekindianapolis.com/ -- is an apartment complex in Indianapolis, Indiana.[BN] The Plaintiff is represented by: John-Mark Atkinson, Esq. Mark A. Atkinson, Esq. ATKINSON & POLAK P. O. Box 549 Charleston, WV 25322-0549 Phone: (304) 346-5100 Fax: (304) 346-4678 Email: johnmark@amplaw.com emboles@amplaw.com - and - Steven S. Wolfe, Esq. WOLFE WHITE & ASSOCIATES P. O. Box 536 Logan, WV 25601 Phone: (304) 752-7715 Fax: (304) 752-7710 Email: swolfe@wolfelawwv.com The Defendants are represented by: Christopher D. Pence, Esq. HARDY PENCE 10 Hale Street Charleston, WV 25301 Phone: (304) 345-7250 Email: cpence@hardypence.com - and - James P. McHugh, Esq. HARDY PENCE P. O. Box 2548 Charleston, WV 25329-2548 Phone: (304) 345-7250 Fax: (304) 345-9941 Email: jmchugh@hardypence.com HYUNDAI MOTOR: Morrow Sues Over Defective Vehicles -------------------------------------------------- Miyoshi Morrow, Tracy Spradlin, and Rachel Perry, individually and on behalf of all others similarly situated v. HYUNDAI MOTOR AMERICA INC., a California corporation; and KIA AMERICA, INC., a California Corporation, Case No. 8:22-cv-01674 (C.D. Cal., Sept. 12, 2022), is brought on behalf of all persons who purchased or leased model year 2011-2022 Kia vehicles and model year 2015-2022 Hyundai vehicles collectively the "Class Vehicles") containing turn-key ignition systems which contained defects that the Defendant failed to disclose, reveal, or provide notice. The Class Vehicles have a critical security vulnerability because they are not equipped with standard "immobilizer" equipment, which prevents vehicles from being started unless a specific electronic signal is transmitted from a vehicle's key fob or smart key to the vehicle (the "Immobilizer Defect" or the "Defect"). The Immobilizer Defect leaves Class Vehicles particularly susceptible to theft due to the ease with which they can be stolen. The Defendants designed, manufactured, distributed, and sold Class Vehicles with the Immobilizer Defect. In doing so, Defendants concealed or otherwise failed to disclose, reveal, or provide notice to customers, including the Plaintiffs, in Defendants' advertising, labeling or otherwise that the Class Vehicles are defective and are not fit for the ordinary purposes for which the vehicles are used in that they are easy to steal, unsafe, and worth less than they should be if they were not defective, says the complaint. The Plaintiff purchased one of the Class Vehicles from the Defendants. The Defendants designed, manufactured, distributed, and sold Class Vehicles.[BN] The Plaintiff is represented by: Roland Tellis, Esq. David B. Fernandes, Jr., Esq. Adam Tamburelli, Esq. Shannon Royster, Esq. BARON & BUDD, P.C. 15910 Ventura Boulevard, Suite 1600 Encino, CA 91436 Phone: 818.839.2333 Email: rtellis@baronbudd.com dfernandes@baronbudd.com atamburelli@baronbudd.com sroyster@baronbudd.com - and - Matthew L. Dameron, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Phone: (816) 945-7110 Fax: (816) 945-7118 Email: matt@williamsdirks.com iFIT INC: Sofranac Sues Over Defective Exercise Equipment --------------------------------------------------------- Ashley Sofranac, Robin Canale, and Ricardo Mendoza, on behalf of themselves and all others similarly situated v. iFIT INC., a Delaware corporation, and iFIT HEALTH & FITNESS INC., a Delaware corporation, Case No. 3:22-cv-05205 (N.D. Cal., Sept. 12, 2022), is brought for breaches of warranty under the Magnuson-Moss Warranty Act with regards to the Defendant defective exercise equipment that cannot run the iFIT software. The Defendant sells expensive exercise equipment, such as bikes, treadmills, ellipticals, and rowers, for consumer use. The exercise equipment is designed to run with the operating software "iFIT." The software is necessary for the equipment to function, controlling the bike and offering users classes and other features to enhance their workouts. This centrally important iFIT software does not work on Plaintiffs' and the proposed Class members' equipment. Class members' equipment cannot run the iFIT software because the computer equipment in the console is not adequate to do so (Plaintiffs refer to this as the "Console Defect"). For some, the equipment never worked. For others, their machines were rendered unusable after updating the iFIT software. The Plaintiffs' and the Class members' equipment simply do not have the hardware capability to run iFIT software. The equipment's console--the computer equipment housed in the monitor screen that controls the bike--does not have processing power adequate to properly run the iFIT software. As the iFIT software gets updated it becomes larger and requires more computing power, outstripping the capabilities of the console's hardware. Unfortunately, the Console Defect issue rendering Plaintiffs' equipment unusable also plagues countless other consumers. Consumers also relate that Defendants' customer service has failed to remedy these issues and have been completely unhelpful, even after months or years of requests for this to be fixed. Defendants could remedy this problem by replacing the consoles on the exercise equipment with new consoles that contain adequate processing capability to run the iFIT software, says the complaint. The Plaintiffs purchased one of the Defendants' equipment and suffered from the Console Defect. The Defendants are health and fitness technology companies that sell NordicTrack-branded fitness equipment, including stationary bikes, treadmills, ellipticals, and rowers, that is paired with "iFIT" exercise software.[BN] The Plaintiffs are represented by: Karl S. Kronenberger, Esq. KRONENBERGER ROSENFELD, LLP 150 Post Street, Suite 520 San Francisco, CA 94108 Phone: (415) 955-1155 Facsimile: (415) 955-1158 Email: karl@kr.law - and - Raphael Janove, Esq. Adam Pollock, Esq. POLLOCK COHEN LLP 111 Broadway, Suite 1804 New York, NY 10006 Phone: (212) 337-5361 Email: rafi@pollockcohen.com adam@pollockcohen.com IG INTERNATIONAL: Senior Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against IG International, LLC. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. IG International, LLC, Case No. 1:22-cv-07785 (S.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. IG International -- https://www.ig.com/ -- is a leading online trading provider for spread betting, CFD and stockbroking.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal INDEPENDENT MECHANICAL: Court Denies Bid to Dismiss Lee Labor Suit ------------------------------------------------------------------ In the case, KEVIN LEE, JORDAN SHERMAN, ROBERT PACHECO, ALEXANDRE RAKHMANOV, IGNAZIO BONGIORNO, BESNIK DIBRA, VASYL SKYDANIUK, MICHAEL MADERA, JERMAL LINCOLN, STEVEN BOSA, CESAR PINTO, LASCELLES INGLETON, JASON LIRIANO, Plaintiffs v. INDEPENDENT MECHANICAL, INC., DENKO MECHANICAL, INC., S. DENKO MECHANICAL, INC., SERGEI DENKO, LAURA DENKO, Defendant, Index No. 160681/2017, Motion Seq. No. 002 (N.Y. Sup.), Judge William Perry of the Supreme Court of New York County denies the Defendants' motion to dismiss in its entirety. The Plaintiffs bring the class action employment action against Defendants Independent, Denko Mechanical Inc., S. Denko Mechanical Inc., Sergei Denko, the CEO of the three corporations, and Laura Denko, their President. The Plaintiffs allege various violations of statutory rights, including: overtime provisions of the New York Labor Law ("NYLL") Section 160; anti-discrimination provisions in the New York City Human Rights Law ("NYCHRL"); prevailing wage, benefits, and overtime provisions of NYLL Section 120; the requirement that employers furnish their employees with wage statements on each payday containing specific categories of accurate information under the NYLL Section 195[3]; and the requirement of furnishing accurate wage notices at the time of hiring and on an annual basis under NYLL Section 195[1]. The Plaintiffs allege, inter alia, that they are former employees of the Defendants, that the Defendants failed to pay them prevailing wages as required by public works contracts, and that for non-public works contracts, the Defendants fraudulently represented to contractors/project managers that the Plaintiffs had union status in order to secure higher union wages, but that the Defendants never passed those higher wages on to the Plaintiffs. In perpetrating this fraud, the Plaintiffs allege that Sergei Denko frequently directed them to wear union uniforms and falsely represent to Department of Buildings personnel and security guards that they were employed by Denko Mechanical, rather than Independent. In the amended complaint, the Plaintiffs set forth the following causes of action on behalf of themselves and the class: Breach of contract; unjust enrichment; quantum meruit; failure to furnish wage notices in violation of NYLL Section 195[1] and the New York Wage Theft Prevention Act (NYWTPA); and failure to furnish proper wage statements in violation of NYLL Section 195[3] and the NYWTPA. In addition to the following causes of action: Fraudulent inducement, on behalf of Plaintiffs Santos, Bosa, and Rakhmanov; unpaid overtime under the NYLL and the New York Codes, Rules, and Regulations (NYCRR), on behalf of Plaintiffs Rakhmanov, Dibra, and Skydaniuk; hostile work environment based on race and racial discrimination, on behalf of Plaintiffs Lee, Santos, Lincoln, Ingleton, and Pinto; hostile work environment based on religion, in violation of the NYCHRL, on behalf of Plaintiff Sherman; and retaliation in violation of NYLL Section 215, on behalf of Plaintiff Lee. The Defendants move to dismiss causes of action 1-7 and 10 in their entirety, and to dismiss the eighth cause of action as to all the Plaintiffs other than Lee. As to Causes of action 1 to 3 for breach of contract, unjust enrichment, and quantum merlin, the Defendants argue that the Court lacks subject matter jurisdiction over the first three causes of action, as there is no private right of action to enforce prevailing wage regulations, citing Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs. v Sweeney. Judge Perry finds the argument incorrect. Cayuga-Onondaga Counties is distinguishable, as that case dealt with the Commissioner of Labor's overarching powers to enforce prevailing wage payment requirements for public works, which "may be exercised independently of the position or even existence of a private complainant." Next, the Defendants argue that the Plaintiffs fail to state a claim for breach of contract because they are not parties to the public works contracts, six of which are allegedly submitted in support as documentary evidence. However, Judge Perry finds that the Defendants' submissions do not "definitively dispose of the Plaintiff's claims. These are subcontracts to which Defendant Denko Mechanical Inc. is a subcontractor, with Clifford Group Inc., MBI Group, or Comfort Zone Mechanical Corp. serving as contractor, and there is no indication on their face that the subcontracts pertain to public works or that the Defendants have produced "all the relevant contracts for the projects at issue." That the Defendants are parties to those public works contracts, that Plaintiffs are third-party beneficiaries thereto, and the Defendants breached the contracts by failing to pay the Plaintiffs the prevailing wage, are legally sufficient. The Defendants' motion to dismiss the causes of action for unjust enrichment and quantum meruit based on the same "documentary evidence" is denied for the same reason. Their motion to dismiss these causes of action on the grounds that they are duplicative of the breach of contract claim is denied, as the Plaintiffs are "not precluded from proceeding on both breach of contract and quasi-contract theories where there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue." As such, these causes of action are not entirely duplicative of the breach of contract claim. With respect to Causes of action 4 and 5 for wage notices and statements under NYLL Section 195 [1] and [3], the Defendants argue that "any claim by the Plaintiff under prior provision of Section 195[1] for failure to furnish annual wage notice is enforceable only by the Commissioner of Labor under NYLL Section 198[1-b] and not by an employee's private right of action." They argue the Plaintiffs are not even alleging that this law was broken, only reiterating their other non-viable claims under an inapplicable statute." The Plaintiffs counter that the Labor Law was amended in 2011 to give individual employees a private right of action. Judge Perry finds that the Plaintiffs allege that the Defendants did not issue accurate pay stubs to them and other similarly situated class members, in violation of New York Labor Law Section 195[3]. The Defendants extend no evidence to the contrary. Therefore, the Plaintiffs have adequately pled a violation of Labor Law Section 195[3]. As to Cause of action 6 for fraudulent inducement, the Defendants argue that the Plaintiffs' cause of action for fraudulent inducement should be dismissed for lack of specificity, pursuant to CPLR 3016, as they do not name which unions Defendants falsely represented they were members of, or state the union wage rate. Further, they argue that the Plaintiffs are at-will employees and are unable to assert this cause of action. The allegations underlying the cause of action for fraudulent inducement are sufficiently pled under CPLR 3016, which requires that "the circumstances constituting the wrong will be stated in detail, Judge Perry finds. The amended complaint here sufficiently sets forth the required elements for commonlaw fraudulent inducement. Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss. Further, the Plaintiffs' cause of action is not barred by the at-will employment doctrine. So, the Plaintiffs' alleged injury is the discrepancy in pay from the union rate versus what they actually received, which is "separate and distinct from termination." The Defendants' argument that Laduzinski is distinguishable because it "involves an employee who accepted a two-year employment contract and is therefore not an employee at-will" is incorrect, as that plaintiff was an at-will employee, despite the fact that he had signed a contract. Turning to Cause of action 7 for overtime wages, accepting all facts in the amended complaint as true, Judge Perry finds that the Plaintiffs adequately plead a cause of action for unpaid overtime wages. The "documentary evidence" submitted by the Defendants to evidence that they actually did pay overtime to the Plaintiffs is insufficient to "utterly refute" their allegations. Moreover, when the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one." Regarding Cause of action 8 for hostile work environment based on race, the Defendants argue that Plaintiffs Santos, Lincoln, Ingelton, and Pinto fail to state a cause of action for hostile work environment because they do not allege when Sergei Denko made the racist statements, the statements are "far-fetched," and they do not rise above "a petty slight or trivial inconvenience." They also argue that "Lincoln alleges that Mr. Denko repeatedly call him the n-word. However, Mr. Lincoln's race is never identified." The Plaintiffs, however, do identify the race of Lincoln, in addition to the races of each Plaintiff asserting this cause of action. Moreover, their detailed allegations, accepted as true for the purposes of determining a motion to dismiss, sufficiently state a cause of action for hostile work environment based on race. Further, they do not bear the burden of demonstrating that the Defendants' alleged discrimination rose above the level of "petty slights and trivial inconveniences" at this stage of the litigation, as that constitutes an affirmative defense to be pled in the Defendants' answer. To the extent that the Defendants argue that the claim is time-barred by a three-year statute of limitations, Judge Perry holds that they fail to meet their burden for dismissal under CPLR 3211[a][5]. These Plaintiffs allege that the Defendants racially discriminated against them throughout the course of their employment, i.e., for Lincoln and Ingleton, 2015 through 2017, for Santos, 2016 through the present, and for Pinto, 2017 through 2019. The Plaintiffs commenced the action on Dec. 1, 2017 and moved to amend their complaint on Oct. 7, 2019; however, due to delays from the COVID-19 pandemic, the court granted the motion on Feb. 10, 2021. Accepting these facts as true, Judge Perry says the Plaintiffs allegations would not be not time-barred pursuant to the continuing violation doctrine exception. Lastly, Judge Perry holds that the Plaintiffs adequately allege a cause of action for retaliation, as they allege that Lee filed a complaint against the Defendants, and that he was fired as a result. Their argument for dismissal is conclusory and unsupported by caselaw. Based on the foregoing, Judge Perry denies the Defendants' motion for dismissal in its entirety. He directs them to serve an answer to the amended complaint within 20 days after service of a copy of the Order with notice of entry. The counsel is directed to thereafter meet and confer and electronically file a proposed Preliminary Conference Order for the Court's review and signature, within 30 days. A full-text copy of the Court's Sept. 9, 2022 Decision + Order is available at https://tinyurl.com/579veeaw from Leagle.com. INDIANAPOLIS MOTOR SPEEDWAY: Ortiz Files ADA Suit in W.D. New York ------------------------------------------------------------------ A class action lawsuit has been filed against Indianapolis Motor Speedway, LLC. The case is styled as Joseph Ortiz, on behalf of himself and all other persons similarly situated v. Indianapolis Motor Speedway, LLC, Case No. 1:22-cv-00692 (W.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Indianapolis Motor Speedway -- https://www.indianapolismotorspeedway.com/ -- is an automobile racing circuit located in Speedway, Indiana (an enclave suburb of Indianapolis) in the United States.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: jeffrey@gottlieb.legal - and - Michael A. LaBollita, Esq. GOTTFRIED & GOTTFRIED, LLP 122 East 42nd. St., Suite 620 New York, NY 10168 Phone: (212) 228-9795 Email: michael@gottlieb.legal INDYMAE LLC: Simpson Sues Over Nuisance Telemarketing Practices --------------------------------------------------------------- Douglas Simpson, individually and on behalf of all those similarly situated v. INDYMAE, LLC, Case No. 8:22-cv-02126-MSS-TGW (M.D. Fla., Sept. 13, 2022), is brought under the Florida Telephone Solicitation Act and the Telephone Consumer Protection Act in response to widespread public outrage about the proliferation of intrusive, nuisance telemarketing practices. The Defendant uses automated systems to make outbound telemarketing calls to hundreds if not thousands of consumers across U.S., soliciting consumers to solicit the purchase of their services. By doing so, the Defendant has violated the provisions of FTSA and it violated the TCPA when it contacted numbers on the National Do Not Call Registry. The Defendant has caused the Plaintiff and Class Members to suffer injuries as a result of placing unwanted telephonic sales calls to their phones. The Plaintiff seeks injunctive relief to halt the Defendant's unlawful telemarketing calls. The Plaintiff additionally seeks damages as authorized by the FTSA and TCPA on behalf of the Plaintiff and the Class Members, and any other available legal or equitable remedies resulting from the actions of Defendant, says the complaint. The Plaintiff is a citizen and resident of Florida. IndyMae offers a service where they offer loans and lines of credit to individuals.[BN] The Plaintiff is represented by: Avi R. Kaufman, Esq. Rachel E. Kaufman, Esq. KAUFMAN P.A. 237 S. Dixie Hwy, 4th Floor Coral Gables, FL 33133 Phone: (305) 469-5881 Email: kaufman@kaufmanpa.com rachel@kaufmanpa.com INFLECTION RISK: Hegwood FCRA Suit Removed to W.D. Missouri ----------------------------------------------------------- The case styled as Deja Hegwood, on behalf of herself and all others similarly situated v. Inflection Risk Solutions, LLC, Case No. 22CN-CC00043 was removed from the Circuit Court of Clinton County, to the U.S. District Court for Western District of Missouri on Sept. 14, 2022. The District Court Clerk assigned Case No. 5:22-cv-06102-GAF to the proceeding. The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. Inflection Risk Solutions, LLC -- https://www.inflection.com/ -- operates as a big data company. The Company offers sourcing, filtering, and analyzing of public records, as well as provides people data, privacy standards, and risk solutions.[BN] The Plaintiff is represented by: Charles Jason Brown, Esq. Jayson A. Watkins, Esq. BROWN & WATKINS, LLC 301 S. US 169 Highway Gower, MO 64454 Phone: (816) 505-4529 Fax: (816) 424-1337 Email: brown@brownandwatkins.com watkins@brownandwatkins.com The Defendant is represented by: Rosalee Miller McNamara, Esq. LATHROP GPM LLP 2345 Grand Avenue, Suite 2200 Kansas City, MO 64108-2618 Phone: (816) 460-5604 Email: rosalee.mcnamara@lathropgpm.com IRENE MANOLIAS: Grant Sues Over Unpaid Compensations ---------------------------------------------------- Jennifer Grant, on behalf of herself and all other persons similarly situated v. Irene Manolias and Sarene Services Inc. d/b/a Serene Home Nursing Agency, Case No. 2:22-cv-05444 (E.D.N.Y., Sept. 12, 2022), is brought pursuant to the Fair Labor Standards Act and the New York Labor Law for unpaid statutory minimum wages and overtime premium pay. The Plaintiff alleges that she is entitled to: compensation for wages paid at less than the statutory minimum wage, unpaid wages from Defendants for overtime work for which she did not receive overtime premium pay as required by law, compensation to pay wages for all hours worked; compensation for SSI's failure to pay Plaintiff on time, and compensation for wages paid at less than the statutory minimum wage; back wages for failure to pay wages for all hours worked; compensation for Defendants' violations of the spread-of-hours requirements of New York Labor Law; compensation for Defendants' failure to the full compensation owed under New York's Wage Parity Act, Public Health Law liquidated damages pursuant to the FLSA and the NYLL, says the complaint. The Plaintiff was employed as a home health aide at SSI from August 20, 2019, until December 6, 2021. The Defendant owns and operates a home health care service, placing home health and personal care aides at the homes of patients in Long Island, New York, patients who have medical and personal care needs.[BN] The Plaintiff is represented by: Michael Samuel, Esq. THE SAMUEL LAW FIRM 1441 Broadway, Suite 6085 New York, NY 10018 Phone: (212) 563-9884 Email: michael@thesamuellawfirm.com J&S UNDERGROUND: Roepke Sues Over Unpaid Overtime Compensation -------------------------------------------------------------- Jake Roepke, on behalf of himself and all others similarly situated v. J&S UNDERGROUND NETWORKS, INC. (a/k/a Lone Star Digging, Inc.), STACI FLURY, and JERRY CHAFFIN, Case No. 3:22-cv-02011-G (N.D. Tex., Sept. 9, 2022), pursuant to the federal Fair Labor Standards Act, and the federal Portal-to-Portal Pay Act, for the Defendants’ failure to pay the Plaintiff time and one-half their respective regular rates of pay for all hours worked over 40 during each seven-day workweek as employees of the Defendants. The Defendants had a practice and policy of reducing the number of hours worked as reported by Plaintiff and the putative collective action members in connection with paying wages owed (the "Time Shaving"). The Defendants did not count that travel time as compensable time or otherwise pay Plaintiff and the putative collective action members wages for that compensable travel time (the "Unpaid Travel Time"). The Plaintiff and the putative collective action members routinely worked more than 40 hours per seven-day workweek as employees of Defendants exclusive of the Time Shaving and/or Unpaid Travel Time. However, Defendants did not pay Plaintiff and the putative collective action members time and one half their respective regular rates of pay for all hours worked over 40 in each and every seven-day workweek due to the Time Shaving and/or Unpaid Travel Time, says the complaint. The Plaintiff was employed by J&S to perform manual labor in connection with J&S's Boring Services. J&S provides underground boring, trenching, and utilities installation services.[BN] The Plaintiff is represented by: Allen R. Vaught VAUGHT FIRM, LLC 1910 Pacific Ave., Suite 9150 Dallas, TX 75201 Phone: (972) 707-7816 Facsimile: (972) 591-4564 Email: avaught@txlaborlaw.com JANUS HENDERSON: Schissler Sues Over Breach of Fiduciary Duties --------------------------------------------------------------- Sandra Schissler, individually and as a representative of a class of similarly situated persons, and on behalf of the Janus 401(k) and Employee Stock Ownership Plan v. JANUS HENDERSON US (HOLDINGS) INC., JANUS HENDERSON ADVISORY COMMITTEE, and JOHN and JANE DOES 1-30, Case No. 1:22-cv-02326-RM-MEH (D. Colo., Sept. 9, 2022), is brought under the Employee Retirement Income Security Act of 1974 against the Defendant for a breach of the fiduciary duties of loyalty and prudence, and against Janus Henderson for failure to monitor fiduciaries, to remedy this unlawful conduct. The Defendants have not acted in participants' best interest. Quite the opposite, they have used the Plan to promote Janus Henderson’s proprietary investments and earn profits for Janus Henderson. As of the end of 2021, the Defendants stocked the Plan’s investment menu with 40 proprietary investments: proprietary money market fund and 39 proprietary mutual funds. An objective and prudent review of comparable investments in the marketplace would have revealed numerous available investments that were less costly and superior to the Janus Henderson Funds that Defendants selected and retained in the Plan. While the Defendants’ disloyal and imprudent conduct generated significant profits for Janus Henderson, it has cost participants millions of dollars in excessive fees and lost investment returns since the start of the putative class period. At the expense of the Plan and its participants and beneficiaries, Defendants breached their fiduciary duties with respect to the Plan in violation of ERISA. Defendants applied a disloyal and imprudent preference for Janus Henderson proprietary funds within the Plan, despite their poor performance and high costs. Defendants' disloyalty and imprudence has cost plan participants millions of dollars over the putative class period. The Plaintiff brings this action to remedy this unlawful conduct, recover losses to the Plan, and obtain other appropriate relief as provided by ERISA, says the complaint. The Plaintiff has participated in the Plan since 2012 and is a current participant. Janus Henderson is a global active-asset management group duly incorporated in Colorado and Delaware.[BN] The Plaintiff is represented by: Paul J. Lukas, Esq. Brock J. Specht, Esq. Grace I. Chanin, Esq. NICHOLS KASTER, PLLP 4700 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Phone: (612) 256-3200 Facsimile: 612-338-4878 Email: lukas@nka.com bspecht@nka.com gchanin@nka.com KARENNA MARAJ: Hernandez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Karenna Maraj Jewelry, LLC. The case is styled as Janelys Hernandez, on behalf of herself and all others similarly situated v. Karenna Maraj Jewelry, LLC, Case No. 1:22-cv-07758 (S.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Karenna Maraj Jewelry -- https://karennamarajcollection.com/ -- specializes in handmade, custom jewelry for any occasion: weddings, anniversaries, birthdays, all holidays.[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 KIA AMERICA: Fisher Sues Over Defective Vehicles ------------------------------------------------ Jennifer Fisher, individually and on behalf of all others similarly situated v. KIA AMERICA, INC. and HYUNDAI MOTOR AMERICA, Case No. 1:22-cv-02367 (D. Colo., Sept. 14, 2022), is brought against the Defendants' unfair, deceptive, and/or fraudulent business practices with regards to the Defendants' vehicles suffering from a significant defect. The Defendants' vehicles suffer from a significant defect: they do not include an engine immobilizer. An engine immobilizer is designed to prevent vehicle theft when a vehicle is left unattended. An engine immobilizer works by transmitting a code to the vehicle when the key is inserted in the ignition switch or a key fob is inside the vehicle. Thefts of the Defendants vehicles has risen substantially across the United States as knowledge of the defect is now widespread. Because vehicles manufactured and sold by the Defendants suffer from a defect, thieves only need to gain access to a vehicle, and once inside, strip the ignition column and insert a screwdriver, knife, or even a USB cord to start the vehicle. The Defendants are aware that their vehicles lack engine immobilizers. The Defendants are aware that thefts of vehicles manufactured and sold by them have increased nationwide. Despite the rise in vehicle thefts, the Defendants have not issued a recall or offered to install vehicle immobilizers in the affected vehicles. The Plaintiff purchased a vehicle manufactured by Defendants which suffers from the defect. Plaintiff would not have purchased the vehicle or would have paid less for the vehicle had Plaintiff known about the defect. As a result of Defendants' unfair, deceptive, and/or fraudulent business practices, consumers of these products, including Plaintiff, have suffered an ascertainable loss, injury-in-fact, and otherwise have been harmed by Defendants' conduct, says the complaint. The Plaintiff purchased or leased vehicles manufactured and sold by Defendants. The Defendants manufacture and sell motor vehicles in the United States and Minnesota.[BN] The Plaintiff is represented by: Timothy J. Becker, Esq. Jacob R. Rusch, Esq. Zackary S. Kaylor, Esq. JOHNSON BECKER, PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Phone: 612-436-1800 Fax: 612-436-1801 Email: tbecker@johnsonbecker.com jrusch@johnsonbecker.com zkaylor@johnsonbecker.com KICKIN' K RANCH: Dicks Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Kickin' K Ranch, LLC. The case is styled as Victoria Dicks, on behalf of herself and all others similarly situated v. Kickin' K Ranch, LLC, d/b/a The Celtic Ranch, Case No. 1:22-cv-07709 (S.D.N.Y., Sept. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Kickin' K Ranch, LLC, doing business as The Celtic Ranch -- https://celticranch.com/ -- is an Irish clothing shop offering Celtic gifts & the unique whiskey snug.[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 LABORATORY CORP: Faces Class Action Over Unfair Retirement Plans ---------------------------------------------------------------- Isaac Groves, writing for Times-News, reports that Laboratory Corporation of America has more than 70,000 employees, more than 3,000 in Alamance County, and one of them says the company's retirement plan is spending six times what it should on administration in a federal lawsuit significantly cutting into retirement funds. LabCorp has long been Alamance County's largest private employer, and most of those employees are eligible for the Laboratory Corporation of America Holdings Employees' Retirement Plan. Damian McDonald, the only named plaintiff in what seeks to be a federal class-action suit open to all LabCorp employees participating in the retirement plan, is a current employee, though the suit does not specify where he works. Like most modern retirement plans, LabCorp's is a 401k defined contribution plan, meaning employees put their own money into it along with company matching funds, and the plan invests those funds. Fidelity Investments Institutional Operations Company is the plan's "recordkeeper," which can be a misleading description, according to the suit, because its services can include managing accounts, investment consultation and claims processing. Fidelity is also the company LabCorp is overpaying, according to the suit, in three ways. The first is a direct per-participant fee. That is a standard charge for recordkeepers, but Fidelity charged the plan $40 to $48 per participant between 2015 and 2020 while plans of similar size pay no more than $25, according to the suit. In a separate lawsuit against Fidelity's retirement plan, that company stipulated that its own services ranged in value from $14 to $17 per participant, and Fidelity itself charged similar plans for other companies significantly less. LabCorp failed to negotiate a better rate or seek out bids from competing recordkeepers, according to the suit. Fidelity also gets indirect payment in two ways - the first is revenue sharing which is based on asset values. While not always a bad approach, according to the suit, it is a simple way to hide fees since it is handled in-house. It is also not really tied to the service the recordkeeper provides but to the value of market assets, which is sometimes compared to paying a plumber for the volume of water going through a pipe instead of a flat fee for plugging a leak in it. Then there is "float interest." When participants put money in or take it out of the $3.9 billion plan, it passes through a Fidelity clearing account where it accrues interest for however long it takes to complete the transaction. LabCorp agreed to let Fidelity keep that money, according to the suit, and did not even track how much Fidelity makes off the interest on participant dollars. Counting these direct and indirect payments to Fidelity, the LabCorp retirement plan paid something like $150 per participant, according to the suit, when it should have paid no more than $25. The Times-News cannot confirm that figure. Contributions and investments accumulate over time in these kinds of retirement accounts, so small costs can lead to large losses long-term, and, according to the suit, the U.S. Department of Labor says over 35 years, a 1% increase in fees leads to a 28% difference in returns. The lawsuit is asking for the difference between what retirees get from the plan and what they would have gotten under better management. The plan had more than 55,000 participants at the end of 2020 and about $3.9 billion in assets, according to the suit, making it what it calls a "mega plan." Financial managers compete to administer plans like that, but LabCorp has no financial incentive to take advantage of that competitive advantage since it's not the company's money and not the company's returns, according to the suit. However, the manager of this kind of retirement plan is considered a fiduciary, meaning it has a duty to manage these funds in the interest of the employees contributing to them and take prudent actions to make sure they are treated fairly. A January U.S. Supreme Court decision in Hughes v. Northwestern University put more responsibility on employers offering defined contribution retirement plans to make prudent decisions on behalf of employees trusting them with their retirement earnings. That decision has opened many large employers to suits like the one LabCorp is facing now and there are many firms filing them. LabCorp has not yet responded to the lawsuit and chose not to comment on ongoing litigation for this story. [GN] LIBERTY MUTUAL: Fassina Files Suit in D. Massachusetts ------------------------------------------------------ A class action lawsuit has been filed against Liberty Mutual Fire Insurance Company. The case is styled as Janice Fassina, individually and on behalf of all others similarly situated v. Liberty Mutual Fire Insurance Company, Case No. 1:22-cv-11466-RWZ (D. Mass., Sept. 12, 2022). The nature of suit is stated as Insurance for Insurance Contract. Liberty Mutual -- https://www.libertymutual.coop/ -- offers home, farm, mobile, seasonal property, renters, personal umbrella, business owners, commercial insurance, and more.[BN] The Plaintiff is represented by: Jonathan M. Feigenbaum, Esq. 184 High Street, Suite 503 Boston, MA 02110 Phone: (617) 357-9700 Fax: (617) 227-8992 Email: jonathan@erisaattorneys LING SKINCARE: Maddy Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Ling Skincare Ltd. The case is styled as Veronica Maddy, on behalf of herself and all others similarly situated v. Ling Skincare Ltd., Case No. 1:22-cv-07689 (S.D.N.Y., Sept. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ling Skincare -- https://www.lingskincare.com/ -- is a luxury professional skincare brand, founded in NYC in 1976 by celebrity facialist Ling Chan.[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 LOTTERY.COM INC: Rogers Sues Over Decline in Securities Value ------------------------------------------------------------- Dallis Rogers, individually and on behalf of all others similarly situated v. LOTTERY.COM, INC. f/k/a TRIDENT ACQUISITIONS CORP., ANTHONY DIMATTEO, MATTHEW CLEMENSON, and RYAN DICKINSON, Case No. 1:22-cv-00907 (W.D. Tex., Sept. 9, 2022), is brought on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Lottery.com securities between November 15, 2021 and July 28, 2022, both dates inclusive, and to pursue claims against the Defendants under the Securities Exchange Act of 1934 as a result of the precipitous decline in the market value of the Company's securities. On October 29, 2021, pursuant to a Business Combination Agreement dated February 21, 2021, TDAC consummated a business combination with AutoLotto, Inc., which, since its founding in 2015, conducted business as Lottery.com. Following the closing of the Business Combination, the Company changed its name to Lottery.com, the business of AutoLotto became Lottery.com's business, and the Company's shares began trading on the NASDAQ under the symbol "LTRY". The Defendants made materially false or misleading statements and/or failed to disclose, inter alia, that: (i) the Company lacked adequate internal accounting controls; (ii) the Company lacked adequate internal controls over financial reporting, including, but not limited to, those pertaining to revenue recognition and the reporting of cash; (iii) the Company was not in compliance with state and federal laws governing the sale of lottery tickets; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. On July 6, 2022, on a Form 8-K filed with the SEC, Lottery.com disclosed that an internal investigation, conducted by independent counsel, had uncovered "instances of non-compliance with state and federal laws concerning the state in which tickets are procured as well as order fulfillment." On this news, Lottery.com’s stock price fell $0.15 per share, or more than 12%, from a closing price of $1.22 per share on July 5, 2022 to a closing price of $1.07 per share on July 6, 2022, on abnormally high volume. On July 15, 2022, in a Form 8-K filed with the SEC after the markets closed, Lottery.com announced that Chief Revenue Officer Matthew Clemenson had resigned on July 11, 2022, effective immediately. On this news, Lottery.com's stock price fell $0.146 per share, or over 15%, from a closing price of $0.966 per share on July 15, 2022 to a closing price of $0.82 per share on July 18, 2022, on abnormally high volume. The Company made a series of additional adverse disclosures before finally, on July 29, 2022, in another Form 8-K filed with the SEC, informing the market that it did not have "sufficient financial resources to fund its operations or pay certain existing obligations," and that it, therefore, intended to furlough certain employees effective July 29, 2022. On this news, Lottery.com's stock price lost 64% of its value in a single trading day, falling $0.52 per share, from a closing price of $0.815 per share on July 28, 2022 to a close of $0.295 per share on July 29, 2022. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff purchased or otherwise acquired Lottery.com securities during the Class Period. Lottery.com, headquartered in Spicewood, Texas, is a technology company that operates a business-to-consumer platform enabling players to remotely purchase legally sanctioned lottery games in the U.S. and internationally.[BN] The Plaintiff is represented by: Willie C. Briscoe, Esq. THE BRISCOE LAW FIRM, PLLC 12700 Park Central Drive, Suite 520 Dallas, TX 75251 Phone: 972-521-6868 Facsimile: 281-254-7789 Email: wbriscoe@thebriscoelawfirm.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Phone: (212) 661-1100 Facsimile: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com LUCILLE B. SMITH'S: Farias Sues Over Unpaid OT for Restaurant Staff ------------------------------------------------------------------- MARIA FARIAS and MIGUEL ECHEVARRIA, individually and on behalf of all others similarly situated, Plaintiffs v. LUCILLE B. SMITH'S FINE FOODS, LLC d/b/a LUCILLE'S, Defendant, Case No. 4:22-cv-03116 (S.D. Tex., September 13, 2022) is a class action against the Defendant for its failure to compensate the Plaintiffs and similarly situated restaurant staff overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. Ms. Farias and Mr. Echevarria have worked at Lucille's restaurant to prepare food for customers since 2019 and early 2022, respectively. Lucille B. Smith's Fine Foods, LLC is an owner and operator of a southern cuisine restaurant under the name Lucille's, located at 5512 La Branch St., Houston, Texas. [BN] The Plaintiffs are represented by: Galvin Kennedy, Esq. KENNEDY LAW FIRM, LLP 2925 Richmond Ave., Ste. 1200 Houston, TX 77098 Telephone: (713) 425-6445 E-mail: Galvin@KennedyAttorney.com MDL 2645: Classes in "All Natural/Non GMO" Suit v. KIND Decertified ------------------------------------------------------------------- In the case, IN RE: KIND LLC "HEALTHY AND ALL NATURAL" LITIGATION. This Document Relates to All Actions, Case No. 15-MD-2645 (NRB) (S.D.N.Y.), Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York issued a Memorandum and Order: (1) granting the Defendant's motion for summary judgment; (2) granting the Defendant's motion to decertify the classes; (3) granting the Defendant's motions to disqualify the opinions of Dr. J. Michael Dennis and Dr. Anton Toutov; and (4) denying as moot the remaining motions. The case arises out of a challenge to the labeling on certain snacks sold by KIND. The Plaintiffs are individuals who purchased KIND products displaying an "All Natural/Non GMO" label, who allege that the label was deceptive or misleading. This label was discontinued by 2017. While the Plaintiffs initially challenged numerous claims that appeared on the labels of KIND products, the only issue remaining in the litigation is whether certain KIND products are properly described as "All Natural." The Plaintiffs seek damages on behalf of themselves and three classes, pursuant to New York's General Business Law ("GBL") Sections 349 and 350; California's Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code Section 1750, et seq., Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code Section 17200, et seq., and False Advertising Law ("FAL"), Cal. Bus. & Prof. Code Section 17500, et seq.; and Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA") Fla. Sta. Section 501.201, et seq.; and various common law claims. In March 2015, the Food and Drug Administration ("FDA") issued a "warning letter" triggered by the following "about KIND" statement that appeared on some KIND labels: "At KIND we do things differently and try to avoid false compromises. Instead of or we say and. Healthy and tasty, convenient and wholesome, economically sustainable and socially impactful." Specifically, the FDA asserted that KIND'S "healthy and tasty" language was an "implied nutrient content claim" subject to regulations set forth in 21 C.F.R. Section 101.65, and that certain KIND products did not meet the FDA's saturated fat content requirements necessary to describe food as "healthy." In response, KIND argued that many universally recognized healthy foods such as almonds, avocados, or salmon contain saturated-fat levels exceeding the limits prescribed by 21 C.F.R. Section 101.65. Before any further action from the FDA, numerous "copycat" private lawsuits were filed, alleging that consumers were deceived by the "About KIND" statement, which were later transferred into the MDL. The initial complaints challenged representations displayed on the packaging of the KIND products that claimed the products were "all natural," "healthy," "+," "plus," and a "good source of fiber" with "no trans fats," arguing that the products contained little nutritional value, high levels of saturated fat, and genetically modified, synthetic, or other non-natural ingredients. These cases were transferred to this District and consolidated in an MDL before the late Judge Pauley. In November 2015, the FDA announced the "establishment of a docket to receive information and comments on the use of the term 'natural' in the labeling of human food products. Following the FDA's announcement, KIND moved to dismiss the claims against it, or in the alternative, to stay the action pending the FDA's promulgation of a rule addressing the word "natural" on labels. One month later, the Plaintiffs voluntarily dismissed their "healthy" claims. Judge Pauley granted the stay the Defendant requested, reasoning that the FDA seemed prepared to address core issues in the case and a stay would reduce the risk of inconsistent outcomes. Judge Pauley also dismissed any "Non GMO" claim without prejudice, finding that the Plaintiffs had not properly pled a cause of action because they had not alleged that any specific KIND products contained genetically modified organisms ("GMOs"). During the pendency of the stay, the Plaintiffs filed an amended consolidated class action complaint ("ACC"). The ACC alleged in part that the Plaintiffs, who resided in New York, California, and Florida, had been deceived by the "All Natural/Non GMO" claim on KIND packaging. The Defendant moved to dismiss the "Non GMO" claim, arguing that the Plaintiffs had still failed to state a claim. The Plaintiffs opposed the motion and moved to lift the stay. Judge Pauley denied the motion to dismiss, reasoning that the Plaintiffs had sufficiently pled their "Non GMO" claim by alleging that testing revealed that certain KIND products contained GMOs and the Plaintiffs relied on the "All Natural" and "Non GMO" representations on the KIND packaging in purchasing the products. Judge Pauley also denied the Plaintiffs' motion to lift the stay and stayed prosecution of the "Non GMO" claim until Aug. 15, 2018, in anticipation of the completion of the United States Department of Agriculture's ("USDA's") work on establishing a national GMO standard, which was expected on July 29, 2018. On Aug. 15, 2018, following publication of the USDA's non-GMO standard, the Plaintiffs again moved to lift the stay on both the "Non GMO" and "All Natural" claims. This time, Judge Pauley granted the motion, reasoning that there was no reason to continue the stay on the "Non GMO" claims, and that it was prudent to lift simultaneously the stay on the "All Natural" claims to avoid piecemeal litigation. On Jan. 17, 2020, the Plaintiffs moved to certify three Rule 23(b)(3) damages classes: (1) all persons who purchased the Products in New York for their personal use and not for resale at any time since April 17, 2009; (2) all persons who purchased the Products in California for their personal use and not for resale at any time since April 17, 2011; and (3) all persons who purchased KIND's Products in Florida for their personal use and not for resale at any time since April 17, 2011. The Plaintiffs also sought certification of injunctive classes pursuant to Rule 23(b)(2). On March 24, 2021, Judge Pauley granted the motion to certify the New York, California, and Florida classes, but denied the Plaintiffs' request to certify the injunctive classes. After Judge Pauley's death, the case was transferred to the Court. Thereafter, the parties completed discovery, and the instant motions were filed. The Plaintiffs have abandoned all challenges to the KIND labels, except for their challenge to the "All Natural" claim. Specifically, they now only challenge the "All Natural" portion of the "All Natural/Non GMO" statement that appeared on three of KIND's product lines: KIND Core Bars (nut-based snack bars); KIND Healthy Grain Bars (grain-based snack bars); and KIND Healthy Grain Clusters (non-bar bags of granola). In the ACC, the Plaintiffs offered five definitions relating to the term "natural." Presently before the Court are: (1) the Defendant's motion for summary judgment; (2) the Defendant's motion to decertify the classes; and (3) Daubert motions from both the Plaintiffs and the Defendant to disqualify each of the five experts in the case, who testify in support of and opposition to the motion for summary judgment. First, the Defendant argues that the Plaintiffs fail at the first hurdle because they have failed to demonstrate that the "All Natural" claim on KIND products is deceptive or misleading. Central to its argument is the "reasonable consumer" standard, which requires the Plaintiffs seeking recovery under the various consumer protection statutes at issue in this case to show that a "reasonable consumer would have been misled by the Defendant's conduct." Judge Buchwald turns to the question of whether the Plaintiffs have introduced evidence demonstrating a reasonable consumer's understanding of "All Natural." She finds that the Plaintiffs' persistent failure to consider the challenged claim in the context in which it appeared to consumers undercuts the arguments that they assert regarding how consumers viewed the claim. She also finds that the Plaintiffs have not, prior to the instant motion, articulated before the Court a viable theory for why the challenged KIND products are not within a reasonable consumer's understanding of "All Natural." Having failed to plead a reasonable consumer's understanding of "All Natural," the Plaintiffs must rely on the testimony of Dr. Dennis, who conducted a "consumer perception survey" to meet their burden. Dr. Dennis is experienced as an expert in litigation; he has testified as a survey research expert for over 20 years and estimates that he has testified in approximately 40 cases in the last ten years. The Defendant challenges Dr. Dennis' survey, arguing that it is inadmissible because it is biased and leading, and therefore cannot assist the trier of fact. Dr. Dennis conducted a survey that purports to determine how a reasonable consumer, acting reasonably under the circumstances, understands KIND's "All Natural" claim. He found that 86.4% of consumers selected the option that an "All Natural" product would not contain "artificial or synthetic ingredients." Judge Buchwald holds that Dr. Dennis's perception survey does not assist the trier of fact because it is biased, leading, and to the extent it provides any insight, cannot provide the objective standard necessary to answer the key question. As it cannot assist the trier of fact, the survey and Dr. Dennis' testimony regarding the survey are inadmissible. Even if the Court were to accept the argument that Dr. Dennis's report established a reasonable consumer's understanding of the "All Natural" representation, Judge Buchwald finds that the Plaintiffs' claims would still not survive the motion for summary judgment for the independent reason that they have not shown that any KIND product claiming to be "All Natural" contains "artificial or synthetic" ingredients or any of the chemicals Dr. Dennis listed. The Plaintiffs rely on the expert report of Dr. Anton Toutov to analyze the ingredients in the KIND products to determine if they were consistent with an "All Natural" claim. Dr. Toutov's report was intended to evaluate "whether-scientifically and on a molecular level-the KIND products are in fact 'All Natural.'" He "concluded the Products' labeling was actually false because many of the ingredients could not be accurately characterized as 'natural' as a matter of organic chemistry, using a framework culled from the applicable scholarly literature and regulations." The Defendant challenges Dr. Toutov's expertise and the relevance and reliability of his report. Judge Buchwald finds that Dr. Toutov's report cannot the answer the question that the Plaintiffs have provided his report to answer: Whether the ingredients in the KIND products are not within a reasonable consumer's definition of "All Natural." It cannot assist the trier of fact. Moreover, his report does not apply or reference Dr. Dennis' definitions. Not only does Dr. Toutov apply an irrelevant standard, but large portions of his report apply that standard to irrelevant ingredients. Where Dr. Toutov relies on the typical or usual source of an ingredient, and not the source actually used in KIND products, his opinion has no relevance to the case. As such, Dr. Toutov's opinions cannot assist the trier of fact, and Judge Buchwald grants KIND's motion to preclude his testimony and report. Without the expert testimony of Dr. Dennis, Judge Buchwald holds that the Plaintiffs have not proffered a theory as to how a reasonable consumer would understand the "All Natural" claim on the KIND products. As such, the Defendant succeeds on its motion for summary judgment. Finally, the Defendant has moved to decertify the class. Now that the Plaintiffs have abandoned their "Non GMO" claim and completed discovery, Judge Buchwald finds it clear that they cannot demonstrate that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The Plaintiffs' decision to abandon their "Non GMO" claims eliminates the theory of common proof. Moreover, they have failed to articulate an alternative definition of "All Natural" that is held by reasonable consumers. Instead, they have demonstrated that they each hold a different theory as to why they were deceived. As such, common questions of law or fact no longer predominate. Judge Buchwald therefore decertifies the classes. For the foregoing reasons, Judge Buchwald grants the Defendant's motion for summary judgment is granted, grants its motions to disqualify the opinions of Dr. Dennis and Dr. Toutov, grants its motion to decertify the classes, and denies as moot the remaining motions. The Clerk of Court is respectfully directed to terminate the pending motions and close the case. A full-text copy of the Court's Sept. 9, 2022 Memorandum & Order is available at https://tinyurl.com/y4r23wwu from Leagle.com. METHODIST MCKINNEY: Segovia Files Suit in D. Texas -------------------------------------------------- A class action lawsuit has been filed against Methodist McKinney Hospital, LLC. The case is styled as Paige Segovia and Vicki Lacy, individually and on behalf of all others similarly situated v. Methodist McKinney Hospital, LLC, Case No. 366-05097-2022 (D. Tex., Collin Cty., Sept. 9, 2022). The case type is stated as "All Other Civil Cases." Methodist McKinney Hospital -- https://methodistmckinneyhospital.com/ -- provides patient-focused inpatient and outpatient services to the residents of McKinney, Texas, and surrounding communities.[BN] The Plaintiff is represented by: Jarrett L. Ellzey, Esq. ELLZEY & ASSOCIATES, PLLC 1105 Milford St Houston, TX 77006 Phone: 713-369-5997 Fax: 888-995-3335 Web: https://www.ellzeylaw.com/ MIDLAND CREDIT: Pierre Files Writ of Certiorari with Supreme Court ------------------------------------------------------------------ RENETRICE R. PIERRE filed on August 23, 2022, a petition of writ of certiorari with the U.S. Supreme Court, under Case No. 22-167, seeking a review of the ruling of the United States Court of Appeals for the Seventh Circuit in the case captioned Renetrice R. Pierre, Applicant vs. Midland Credit Management, Inc., Case No. 19-2993. Prior to this, Ms. Pierre asked the Supreme Court to extend the time within which it may file a petition of writ of certiorari to November 7, 2022. The Plaintiff, individually and on behalf of all others similarly situated, brought this class action suit against the Defendant for alleged violation of the Fair Debt Collection Practices Act (FDCPA). Pierre raised two FDCPA claims: (1) a class claim that the Defendant falsely represented the status of the debt, used deceptive means to attempt to collect the debt, and used unfair or unconscionable means to attempt to collect the debt and (2) an individual claim that the Defendant falsely represented the amount of Pierre's debt. The case is styled Renetrice R. Pierre, Plaintiff, v. Midland Credit Management, Inc., Defendant, Case No. 1:16-cv-02895, in the United States District Court for the Northern District of Illinois. As reported in the Class Action Reporter on Sept. 18, 2019, the District Court issued a Memorandum Opinion and Order denying the Defendant's Motion to Dismiss the case. On October 10, 2019, the Defendant appealed the District Court's decision to the United States Court of Appeals for the Seventh Circuit, under Case No. 0:19-cv-02993. On October 24, 2019, the Plaintiff also filed its appeal from the District Court's decision to the Seventh Circuit, which was assigned Case No. 0:19-cv-03109. On April 1, 2022, the Seventh Circuit vacated the District Court judgment and remanded with instructions to dismiss the case for lack of subject-matter jurisdiction. On June 8, 2022, Chief Judge Sykes of the Seventh Circuit denied Appellee Renetrice R. Pierre's (in Case. No. 19-2993), and Appellant Renetrice R. Pierre's (in Case No. 19-3109) Petition for Rehearing and Petition for Rehearing Enbanc. [BN] Plaintiff-Applicant RENETRICE R. PIERRE is represented by: Gregory Jacob Dubinsky, Esq. HOLWELL SHUSTER & GOLDBERG, LLP 425 Lexington Avenue, 14th Floor New York, NY 10017 E-mail: gdubinsky@hsgllp.com MONTEREY FINANCIAL: Brinkley's Bid for Class Certification Denied ----------------------------------------------------------------- In the lawsuit titled TIFFANY BRINKLEY, Plaintiff v. MONTEREY FINANCIAL SERVICES, LLC, Defendant, Case No. 16-CV-01103-RSH-WVG (S.D. Cal.), Judge Robert S. Huie of the U.S. District Court for the Southern District of California issued an order denying: (1) Plaintiff Tiffany Brinkley's Motion to Certify Class; and (2) Defendant Monterey Financial Services, LLC's Motion to Preclude Portions of Jeffrey Hansen's Expert Report. The case arises from a series of eight telephone calls that the Plaintiff had with the Defendant's representatives between December 2012 and March 2013. The Plaintiff claims that the Defendant recorded these calls without her knowledge or consent, in violation of California law. The Second Amended Class Action Complaint ("SAC"), filed on Dec. 10, 2018, is the operative pleading and describes one class and one sub-class that the Plaintiff seeks to represent. In the SAC, the Plaintiff alleged two causes of action: (1) invasion of privacy under California Penal Code Section 632 and Washington Revised Code Section 9.73.030(1)(a) on behalf of the Plaintiff and the Class, and (2) unlawful recording of telephone calls under California Penal Code Section 632.7 on behalf of the Plaintiff and the Subclass. On May 6, 2019, upon the Defendant's motion, the Court dismissed the Plaintiff's claim under Washington Revised Code Section 9.73.030(1)(a). The action proceeded with the Plaintiff's claims under California law only (hereinafter, "section 632" or "section 632.7" claims). On Sept. 3, 2019, the Defendant moved for summary judgment on the remaining claims. Among other things, the Defendant argued that summary judgment was appropriate because the Plaintiff's challenged calls were not "confidential communications" under section 632, and the Plaintiff had consented to monitoring or recording. The eight calls at issue took place on Dec. 19, 2012; Jan. 25, 2013; Jan. 28, 2013; Feb. 11, 2013; Feb. 14, 2013; Feb. 26, 2013; Feb. 27, 2013; and March 6, 2013. On six of the eight calls, including the first four calls, the Defendant provided a disclosure that the call would be monitored or recorded (the "Disclosure"). Further, on all eight calls--except when the Plaintiff was placed on hold, listening to a voicemail greeting or leaving a message--a "beep tone" played every 15 seconds. The Court denied the Defendant's motion, concluding that factual disputes existed with respect to two of the Plaintiff's calls: an outgoing call from the Defendant to the Plaintiff on Feb. 14, 2013 (the fifth call between the Plaintiff and the Defendant), and an incoming call from the Plaintiff to the Defendant requesting a transfer to a particular representative on March 6, 2013 (the eighth call). The Disclosure was not provided to the Plaintiff on either of those two calls. On Jan. 10, 2020, the Defendant filed a motion for reconsideration of the Court's Sept. 13, 2018 Order granting in part and denying in part its motion to dismiss the Plaintiff's First Amended Complaint. In this motion, the Defendant argued that the Plaintiff's section 632.7 claim should be denied with prejudice given an intervening change in controlling law from the California Court of Appeal (Smith v. LoanMe, Inc., 43 Cal. App. 5th 844, 853 (Cal. Ct. App. 2019)). On April 3, 2020, the Plaintiff filed a notice informing the Court that the California Supreme Court granted the petition for review of the decision. Beginning on April 21, 2020, the instant matter was stayed for almost a year pending the California Supreme Court's resolution of Smith v. LoanMe, Inc. The decision, which was issued on April 1, 2021, ultimately reversed the Court of Appeal and held that section 637.2 is a general prohibition against the intentional recording of a covered communication without the consent of all parties, regardless of whether the recording is performed by a party to the communication or by someone else. The Parties recognized that the Court's Sept. 13, 2018 order was not affected by this outcome. Discovery resumed. On April 21, 2021, the Plaintiff notified the Court of her intention to file a motion for class certification and propound further written discovery and, to that end, take additional depositions of the Defendant's witnesses. Almost one year later, on April 7, 2022, the Plaintiff brought the present motion to certify class. This matter was since transferred to the Judge Huie on July 24, 2022. Motion for Class Certification The Plaintiff seeks to maintain the class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure, which requires the Court to find that the common questions predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The relevant factors in the 23(b)(3) inquiry include the class members' interest in individually controlling the litigation, other litigation already commenced, the desirability (or not) of consolidating the litigation in this forum, and manageability. The Plaintiff seeks the certification of one class and two sub-classes, arising out of alleged violations of section 632.7, from Oct. 15, 2012, through Feb. 28, 2018 ("Class Period"): * All persons who made one or more telephone calls with Defendant while using a cellular radio telephone as such term is defined in Cal. Penal Code Section 632.7(c)(1), during the Class Period and did not receive notice at the beginning of the call that their telephone conversion may be recorded or monitored (the Class); * All persons who received one or more telephone calls from Defendant during the Class Period that were recorded and did not receive notice at the beginning of the telephone call that their telephone conversion may be recorded or monitored (the Persons Who Received Calls from Defendant Sub-Class); and * All persons who made one or more telephone calls to Defendant during the Class Period that was recorded and did not receive notice at the beginning of the telephone call that their telephone conversation may be recorded or monitored (the Persons Who Called Defendant Sub-Class). The Parties do not dispute that the proposed class members are ascertainable, sufficiently numerous, or that the proposed class and sub-classes have adequate representation. Instead, the Defendant challenges class certification on the remaining factors--typicality, commonality, predominance, and superiority. Although the Court finds that the Plaintiff has demonstrated commonality, the Plaintiff has failed to meet her burden of establishing typicality or predominance, Judge Huie says. Because each of these deficiencies is fatal to the Plaintiff's motion for class certification, the Court does not reach an analysis of superiority. Judge Huie notes that the Plaintiff provides a non-exhaustive list of seven common questions of law and fact. In particular, the Court finds that there is a common legal question of whether the Defendant's failure to provide the Disclosure, or other verbal notice of recording, at the outset of the call violated section 632.7. Judge Huie finds that this satisfies the permissive standard for commonality. The Court also finds that the Plaintiff's particular factual situation requires her to meet a defense (implied consent) that is not typical of the defenses, which may be raised against other members of the proposed class and sub-classes. The Parties do not dispute that the Plaintiff had multiple interactions with the Defendant, including emails with the Defendant outside the calls at issue. The Disclosure played on six of the eight calls, including the first four calls she made, but she continued to make calls to the Defendant. In fact, by the time of her second call without the Disclosure on March 6, 2013, the Plaintiff had placed six calls with the Defendant where the Disclosure played. Given the extensive briefing regarding the issue of implied consent, Judge Huie opines that it is predictable that a major focus of the litigation will be on a defense unique to the Plaintiff. Thus, the Plaintiff fails to meet her burden of satisfying the typicality requirement of Rule 23(a). For the same reasons related to implied consent defense, the Court finds that the Plaintiff cannot satisfy the predominance factor. To rebut the Defendant's argument that consent is an individualized inquiry, the Plaintiff relies on three cases: Zaklit v. Nationstar Mortg. LLC, No. 515CV2190CASKKX, 2017 WL 3174901 (C.D. Cal. July 24, 2017); Raffin v. Medicredit, Inc., No. CV154912GHKPJWX, 2017 WL 131745 (C.D. Cal. Jan. 3, 2017); and Steven Ades & Hart Woolery v. Omni Hotels Mgmt. Corp., No. 2:13-CV-02468-CAS, 2014 WL 4627271 (C.D. Cal. Sept. 8, 2014). However, the Court finds that those cases are readily distinguishable from the instant case or support denial of class certification. Consistent with the cases, the Court finds that individual issues of consent--based on the nature, extent, and frequency of putative class members' phone calls prior to the first call that was recorded without the Disclosure--predominate over common issues. Thus, Judge Huie holds that the Plaintiff has not met her burden of showing predominance. Because the predominance requirement is not satisfied, the Court need not reach the superiority analysis under Rule 23(b). Exclusion of Expert Report and Evidentiary Objections In addition, the Defendant moves to exclude the expert report of Jeffrey Hansen. Because the Court does not rely on Jeffrey Hansen's report to reach its conclusion on the motion for class certification, the Defendant's motion is denied as moot. Similarly, the Court does not rely on the Declaration of Wayne Hutchins, submitted in support of the Defendant's opposition to the Plaintiff's motion for class certification. As such, the Plaintiff's evidentiary objections to the Hutchins declaration are overruled as moot. For these reasons, the Court denies the Plaintiff's Motion for Class Certification, and the Defendant's Motion to Preclude Portions of Jeffrey Hansen's Expert Report. A full-text copy of the Court's Order dated Sept. 8, 2022, is available at https://tinyurl.com/mw78hkw8 from Leagle.com. MYXED UP CREATIONS: Loadholt Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Myxed Up Creations, Inc. The case is styled as Christopher Loadholt, on behalf of himself and all others similarly situated v. Myxed Up Creations, Inc., Case No. 1:22-cv-07708 (S.D.N.Y., Sept. 9, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Myxed Up -- https://myxedup.com/ -- is a one-stop shop for the finest selection of local and national hand blown glass pipes and water pipes.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com NABORS COMPLETION: Judgment Entered in Negrete Unpaid Wage Suit --------------------------------------------------------------- In the case, MATHEW NEGRETE, Petitioner v. NABORS COMPLETION & PRODUCTION SERVICES CO., a Delaware corporation, now known as C&J Well Services, Inc., Respondent, Case No. 2:22-cv-03390-DDP-JPR (C.D. Cal.), Judge Dean D. Pregerson of the U.S. District Court for the Central District of California enters Judgment following order confirming Final JAMS Arbitration Award. On April 2, 2015, two former employees of NABORS, Brandyn Ridgeway, and Tim Smith, filed a putative class action alleging, among other things, claims under Labor Code Section 1194(a) and 1771 for failure to pay the minimum prevailing wage and overtime, under Labor Code Section 226(e) for failure to provide accurate itemized wage statements under Labor Code Section 226(a), and for related interest and penalties, as well as attorneys' fees and costs, (CACD Case No. 2:15-cv-03436-DDP-VBKx; "Ridgeway class action"). On June 29, 2015, NABORS brought a motion to compel arbitration of Ridgeway and Smith's individual claims pursuant to 9 U.SC. Section 2, the Federal Arbitration Act ("FAA") and a written arbitration agreement that included a class action waiver. On Oct. 13, 2015, the Court Court denied NABORS' motion to compel arbitration, finding the arbitration agreement unenforceable. NABORS timely appealed the denial of its motion to compel arbitration. On Feb. 13, 2018, the Ninth Circuit Court of Appeal issued a Memorandum which reversed the Court's order denying the motion and remanded with instructions. On March 30, 2018, Petitioner Negrete, a putative class member in the Ridgeway class action, commenced an individual arbitration at JAMS. Negrete's individual claims were adjudicated by JAMS Arbitrator Deborah Crandall Saxe, Esq. resulting in an Interim Award issued Feb. 22, 2022 and a Final Arbitration Award issued May 4, 2022, in favor of Negrete. On May 19, 2022, Negrete filed the instant Petition to Confirm Final Arbitration Award, For Further Attorneys' Fees and Costs, and to Enter Judgment Against Nabors; Nabors appeared, filed an answer and filed a crossclaim to vacate the Final Award. On Sept. 7, 2022, the Court granted Negrete's motion and confirmed the Final JAMS Arbitration Award issued by Arbitrator Deborah Crandall Saxe, Esq. on May 4, 2022, in the Arbitration JAMS Case No. 1220058997 and denied NABORS' request to vacate the award. Therefore, Judge Pregerson orders that Negrete will recover against NABORS in the following amounts: $68,081.61 in damages, including statutory interest continuing after Nov. 19, 2021, and continuing at $22.97 per day on the unpaid wages and interest at the rate of 10% per annum until paid; $800 in statutory penalties under California Labor Code Section 226(e); $214,436.10 in attorneys' fees; and $2,448.25 in costs as awarded by the Arbitrator; and additional post-arbitration attorneys' fees in the amount of $8,149.50 and for costs in the amount of $402. A full-text copy of the Court's Sept. 7, 2022 Judgment is available at https://tinyurl.com/ms67udn8 from Leagle.com. Richard E. Donahoo -- rdonahoo@donahoo.com -- Sarah L. Kokonas -- skokonas@donahoo.com -- R. Chase Donahoo, DONAHOO & ASSOCIATES, Tustin, CA. NATIONAL AVC: Olson Wage-and-Hour Suit Removed to S.D. California ----------------------------------------------------------------- The case styled CHELSEA OLSON, individually and on behalf of all others similarly situated v. NATIONAL AVC, LLC DBA THRIVE PET HEALTHCARE; and DOES 1 through 10, inclusive, Case No. 37-2022-00030058-CU-OE-CTL, was removed from the Superior Court of California, County of San Diego, to the U.S. District Court for the Southern District of California on September 13, 2022. The Clerk of Court for the Southern District of California assigned Case No. 3:22-cv-01393-L-AGS to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Unfair Competition Law including failure to pay minimum and straight time wages, failure to pay overtime wages, failure to provide meal periods, failure to provide rest periods, failure to pay all wages due at the time of termination of employment, failure to provide accurate itemized wage statements, failure to indemnify employee expenditures, and unfair competition. National AVC, LLC, doing business as Thrive Pet Healthcare, is an operator of a veterinary clinic, headquartered in Austin, Texas. [BN] The Defendant is represented by: Margaret Rosenthal, Esq. Vartan S. Madoyan, Esq. Matthew J. Goodman, Esq. BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: (310) 820-8800 Facsimile: (310) 820-8859 E-mail: mrosenthal@bakerlaw.com vmadoyan@bakerlaw.com mgoodman@bakerlaw.com NELNET SERVICING: Freeman Sues Over Failure to Protect PII ---------------------------------------------------------- Kennedy Freeman, and Aaron Morris, individually, and on behalf of all others similarly situated v. NELNET SERVICING, LLC, Case No. 4:22-cv-03197-JMG-CRZ (D. Neb., Sept. 12, 2022), is brought on behalf of all persons whose PII was compromised as a result of Defendant's failure to: adequately protect consumers' personally identifiable information ("PII"), adequately warn its current and former customers and potential customers of its inadequate information security practices, and effectively monitor its platforms for security vulnerabilities and incidents. On August 26, 2022, the Defendant began publicly acknowledging and writing to affected persons that it had been the recipient of a hack and exfiltration of PII, including sensitive personal information ("SPI") such as Social Security numbers, involving more than 2,500,000 individuals whose student loans are serviced by the Defendant's customers (the "Data Breach"). Notably, the Defendant did not appear to report exactly when the Data Breach occurred other than noting that it possibly occurred in June or July 2022. It began to notify its clients OSLA and Edfinancial of the Data Breach on or around July 21, 2022.the Defendant reported that this PII included Social Security numbers, names, addresses, email addresses, and telephone numbers, allowing Social Security Numbers to be matched to individuals with great specificity. The Plaintiff and Class members now face a present and imminent lifetime risk of identity theft, which is heightened here by the loss of Social Security numbers. The Plaintiffs' and Class members' PII was compromised due to the Defendant's negligent and/or careless acts and omissions and the failure to protect the PII of the Plaintiffs and Class members, says the complaint. The Plaintiffs were informed via letter dated August 26, 2022 that they had been victims of the Data Breach. The Defendant provides technology and web-based services to student loan servicers, notably OSLA and Edfinancial.[BN] The Plaintiff is represented by: Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 111 W. Jackson Street, Suite 1700 Chicago, IL 60604 Phone: (312) 984-0000 Fax: (212) 686-0114 Email: malmstrom@whafh.com - and - Rachele R. Byrd, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 1820 San Diego, CA 92101 Phone: (619) 239-4599 Fax: (619) 234-4599 Email: byrd@whafh.com NEW ZEALAND: High Court Approves Homeowners' Class Action --------------------------------------------------------- Grant Shand, writing for Scoop Independent News, reports that the way may soon be clear for "On-Sold" homeowners to access a cash payment from EQC without the stringent conditions previously in place. More than 50,000 homeowners bought earthquake damaged homes they believed were properly repaired by EQC following the Canterbury earthquakes. Many of these homeowners subsequently found they were not properly repaired and applied for the Government On-Sold programme which has stringent conditions for the homeowner, including tranche payments and a covenant on the land title until works are completed. The High Court has ruled that a class action can be taken against EQC to receive a cash payment rather than being forced to repair or rebuild the home as required by the Government On-Sold programme which is administered by EQC. Leading insurance lawyer, Grant Shand, who took the case that has resulted in the courts opening this pathway for a class action, says a significant number of homeowners will be pleased by this decision. "Many homeowners do not want to go through the stress and extended time it will take to complete repairs, and these will be extensive repairs given they are over the EQC cap," he says. "Some may be looking to move to a retirement home, some to relocate to be with family elsewhere; there are many reasons the Government On-sold programme is not appropriate for affected homeowners." Mr Shand says he is aware of several cases where people have gone to sell their home that was repaired by EQC, only to find there are serious issues with that repair and the house can't be sold. "One of these involved a couple in their late 80's. No-one but especially older people ready to move to the next stage of their lives, should have to spend their precious time fixing an issue that was created by EQC," he says. The class action requires claimants to "opt in" and people can do that in the next couple of months when a judge decides how that process will work. In the meantime Mr Shand is encouraging people to register their interest in the class action, which is being supported by litigation funder, Canterbury Litigation Funding Ltd. If claimants are due any amount from EQC as a result of this class action, the litigation funder will deduct a fee of up to 15% (including GST) of any settlement monies received or judgment sum awarded. Claimants will not be asked to pay any money up front or pay for a share of any costs – it's simply a deduction of up to 15% (including GST) from any amount you are entitled to receive once the class action is resolved. Members of the class action will have no liability for legal or court costs if the class action is unsuccessful. "With the delays currently being experienced as a result of the building material shortages and other pressures on key people such as engineers and builders, being able to receive a cash payment and move on, I believe is going to be a very attractive option to many," says Mr Shand. Interested claimants can go here or paste this in their browser www.eqconsold.co.nz For more information please contact Ali Jones on 027 247 3112 Frequently Asked Questions How much will it cost me to join this EQC On-Sold class action? Nothing. If you are due any amount from EQC as a result of this class action, the litigation funder will deduct a maximum fee of 15% (including GST) of any settlement monies received or judgment sum awarded. You will never be asked to pay any money up front or pay for a share of any costs - it's simply a deduction of up to 15% (including GST) from any amount you are entitled to receive once the class action is resolved. You will not pay any legal fees. Members of the class action will have no liability for legal or court costs if the class action is unsuccessful. The class action is funded by Canterbury Litigation Funding Limited, and as well as completing an 'opt in' form you will also need to complete a litigation funding agreement at the same time. When can I opt into this class action? The High Court needs to approve the format of the opt in form as well as the content of any communications with potentially affected homeowners. It is expected that the High Court will approve these within the next 2 months, however, it could be sooner if EQC agree to the format and content currently proposed. How much money will I get? It is not possible at this stage to provide any specific figure on what you could expect to receive. This is due to a variety of factors that are unique to each homeowner's situation (for example how much EQC has already paid, the extent of the additional damage that is required to be repaired, etc). What are the chances for success for the EQC On-sold class action? Our team is reasonably confident that the case has merit, however, litigation is, by its very nature, inherently risky and it is not possible to predict the outcome, or how long the case may take to be finally resolved. The on-sold claims obviously have some merit, otherwise the Government/EQC would not have introduced its policy/scheme to pay money. What are the benefits of a class action? Running each individual claim through the courts would be costly and time consuming. Being able to combine class member's claims that involve common questions of fact and law, reduces the average cost of litigation by only addressing the common issues once at trial, instead of multiple times. There is also no risk to each claimant. Does it cost anything to register? No, it costs nothing to register. Doesn't the Government On-sold programme resolve these claims? EQC says it does. No. The Government On-sold programme has eligibility criteria that must be met and it is also optional. Many homeowners will have reasons for not wanting to be part of the Government On-sold programme. Many homeowners will not want to go through the stress and extended time it will take to complete repairs (and these will be extensive repairs given they are over the EQC cap) - some may be looking to move to a retirement home, some to relocate to be with family elsewhere - there are many reasons the Government On-sold programme would not be appropriate for many affected homeowners. They should not have to spend their precious time fixing an issue that was created by EQC. What happens to homeowners in the Government On-sold programme who opt into this class action? We are talking to EQC about what is to happen. EQC has previously stated that Government On-sold applications may be declined or discounted where applicants pursue litigation against EQC after 15 August 2019. It is hoped that EQC would not decline or discount any applications from the Government On-sold policy simply because homeowners would prefer to have their claim against EQC resolved one way (by payment) over another (being repaired). Pending the outcome of the primary claim under this class action it is hoped that EQC would place any application to the Government On-sold programme on hold and not once again disadvantage these On-sold homeowners. Regardless of EQC's thoughts, it is expected this is a decision for the Government to make given the Government On-sold programme is a Government led initiative and EQC only administer it on their behalf. Will registering mean I become a client of Grant Shand Barristers & Solicitors? No, registration will not make you a client of Grant Shand Barristers & Solicitors. It simply provides a way to keep you informed about developments and the progress of the class action. [GN] NINTENDO OF AMERICA: California Court Dismisses Sanchez Class Suit ------------------------------------------------------------------ In the case, LUZ SANCHEZ, DOLLY VIERRA, M.S., a minor, and A.D., a minor, on behalf of themselves and all persons similarly situated, Plaintiffs v. NINTENDO OF AMERICA INC., Defendant, Case No. C 20-06929 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California grants the Defendant's motion to dismiss for lack of standing. The putative class action is about an allegedly defective video game system. As alleged, the Nintendo Switch was a video game console. It came with two hand-held controllers, "Joy Cons," which had joysticks, buttons, and haptics, allowing users to control the movements of their avatars. At all material times, the Switch and Joy Cons, working as a unit, allegedly harbored a defect, which caused the on-screen avatar to move without direction from the player. This caused it to "drift" in various directions. The avatar's random veering grew worse over time. After about a year, the Switch became unusable, or so the complaint alleges. At set up, Nintendo required consent to an End User License Agreement (EULA), which contained arbitration and forum-selection clauses. The product's packaging stated that users agreed to the EULA and pointed readers to the website for the agreement's terms. The Plaintiffs, two parents and two minor children, have used their free amendment. The amended complaint claims a nation-wide class with "thousands" of members, over five million in damages, and injury under California's Unfair Competition Law, California Business and Professions Code Section 17200; California Consumers Legal Remedies Act, California Business and Professions Code Section 1750, et seq.; the Song-Beverly Consumer Warranty Act for Breach of Implied Warranty of Merchantability; and unjust enrichment. It also seeks a declaratory judgment that minor plaintiffs may disaffirm the EULA on behalf of all minors in the putative class. Early in the case, the Defendant moved to transfer under the Federal Arbitration Act, 9 U.S.C. Section 4 (on account of a forum-selection clause in the EULA), 28 U.S.C. Section 1404(a) (interests of justice), and, in the alternative, to dismiss under Rule 12(b)(1) (standing), 12(b)(3) (venue), and 12(b)(6) (failure to state a claim). With their opposition, the Plaintiffs' counsel attached four declarations, one from each plaintiff. At oral argument, an oral order sent the case to arbitration on the issue of the delegation clause's compulsory effect. An arbitration panel determined that claims by the parents, Dolly Vierra and Luz Sanchez, had to proceed in arbitration but that Plaintiffs A.D. and M.S. were not bound. There is no agreement between Nintendo and the Minors. Because the Minors were never parties to the EULA or bound by its arbitration provision, Judge Alsup need not decide what law would govern the Minors' avoidance of contractual obligations under the EULA. Nor does he need to determine whether the Minors misrepresented their ages, or whether any contractual obligations of the Minors were avoided or disaffirmed within a reasonable time. The minors have returned for litigation. At the status conference on March 31, 2022, both sides agreed that the fully-briefed motion to dismiss for lack of standing stood ripe for resolution. Judge Alsup now reaches the motion to dismiss the minors' claims for lack of standing. Preliminarily, he explains that the arbitration panel's decision has certain implications for the action: with former-plaintiffs Sanchez and Vierra bound to arbitrate, he stays the action as to Sanchez and Vierra. The arbitration panel has already found that the minors were never party to the EULA. Any motion to dismiss the minors' declaratory judgment claims is denied as moot. Next, Judge Alsup resolves two issues related to the pleadings. First, he does not consider the opposition declarations of the parents or the minors, as the Plaintiffs request. Under a factual attack, the district court may consider evidence beyond the complaint. The Defendant's motion, however, is "limited to the allegations in the complaint," thus represents a facial attack. Therefore, Judge Alsup may only consider the amended complaint; "material submitted as part of the complaint or relied upon in the complaint;" and "material subject to judicial notice." He says the declarations do not qualify under any exception. He cannot consider them on this motion. Second, the Plaintiffs' counsel declare that they made a scrivener's error when they pleaded, "Plaintiffs Luz Sanchez and Dolly Vierra 'purchased the Nintendo Switch console for personal, family, and household use.'" They meant "or household use." This would represent a substantive change. Adding "or" is possibly intended to conform the pleading to the text of the CLRA. Judge Alsup declines to accept such an amendment by declaration. Turning to the complaint, Judge Alsup finds that the minor plaintiffs have not alleged "the irreducible constitutional minimum of standing," which is their burden. The Plaintiffs argue that Vierra and Sanchez transferred ownership to M.S. and A.D., thus conferring a property interest to them. The complaint does not allege as much. Crucially, the Plaintiffs have cited no authority in which users suffered an injury-in-fact from a defective product that they did not own. An independent search also yielded none. Nor has the court of appeals spoken to this precise issue. The minors simply used the consoles. They had no right to sell them. Therefore, the minors could not suffer reduced resale value. Similarly, a husband's "pecuniary interest" in stock owned with his wife, but held in her name, did not confer him Article III standing in a securities suit. Judge Alsup holds that the complaint does not adequately allege the gift and thus cannot state injury-in-fact as to the minors. To be clear, he does not hold that if the complaint were to adequately allege the gift, the minors could boast Article III or statutory standing. To the extent stated, the motion to dismiss is granted. Finally, in a single footnote, the "Plaintiffs respectfully request leave to amend to clarify their standing under the FAL." But they offer neither argument nor proposed amendment, i.e., nothing on which Judge Alsup can evaluate their motion. Hence, motion for leave is denied. Based on the foregoing, Judge Alsup grants the motion to dismiss. He denies the Plaintiff's one-line motion for leave to amend. BY Sept. 29, 2022, at noon, the Plaintiffs may again seek leave to amend the dismissed claims by motion noticed on a normal 35-day calendar. They must plead their best case. Any motion should affirmatively demonstrate how the proposed complaint corrects the deficiencies identified in the Order, as well as all other deficiencies raised in the Defendant's motion but not addressed. Any motion should be accompanied by a redlined copy of any proposed amendment. A full-text copy of the Court's Sept. 7, 2022 Order is available at https://tinyurl.com/33kjabjs from Leagle.com. NIO INC: Pomerantz LLP Reminds of Oct. 24 Lead Plaintiff Deadline ----------------------------------------------------------------- Pomerantz LLP on Sept. 13 disclosed that a class action lawsuit has been filed against NIO, Inc. ('NIO' or the 'Company') (NYSE:NIO) and certain of its officers. The class action, filed in the United States District Court for the Southern District of New York, and docketed under 22-cv-07666, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired NIO securities between August 20, 2020 and July 11, 2022, inclusive (the 'Class Period'). Plaintiff pursues claims against the Defendants under the Securities Exchange Act of 1934 (the 'Exchange Act'). If you are a shareholder who purchased or otherwise acquired NIO securities during the Class Period, you have until October 24, 2022 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. NIO designs, develops, manufactures, and sells smart electric vehicles. It purports to differentiate itself through technological breakthroughs and innovations, such as its battery swapping technologies (i.e., Battery as a Service) and proprietary autonomous driving technologies, including Autonomous Driving as a Service. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that NIO pulled forward revenue by selling batteries to a related party, which owned the batteries and managed users' subscriptions; (2) that, through the related party, NIO also recognized enormous depreciation savings; (3) that, as a result of the foregoing, the Company's revenue and net loss were overstated; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On June 28, 2022, Grizzly Research published a report alleging, among other things, that NIO inflated its net income by about 95% through sales to a related party, Wuhan Weineng Battery Asset Co. On this news, the Company's American Depositary Shares fell $0.59, or 2.5%, to close at $22.36 per share on June 28, 2022, on unusually heavy trading volume. Then, on July 11, 2022, NIO announced that it formed a special committee to oversee an investigation into the allegations in the Grizzly Research report. On this news, the Company's shares fell $2.03, or 8.9% to close at $20.57 per share on July 11, 2022, on unusually heavy trading volume. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomlaw.com [GN] NORTH EAST FOUNDATION: Vazquez Sues Over Unpaid Overtime Wages -------------------------------------------------------------- Arturo Rendon Vazquez, Angel Arana, and Rafael Leal Najera, individually and on behalf of all others similarly situated v. NORTH EAST FOUNDATION LLC and JAMES COPPOLA, as an individual, Case No. 1:22-cv-05438 (E.D.N.Y., Sept. 12, 2022), is brought under the Fair Labor Standards Act and the New York Labor Law to recover damages for the Defendants' egregious violations of state and federal wage and hour laws arising out of the Plaintiff's employment with the Defendants by willfully failing and refusing to pay required overtime wages. Although the Plaintiffs regularly worked 40 or more hours each week, the Defendants did not pay the Plaintiffs at a wage rate of time and a half for his hours regularly worked over 40 hours in a work week, a blatant violation of the overtime provisions contained in the FLSA and NYLL, says the complaint. The Plaintiffs worked for the Defendants as carpenters. NORTH EAST FOUNDATION LLC is a New York domestic business corporation.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80—02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Phone: 718-263-9591 Fax: 718-263-9598 NORTH HIGHLAND COMPANY: Briggs Files Suit in N.D. Georgia --------------------------------------------------------- A class action lawsuit has been filed against The North Highland Company. The case is styled as Michael Briggs, on behalf of himself and all others similarly situated v. The North Highland Company, Case No. 1:22-cv-03640-SCJ (N.D. Ga., Sept. 9, 2022). The nature of suit is stated as Other P.I. for Breach of Fiduciary Duty. North Highland -- https://www.northhighland.com/ -- is a worldwide management consulting firm focused on change and transformation established in 1992, and is a founding member of Cordence Worldwide.[BN] The Plaintiff is represented by: Jared William Connors, Esq. Matthew Ryan Wilson, Esq. Michael Joseph Boyle, Jr., Esq. MEYER WILSON CO., LPA 305 W. Nationwide Blvd. Columbus, OH 43215 Phone: (630) 224-6000 Email: jconnors@meyerwilson.com mwilson@meyerwilson.com mboyle@meyerwilson.com - and - Samuel J. Strauss, Esq. TURKE & STRAUSS, LLP 613 Williamson Street, Suite 201 Madison, WI 53703 Phone: (608) 237-1775 Fax: (608) 509-4423 Email: sam@turkestrauss.com NORTHSIDE ISD: Court Dismisses Lartigue Class Suit With Prejudice ----------------------------------------------------------------- Judge Jason Pulliam of the U.S. District Court for the Western District of Texas, San Antonio Division, dismisses KAYLEE LARTIGUE, Plaintiff v. NORTHSIDE INDEPENDENT SCHOOL DISTRICT, Defendant, Case No. SA-19-CV-00393-JKP (W.D. Tex.), with prejudice. The action was initiated as a putative class action brought by parents of NISD students with hearing impairments. The parents originally sued under the Individuals with Disabilities Act (IDEA), Title II of the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, Title VI of the Civil Rights Act of 1964, the United States and Texas Constitutions, and Chapter 121 of the Texas Human Resources Code. Jose and Linda Lartigue moved to sever their case and opt-out of the class action on behalf of their daughter, Kaylee Lartigue, because she no longer attended an NISD school. All other plaintiffs settled with the School District and the Lartigues were the sole remaining plaintiffs. In addition to this lawsuit, the Lartigues pursued an administrative hearing before the Texas Education Agency, in which a hearing officer ultimately found the School District met IDEA requirements. In this case, the Lartigues amended their complaint twice, abandoning their IDEA claim, revising their requested remedies, and changing the caption to sue under Kaylee Lartigue's name when she reached the age of majority. The School District moved to dismiss Lartigue's case, and the Court granted the motion in part and denied it in part, leaving Lartigue's ADA claim as her sole remaining claim. The School District then moved for summary judgment on Lartigue's ADA claim. The Court held the School District's motion in abeyance while the parties attempted to settle the case. They were unsuccessful, so the Court considered NISD's motion, denied it, and scheduled the case for trial. The School District then attempted to file a Federal Rule of Civil Procedure 59(e) Motion for Reconsideration. It was unable to timely file its motion because the Court's electronic filing system was undergoing system maintenance, so it sought leave to file late. The Court responded by text order mooting the School District's request, noting that because it had entered no judgment in the case, NISD's motion was properly filed under Federal Rule of Civil Procedure 60(b) and was not untimely. Both parties provided briefings on NISD's motion, and the Court set a status conference to discuss the motion and assess whether additional mediation would be helpful. During the status conference, Lartigue's counsel expressed interest in mediation but the School District was not prepared to discuss mediation until the Court had ruled on its motion. The parties then provided oral argument on the School District's motion and responded to questions from the Court. Based on information raised in the status conference, the Court sought additional briefing from the parties, under Federal Rule of Civil Procedure 56(f), on two potentially dispositive legal questions: (1) whether Lartigue had a valid, stand alone ADA claim, and (2) whether Lartigue's recovery was barred by the Supreme Court's recent decision in Cummings v. Premier Rehab Keller, 142 S.Ct. 1532 (April 28, 2002). It received written briefs from both sides and scheduled a motion hearing to hear oral argument. At the conclusion of that hearing, the Court issued its decision denying the School District's motion as to its original argument, but granting the School District relief based on the parties' subsequent briefings filed under Federal Rule 56(f). Specifically, it determined that Lartigue could not demonstrate that she had a valid, stand alone ADA claim, and the School District was therefore entitled to judgment as a matter of law. Because that finding resolves the case, the Court did not reach the question of what effect the Cummings decision would have. The present written opinion follows and explains the Court's ruling. The School District argues that the Court should have relied on the administrative hearing officer's determination that the School District met IDEA requirements to preclude Lartigue's ADA claim. To support this premise, it cites the Fifth Circuit finding that "to establish a claim for disability discrimination, in the education context, 'something more than a mere failure to provide the 'free appropriate education' required by IDEA must be shown.'" The Court notes that it relied on Estate of Lance in a February 2022 decision, in which it dismissed a plaintiff's ADA claim after affirming a hearing officer's finding that the school district complied with IDEA requirements, ciiting R.B. v. NEISD, No. SA-20-CV-01441-JKP, 2022 WL 488500 (W.D. Tex. Feb. 16, 2022). In that case, it found that "when a plaintiff asserts an original cause of action under the ADA in the same administrative appeal under the IDEA, the court should decide the IDEA claims first and, if it finds in favor of the school district, apply an issue-preclusion type analysis to bar re-litigation of the same facts and issues." Judge Pulliam opines that the case at bar is distinguishable, however, from R.B. v. NEISD because Lartigue has no IDEA claim. In other words, the Court cannot apply an issue-preclusion analysis to Lartigue's ADA claim because it has not affirmed the hearing officer's IDEA decision -- nor does it have the opportunity to do so. Therefore, Judge Pulliam rejects NISD's argument that it misapplied Fifth Circuit precedent. The case is distinguishable from the cases upon which the School District relies. His consideration of the School District's issue preclusion argument, however, raised a separate, related issue which does dispose of this case. That question is whether Lartigue had a valid, stand alone ADA claim -- or if she essentially tried to resurrect the IDEA claim that she abandoned by repackaging it as an ADA claim. The Supreme Court explained in Fry v. Napoleon Community Schools that a plaintiff could have separate, actionable claims under the IDEA and the ADA; however, plaintiffs cannot evade IDEA's statutory limitations through artful pleading. The issue in Fry was whether the plaintiff was required to satisfy IDEA exhaustion requirements before suing in federal court under the ADA. The Supreme Court held that exhaustion is required "when the gravamen of the complaint seeks redress for a school's failure to provide a FAPE [free appropriate public education], even if not phrased or framed in precisely that way." Fry's holding does not directly apply to this case because Lartigue has exhausted administrative remedies; however, its reasoning does apply. If the gravamen of Lartigue's complaint is denial of a FAPE, she has no stand alone ADA claim. Judge Pulliam opines that as the School District notes, all of the accommodations that Lartigue claims the School District failed to provide were in some way associated with its obligation to provide a FAPE. Applying the Fry analysis, a plaintiff probably could not have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school. High school debate competitions, while extracurricular in nature, are undeniably part of a student's academic experience. Similarly, an adult at the school could not have pressed the same grievance. Adults are not invited to participate in high school debate competitions and would therefore have no need to request accommodations to do so. Finally, Lartigue did raise her CARTS request in her administrative hearing -- and the hearing officer found the School District's response to her request to be consistent with its FAPE obligations -- before abandoning her IDEA claim in federal court. This "midstream switch" is strong evidence that Lartigue's claim that the School District failed to accommodate her request to participate in UIL relates to denial of a FAPE. For this reason, under Fry, Lartigue has failed to demonstrate that she has a valid, stand alone claim under the ADA. What she really seeks is the Court's review of her claim that the School District denied her a FAPE. She cannot through artful pleading resurrect her abandoned IDEA claim. Consistent with the Court's Sept. 7, 2022 ruling, Judge Pulliam denies the School District's motion as to its original argument and grants the School District relief based on the parties' subsequent briefings filed under Federal Rule 56(f). He dismisses the case with prejudice. Final judgment will be entered by separate order. A full-text copy of the Court's Sept. 9, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/n6wufmcs from Leagle.com. OBI SEAFOODS: Court Certifies 2 Workers Classes in Paunovic Suit ---------------------------------------------------------------- In the case, MARIJA PAUNOVIC and DUSAN PAUNOVIC, individually and on behalf of all others similarly situated, Plaintiffs v. OBI SEAFOODS LLC and OCEAN BEAUTY SEAFOODS LLC, Defendants, Case No. C21-884 MJP (W.D. Wash.), Judge Marsha J. Pechman of the U.S. District Court for the Western District of Washington, Seattle, issued an order: a. granting the Plaintiffs' Motion for Class Certification; b. denying the Plaintiffs' Motion to Amend the Scheduling Order and for Leave to Amend the Complaint; c. granting the Plaintiffs' Motion to Amend the Scheduling Order; d. denying the Defendants' Motion to Certify Question to State of Alaska Supreme Court; and e. denying the Defendants' Motion to Stay. Plaintiffs Marija and Dusan Paunovic bring claims under the Fair Labor Standards Act (FLSA) and the Alaska Wage and Hour Act (AWHA) against their former employers Defendants OBI and Ocean Beauty. Relevant to the pending Motions are the Plaintiffs' claims that the Defendants failed to pay fish processors on a biweekly basis and to pay fish processors minimum wage for time spent in quarantine. The Plaintiffs seek certification of two classes: a. Quarantine Class: All current or former employees of OBI Seafoods LLC and/or Ocean Beauty Seafoods LLC who were hired to perform fish processing work and, after December 2019, were subject to a mandatory quarantine period during which they were paid less than the minimum wage rate multiplied by eight or more hours for each day spent in quarantine. b. Delay Class: All current or former employees of OBI Seafoods LLC and/or Ocean Beauty Seafoods LLC who at any time after May 2019 were hired to perform fish processing work and were paid at greater intervals than biweekly. The Defendants oppose class certification and ask the Court to instead certify the following question to the Alaska Supreme Court, concerning the Quarantine Class: Did the minimum wage requirements of the Alaska Wage and Hour Act apply to fish processing workers during the mandatory COVID-19 quarantine period the State of Alaska required the workers to complete prior to beginning work during the 2020 season? They ask the Court to stay the case while the Alaska Supreme Court considers this question. Judge Pechman first reviews the facts concerning the Parties and then addresses the facts specific to the two proposed classes. The Plaintiffs reside in Serbia and have worked in Alaska as fish processors on H-2B work visas. Paunovic worked for Ocean Beauty in 2019 and alleges she was paid only once at the end of a six-week processing season. And both Plaintiffs were hired for the 2020 processing season, but were terminated after spending 29 days in quarantine before they could perform any fish processing. They were paid $75 per day in quarantine. Ocean Beauty has operated fish processing plants in Alaska since the 1990s, while OBI is a newer company that resulted from the merger of Ocean Beauty and Icicle Seafoods in 2020. In 2019, Ocean Beauty employed roughly 1,400 people at five fish processing plants in Alaska, a "large portion" of whom were fish processors. On June 1, 2020, OBI took over operation of these plants which employed roughly 1,500 employees. In March, 2020, Alaska issued various mandates requiring all people arriving in Alaska to self-quarantine to avoid the spread of COVID-19. The mandates also required "critical infrastructure" businesses, of which fish processing is one, to prepare and submit a "travel plan or protocol" to "take reasonable care to protect their staff and operations during this pandemic." The mandate imposed monetary fines and possible imprisonment if quarantine rules were violated. It also required companies employing out-of-state workers to make sure employees traveled straight to a quarantine location where they were to stay on premises, practice social distancing, and limit any visits except for those with medical personnel. Consistent with the mandates, Ocean Beauty prepared a COVID-19 protocol that required all arriving workers to quarantine. It updated these procedures in May 2020. The only notably change was to disallow quarantining employees from work unless they could be socially distanced. The Defendants paid employees $75 per day spent in quarantine. This decision was made by considering the wages an employee would make over a 40 hour work week at a prevailing rate of $12.19/hour. The Defendants then set the "stipend" to exceed this amount by roughly $5. Consistent with the quarantine procedures, the Plaintiffs went into quarantine upon their arrival from Serbia in June 2020. They spent 29 days total in quarantine, but they were terminated before they began fish processing work. The Plaintiffs purportedly violated the quarantine requirements when Marija visited Dusan in his apartment after she tested positive for COVID-19. They dispute the basis for their termination. Ultimately, they were paid only $75/day, which they received more than a month after they arrived and which was paid on a monthly basis. The Plaintiffs' Pay Delay Class involves allegations that the Defendants failed to pay all fish processors on a biweekly basis as required by law. The Plaintiffs contend that employers of H-2B visa workers who have an approved "job order" must pay both H-2B and non-H-2B employees doing "corresponding employment" on a biweekly basis. They argue that this is also the pay frequency due under the AWHA. Courts must undertake a "rigorous analysis" of all the Rule 23 factors to determine whether to certify a class. The plaintiff must first meet all four requirements in Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. The plaintiff must also satisfy one of the Rule 23(b) factors. The court must also make a rigorous assessment of the available evidence and the method or methods by which the plaintiffs propose to use the class-wide evidence to prove the common question in one stroke. In addition, the court must find that this common question (i.e., the 'common, aggregation-enabling' issue) predominates over individual issues. Judge Pechman reviews the Rule 23(a) and 23(b)(3) requirements in the context of the case and as applied to the two proposed classes. She finds that (i) there is no serious challenge to numerosity and there appear to be hundreds of members in both classes; (ii) both commonality and predominance are satisfied as to the Quarantine Class and the Pay Delay Class; (iii) the the named Plaintiffs' claims are typical of both classes; (iv) the Plaintiffs are adequate class representatives and the Terrell Marshall Law Group PLLC will fairly and adequately represent the interest of the classes; and (v) superiority satisfied as to both classes. For these reasons, Judge Pechman finds that class certification of both the Quarantine Class and Pay Delay Class is appropriate. She grants the Motion for Class Certification, certifies both classes as proposed, appoints the named Plaintiffs as the class representatives, and appoints Terrell Marshall Law Group PLLC and Kenworthey Law PLLC as the class counsel. She directs the Plaintiffs to present a proposed notice plan and form of notice within 21 days of entry of the Order. The Defendants argue that the Court should stay any ruling on class certification and instead certify a question to the Alaska Supreme Court as to whether the time employees spent in quarantine is subject to the AWHA. They ask the Court to certify the following question to the Alaska Supreme Court: Did the minimum wage requirements of the Alaska Wage and Hour Act apply to fish processing workers during the mandatory COVID-19 quarantine period the State of Alaska required the workers to complete prior to beginning work during the 2020 season? The Defendants maintain that this question is dispositive of the "Plaintiffs' claim that the state-mandated COVID-19 quarantine period was 'compensable work time.'" And they assert that this is "a pure question of law based on the Alaska Wage and Hour Act." They also ask the Court to stay the entire case until after the Alaska Supreme Court resolves the certified question. Judge Pechman finds no merit in these requests, holding several reasons why certification is improper. First, there exists controlling law as to how to determine whether time spent working or waiting is compensable time under the AWHA. Second, the Defendants fail to provide any reason why the Alaska COVID-19 quarantine mandate absolved them of compliance with the AWHA's minimum wage requirements. Third, the question presented turns on contested facts. Ultimately, Judge Pechman remains unconvinced that any additional guidance is necessary from the Alaska Supreme Court beyond the existing jurisprudence to resolve the legal issues presented. He therefore denies the Motion to Certify the Question. Given her denial of the Motion to Certify the Question, Judge Pechman finds the request to stay the action to be unnecessary. She denies the Motion to Stay as moot. The Plaintiffs ask the Court to allow them to amend the Complaint after the deadline to add overtime claims as to the Quarantine Class and several clerical changes. Judge Pechman finds that there is insufficient good cause to allow the amendment after the deadline and denies the Motion for lack of good cause under Rule 16(b)(4) and does not reach the question of whether amendment is proper under Rule 15(a)(2). She holds that the Plaintiffs do not identify any new facts that they learned through discovery that has prompted the requested amendment to the case schedule. They have not been sufficiently diligent to warrant a finding of good cause to amend the case schedule to allow an amended complaint. Separately, Judge Pechman notes that this does not preclude the Plaintiffs from pursuing their assertion that they worked 24 hours a day while in quarantine, given the existing allegation in the Complaint that they worked "eight hours or more" while in quarantine. This merely precludes the addition of a claim for overtime pay under Alaska Statute 23.10.060. The Plaintiffs ask the Court to amend the case schedule to give additional time for expert reports and to set a deadline for Defendants to produce class and collective damages data. The Defendants largely agree with the Motion, though they ask for more time to produce damages information and for clarification of the existing case schedule. Judge Pechman finds good cause to permit the amendment to the case schedule. As the Plaintiffs correctly note, the Court's Order on the Motion for Class Certification impacts the expert report disclosures, given that the deadline has passed since the Motion was briefed. Despite the Parties' diligence, they could not have complied with the existing deadline, which justifies the amendment under Rule 16(b)(4). And given that the extension of the expert deadline will impact other existing deadlines, Judge Pechman orders the Parties to meet and confer and submit a joint status report within one week of the Order identifying all of the remaining case deadlines that they wish to amend and the proposed dates. Judge Pechman also clarifies that the case is subject to the Scheduling Order's dates in the section marked "If a Collective or Class Action is Certified." And she orders the Defendants to produce the remaining documents responsive to the Plaintiffs' Request for Production No. 3 (regarding damages) within 25 days of entry of the Order. Having considered the briefing, the argument of the parties, and all supporting materials, Judge Pechman: (1) grants the Motion for Class Certification, certifies both classes as proposed, appoints the named Plaintiffs as class representatives, and appoints Terrell Marshall Law Group PLLC and Kenworthey Law PLLC as class counsel. She directs the Plaintiffs to present a proposed notice plan and form of notice within 21 days of entry of the Order; (2) denies the Defendants' Motion to Certify Question and denies the Motion to Stay as moot; (3) denies the Plaintiffs' Motion to Amend the Case Schedule and for Leave to Amend the Complaint; and (4) grants the Plaintiffs' Motion to Amend the Case Schedule and orders the Parties to meet and confer and submit a joint status report within one week of the Order. And the Defendants must produce class/collective damages discovery within 25 days of entry of the Order. The Clerk is ordered to provide copies of the Order to all counsel. A full-text copy of the Court's Sept. 9, 2022 Order is available at https://tinyurl.com/yp52bshp from Leagle.com. ONE CONCRETE: De La Garza Sues Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Alejandro Vargas De La Garza, Juan Guzman, Gilberto Corsino Rosario, Edwin Zepeda, Jose Saul Ovando Zepeda, Jose Hernandez Martinez, Jhon Nicolas Gonzalez Pastrana and Wilmer Rolando Suazo Sabio, individually and on behalf of all others similarly situated v. ONE CONCRETE LLC, YISROEL LUBART, SIGAL LUBART and THOMAS GALLO, as individuals, Case No. 1:22-cv-05380 (E.D.N.Y., Sept. 9, 2022), is brought under the Fair Labor Standards Act and the New York Labor Law to recover damages for the Defendants’ egregious violations of state and federal wage and hour laws arising out of Plaintiff’s employment with the Defendants by willfully failing and refusing to pay required overtime wages. Although the Plaintiffs regularly worked 50 or more hours each week, the Defendants did not pay the Plaintiffs at a wage rate of time and a half for his hours regularly worked over 40 hours in a work week, a blatant violation of the overtime provisions contained in the FLSA and NYLL, says the complaint. The Plaintiffs worked for the Defendants at the "Job Site" located in Bronx, New York. ONE CONCRETE LLC is a New York domestic business corporation.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80—02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Phone: 718-263-9591 Fax: 718-263-9598 PETSMART LLC: Topalli FTSA Suit Removed to M.D. Florida ------------------------------------------------------- The case styled LEUTRIM TOPALLI, individually and on behalf of all others similarly situated v. PETSMART, LLC, Case No. 2022-ca-6447-o, was removed from the Circuit Court for the Ninth Judicial Circuit in and for Orange County, Florida, to the U.S. District Court for the Middle District of Florida on September 13, 2022. The Clerk of Court for the Middle District of Florida assigned Case No. 6:22-cv-01670 to the proceeding. The case arises from the Defendant's alleged violation of the Florida Telephone Solicitation Act by placing telephonic sales calls to the Plaintiff's and Class members' telephone numbers without their prior express written consent. PetSmart, LLC is a privately held American chain of pet superstores, headquartered in Phoenix, Arizona. [BN] The Defendant is represented by: Abigail M. Lyle, Esq. HUNTON ANDREWS KURTH LLP 1445 Ross Avenue, Suite 3700 Dallas, TX 75202 Telephone: (214) 979-8219 Facsimile: (214) 880-0011 E-mail: alyle@huntonAK.com - and - Aliza Malouf, Esq. HUNTON ANDREWS KURTH LLP 2200 Pennsylvania Avenue, N.W. Washington, DC 20037 Telephone: (202) 778-2209 Facsimile: (202) 778-2201 E-mail: amalouf@huntonAK.com PORTLAND, OR: Faces Class Action Over Alleged ADA Violations ------------------------------------------------------------ Alex Zielinski, writing for Portland Mercury, reports that a group of Portlanders with disabilities filed a lawsuit in federal court on Sept. 6, accusing the city of Portland of failing to comply with the Americans with Disabilities Act (ADA) for allowing tents and other structures to occupy city sidewalks. "The City has failed and continues to fail to maintain its sidewalks clear of debris and tent encampments, which is necessary to make its sidewalks readily accessible to people with mobility disabilities," reads the complaint, filed by Attorney John DiLorenzo of the law firm David Wright Tremaine. The lawsuit demands the city clear all city sidewalks of tents -- and their residents -- while the litigation carries out in court. Portland is subject to a Ninth Circuit Court of Appeals ruling that prohibits cities from removing homeless people from public spaces if they cannot offer alternative shelter space. To meet that legal requirement, the lawsuit demands that the city construct shelter space to accommodate for every person swept. Those represented in the lawsuit include Portlanders who use mobility devices to run errands and get to work, along with caregivers for people with disabilities. The plaintiffs live in neighborhoods across the city. Several plaintiffs describe having to operate wheelchairs and canes in the middle of the street to avoided blocked sidewalks. Others cited feeling threatened by unhoused people who reside in tents and other structures along city sidewalks. The lawsuit does not include nor mention any people with disabilities who themselves live in tents or other outdoor shelters. According to Multnomah County's 2019 point-in-time count, which acts as a census for unsheltered homeless populations, 62 percent of people without shelter said they had a disability. The lawsuit goes beyond detailing violations of the ADA to opine on city management and politics. The filing accuses city officials of inaction on homeless sweeps due to "political headwinds" which have allowed the city to take "only limited action to maintain its sidewalks clear from tent encampments and debris and, instead, prioritizes other public projects." The complaint also accuses the police of not addressing crimes that are called in by people with disabilities. DiLorenzo has made a name for himself in Oregon by taking the government to court, often on behalf on property owners and monied businesses. DiLorenzo successfully fought Portland for misspending water and sewer funds in 2017 and, more recently, failed to overturn the city's renter relocation ordinance on behalf of irate landlords. DiLorenzo also led the lawsuit against the state for failing to maximize timber harvests, winning the plaintiff counties a $1 billion verdict. He was also the attorney behind the 2020 lawsuit which accused the state of limiting businesses' economic revenue due to COVID-19 restrictions. Outside of the courtroom, DiLorenzo has a personal stake in sweeping homeless camps. DiLorenzo co-owns an apartment in downtown Portland and, in 2021, took it upon himself to hire a private security team to investigate criminal activity taking place at homeless encampments near his property. He used the results of that investigation to lobby City Hall to to remove the camp -- and within weeks, it was swept. This isn't the first time ADA regulations have informed the city's homeless restrictions. In 2010, then-Mayor Sam Adams proposed a policy that would limit people from sitting or lying in an eight-foot "pedestrian-use zone" on city sidewalks, to accommodate people with disabilities. The policy passed. Adams and his then-chief of staff, Tom Miller, now both work in Mayor Ted Wheeler's office. ADA regulations are a common tool used to police homeless populations across the US (along with other marginalized communities), both through city policy and lawsuits. In 2019, several cities in southern California were sued for violating the ADA by allowing tents along city sidewalks. That lawsuit ended in several settlement agreement with the cities involved, which pledged to create additional shelter space to relocated unsheltered people living on sidewalks. In 2020, Texas Gov. Greg Abbott suggested the city of Austin use ADA violations to removed homeless people from sleeping on sidewalks. Wheeler's office said the mayor will comment on the lawsuit following a 11 am press conference held by DiLorenzo on the complaint. [GN] PROLOGIS INC: Misleads Stockholders to Approve Merger, Curtis Says ------------------------------------------------------------------ MARCEY CURTIS, individually and on behalf of all others similarly situated, Plaintiff v. PROLOGIS, INC., HAMID R. MOGHADAM, IRVING F. LYONS, III, CRISTINA G. BITA, GEORGE L. FOTIADES, LYDIA H. KENNARD, AVID MODJTABAI, DAVID P. O'CONNOR, OLIVIER PIANI, JEFFREY L. SKELTON, CARL B. WEBB, and WILLIAM D. ZOLLARS, Defendants, Case No. 1:22-cv-07833 (S.D.N.Y., September 13, 2022) is a class action against the Defendants for violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, the Defendants authorized the issuance of a false and misleading prospectus with the U.S. Securities and Exchange Commission (SEC) to convince Prologis, Inc.'s stockholders to vote in favor of the proposed merger of the company with Duke Realty Corporation. The prospectus omits or misrepresents material information concerning, among other things: (i) Prologis's financial projections; (ii) the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by the company's financial advisor Goldman Sachs & Co. LLC; and (iii) the potential conflicts of interest of the company's other financial advisor, Citigroup Global Markets. Prologis's public stockholders will be irreparably harmed by the material misrepresentations and omissions, which prevent them from making a sufficiently informed voting decision the proposed transaction. The Plaintiff seeks to enjoin the stockholder vote on the proposed merger unless and until such Exchange Act violations are cured, says the suit. Prologis, Inc. is a real estate investment trust firm, with its principal executive offices at Pier 1, Bay 1, San Francisco, California. [BN] The Plaintiff is represented by: Richard A. Acocelli, Esq. ACOCELLI LAW, PLLC 33 Flying Point Road, Suite 131 Southampton, NY 11968 Telephone: (631) 204-6187 E-mail: racocelli@acocellilaw.com RADIANT SERVICES: Faces EEOC Suit Over Employment Discrimination ---------------------------------------------------------------- U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, individually and on behalf of all others similarly situated, Plaintiff v. RADIANT SERVICES CORP., BARONHR, LLC, and DOES 1-10, inclusive, Defendants, Case No. 2:22-cv-06517 (C.D. Cal., September 13, 2022) is a class action against the Defendants for violations of Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act of 1990, and Title I of the Civil Rights Act of 1991. According to the complaint, the Defendants are engaged in unlawful employment practices of refusing to recruit, refer and hire individuals based on their race, national origin, sex, and disability. As a result of the Defendants' misconduct, the aggrieved individuals suffer emotional distress, says the suit. The U.S. Equal Employment Opportunity Commission is a federal agency based in Washington, D.C. Radiant Services Corp. is a provider of commercial laundry and dry cleaning services in California. BaronHR, LLC is a staffing company in California. [BN] The Plaintiff is represented by: Anna Y. Park, Esq. Nakkisa Akhavan, Esq. Ella Hushagen, Esq. Alisha Ansari, Esq. Derek Li, Esq. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Temple Street, Fourth Floor Los Angeles, CA 90012 Telephone: (213) 785-3032 Facsimile: (213) 894-1301 E-mail: anna.park@eeoc.gov nakkisa.akhavan@eeoc.gov ella.hushagen@eeoc.gov alisha.ansari@eeoc.gov derek.li@eeoc.gov RICOLA USA: Court Grants in Part Bid to Dismiss Davis Class Suit ---------------------------------------------------------------- In the case, LACIE DAVIS, individually and on behalf of all other similarly situated, Plaintiff v. RICOLA USA, INC., Defendant, Case No. 22-cv-3071 (C.D. Ill.), Judge Sue E. Myerscough of the U.S. District Court for the Central District of Illinois, Springfield Division, grants in part and denies in part the Defendant's Motion to Dismiss. Ms. Davis brings the putative class action against the Defendant, alleging that Ricola fraudulently labels and markets its throat lozenges as herbal remedies. She asserts the following claims: (1) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/1, et seq.; (2) breach of express warranty; (3) breach of implied warranty of merchantability; (4) violation of the Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. Section 2301, et seq.; (5) negligent misrepresentation; (6) common-law fraud; and (7) unjust enrichment. Ms. Davis seeks certification of a multistate consumer class, injunctive relief, and damages. Ricola is a corporation based in and incorporated under the laws of New Jersey. Among other things, it manufactures, labels, markets, and sells cough-suppressant throat lozenges. It is of Swiss origin, and it markets its "Original Herb Cough Drops" as having been "made with Swiss Alpine Herbs," including peppermint, wild thyme, hyssop, horehound, and mallow. Ricola also represents that its "cough suppressant" and "oral anesthetic" lozenges are "great tasting" and provide "effective relief." Ms. Davis is a consumer and a resident of Illinois. She purchased Ricola lozenges on at least one occasion in 2022. Ms. Davis would not have done so, however, had Ricola not marketed its lozenges as deriving their therapeutic benefits from their herbal ingredients. Ms. Davis' allegations center on the lozenges' front label. She alleges that, based on the label's claims and images, she and other consumers reasonably would "expect its cough suppressant and oral anesthetic functionality will be provided by its herbal ingredients." She alleges that consumers intentionally seek out, and pay a premium for, therapeutic products containing herbal ingredients. Yet despite the "front label representations including 'Cough Suppressant,' 'Oral Anesthetic,' 'Effective Relief,' 'Made with Swiss Alpine Herbs,' and pictures of ten herbs, the Product's therapeutic effect is not provided by any of the herbs pictured on the front label.'" Rather, the herbs "promoted on the front label" of Ricola's lozenges "are exclusively 'Inactive Ingredients.'" Ms. Davis maintains that had she known "the truth," she "would not have bought the Product or would have paid less for it." Pursuant to Federal Rule of Civil Procedure 23, she seeks to certify two classes of consumers who "purchased the Product during the statutes of limitations for each cause of action alleged." Ricola now moves to dismiss Ms. Davis' complaint for failure to state a claim. It argues that Ms. Davis' suit is "yet another in a string of 'unreasonable and unactionable' interpretations of product packaging advanced by her attorney throughout the country." Ms. Davis' first count alleges a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/1, et seq. See Compl.. To state an ICFA claim, Ms. Davis must allege with particularity (1) a deceptive act or practice by Ricola; (2) that Ricola intended for Ms. Davis to rely on the deception; (3) that the deception occurred in trade or commerce; and (4) actual damage proximately caused by the deception. Ricola's labeling is "deceptive" if it "creates a likelihood of deception or has the capacity to deceive." Moreover, Ms. Davis must plausibly allege that Ricola's labeling is "likely to deceive reasonable consumers." Judge Myerscough finds that Ms. Davis alleges that she purchased Ricola lozenges for what she believed was their herbally derived therapeutic properties. She further alleges that, but for Ricola's omission from its lozenges' front label of any mention of menthol, she and other consumers would have purchased a competitor product. This claim falls within ICFA's scope. Judge Myerscough further finds that Ms. Davis plausibly alleges that a reasonable consumer would believe that Ricola lozenges are powered by "Swiss Alpine Herbs" rather than ordinary menthol. That Ricola's back label may revolve the ambiguity is immaterial at the pleadings stage. What matters is that Ricola's front label prominently notes only the presence of "Swiss Alpine Herbs," and that Ms. Davis alleges that the front label misled her. That is enough to state a claim under the ICFA. Ricola's motion to dismiss this count must be denied. Ms. Davis also brings claims for breach of express warranty, breach of implied warranty of merchantability, and breach of warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. Sections 2301, et seq. Ricola argues that Ms. Davis' warranty claims must be dismissed for lack of pre-suit notice. Ms. Davis responds that she provided notice by filing suit. Ricola is correct, Judge Myerscough. She opines that Ms. Davis' state-law breach of warranty claims must be dismissed. Ms. Davis contends that Ricola had constructive notice -- that it "should have been aware" of the alleged breach by way of third-party complaints. But such an allegation does not suffice under Illinois law. This leaves Ms. Davis' claim under the federal Magnuson-Moss Warranty Act. A claim under Magnuson-Moss turns on the "existence of an underlying viable state-law warranty claim." Because Ms. Davis cannot state a viable state-law claim, her federal claim must be dismissed as well. Judge Myerscough turns next to Ms. Davis' negligent misrepresentation claim, in which she alleges that Ricola breached its "duty to truthfully represent" the composition of its lozenges. Ricola contends that this claim is barred by Illinois law. Judge Myerscough agrees. She says Ms. Davis has pled only economic damages -- that is, damages flowing from a purchase which, she alleges, was induced by Ricola's misrepresentation. She does not allege that Ricola is "in the business of supplying information for the guidance of others in their business transactions." Any information provided by Ricola was, therefore, "merely ancillary to the sale" of its lozenges. Because Illinois law forecloses Ms. Davis' negligent misrepresentation claim, it must be dismissed with prejudice. Ms. Davis also brings a claim for common-law fraud. She need only allege scienter generally. But "general" does not mean "conclusory." Several other courts in this Circuit have found that the precise allegation made -- that scienter was "evinced by the Defendant's knowledge that the Product was not consistent with its representations" -- is conclusory. The Court joins those courts. Because Ms. Davis fails to allege that Ricola intended to defraud her, her fraud claim is dismissed without prejudice. Ms. Davis' last remaining claim alleges unjust enrichment. As the parties agree, when "an unjust enrichment claim rests on the same improper conduct alleged in another claim unjust enrichment will stand or fall with the related claim." The Court already has found that Ms. Davis states a claim under the ICFA. Her unjust enrichment claim, therefore, survives as well. Lastly, Ricola argues that Ms. Davis lacks standing to pursue her demand for injunctive relief. Judge Myerscough opines that Ms. Davis' knowledge of Ricola's allegedly deceptive practices fells her request to enjoin them. The general rule holds that "consumer plaintiffs cannot seek injunctive relief once they are aware of a deceptive practice." Without more than the speculative claim that Ms. Davis will again be harmed by" Ricola, she "is not entitled to injunctive relief." Accordingly, her demand for injunctive relief is dismissed without prejudice for lack of standing. For these reasons, Judge Myerscough grants in part and denies in part Ricola's Motion to Dismiss. The Plaintiff's claims under the ICFA and for common-law unjust enrichment will proceed. Her claims for breach of express warranty, breach of implied warranty, breach of warranty under the Magnuson-Moss Warranty Act, and common-law fraud are dismissed without prejudice. Her claim for negligent misrepresentation is dismisses with prejudice. The Plaintiff's demand for injunctive relief is dismissed without prejudice for lack of standing. If the Plaintiff wishes to file an amended complaint, she may do so by Sept. 30, 2022. If she files an amended complaint, the Defendant will file an answer or other responsive pleading by Oct. 14, 2022. If the Plaintiff does not file an amended complaint, the Defendant's answer or other responsive pleading was due Sept. 23, 2022. The matter is referred to U.S. Magistrate Judge Karen L. McNaught for a scheduling conference pursuant to Federal Rule of Civil Procedure 16. The parties are directed to meet and confer prior to the scheduling conference, as required by Federal Rule of Civil Procedure 26(f). Any resultant scheduling order will include deadlines for class-certification motion practice. A full-text copy of the Court's Sept. 9, 2022 Opinion is available at https://tinyurl.com/bdef7r8n from Leagle.com. ROUNDPOINT MORTGAGE: Pace Suit Removed to E.D. Arkansas ------------------------------------------------------- The case styled as Richard Scott Pace, for himself and all others similarly situated v. RoundPoint Mortgage Services Corporation, Fifth Third Bank, Case No. 60CV-22-05340 was removed from the Pulaski County Circuit Court, to the U.S. District Court for Eastern District of Arkansas on Sept. 9, 2022. The District Court Clerk assigned Case No. 4:22-cv-00815-BRW to the proceeding. The nature of suit is stated as Other P.I. for Personal Injury. RoundPoint Mortgage Servicing Corporation -- https://www.roundpointmortgage.com/ -- was founded in 2007 and is a large, fully integrated, non-bank mortgage lending and servicing company.[BN] The Plaintiff is represented by: Philip Daniel Holland, Esq. Scott E. Poynter, Esq. POYNTER LAW GROUP 407 President Clinton Avenue, Suite 201 Little Rock, AR 72201 Phone: (501) 317-5536 Email: daniel@poynterlawgroup.com scott@poynterlawgroup.com The Defendants are represented by: Andrew King, Esq. Harper Lee Kiefer McKenzie L. Raub Kutak Rock LLP 124 West Capitol Avenue, Suite 2000 Little Rock, AR 72201-3740 Phone: (501) 975-3142 Fax: (501) 975-3001 Email: andrew.king@kutakrock.com harper.kiefer@kutakrock.com mckenzie.raub@kutakrock.com - and - Bradley E. Trammell Kristine L. Roberts Pete A. Brunson BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ First Tennessee Bank Building 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Phone: (901) 526-2000 Email: btrammell@bakerdonelson.com kroberts@bakerdonelson.com pbrunson@bakerdonelson.com SAMSUNG ELECTRONICS: Martin Sues Over Misleading Advertising ------------------------------------------------------------ Shakira Martin, individually and on behalf of all others situated v. SAMSUNG ELECTRONICS CO., LTD and SAMSUNG ELECTRONICS AMERICA, INC., Case No. 5:22-cv-01607 (C.D. Cal., Sept. 12, 2022), is brought against the Defendants for misleading consumers about the performance of certain Samsung Galaxy devices. This is a class action brought on behalf of purchasers of Samsung Galaxy devices, including but not limited to models S10, S20, S21, and S22 and versions "FE," "Plus," and "Ultra" (collectively referred to as "Devices"), sold by Defendants Samsung Electronics Co, Ltd. and Samsung Electronics America, Inc. The Company utilized a Samsung application called Game Optimizing Service ("GOS"), which effectively slowed down or "throttled" the performance of over 10,000 applications, including Instagram, Facebook, YouTube, TikTok, Amazon, Twitter, Netflix, DisneyPlus, and Microsoft Office. However, popular "benchmarking" applications--which are tools that allow consumers to compare the performance of various smartphones and verify smartphone manufacturer's claimed performance--were not throttled by GOS. Accordingly, Samsung falsely represented the Devices true speed, performance, and battery life. The Company did not disclose this to consumers upon purchasing the Devices. Instead, Samsung continued to tout the "smooth, high-quality performance" and "powerful, intelligent battery" of its Devices, despite knowing that its performance claims were based on false and deceptive benchmarking metrics. By advertising the performance statistics garnered from popular benchmarking applications, Samsung was able to manipulate purchasers into buying expensive products that did not in fact operate at the claimed high performance. In deciding to purchase her Samsung Galaxy S21, Plaintiff believed and relied on statements made by Samsung regarding the devices' alleged speed and performance and ultimately purchased the device due to its allegedly superior speed, battery life, and overall performance. Plaintiff and the Class have suffered damages as a direct result of the Company's false and disingenuous marketing, advertising, and packaging of the Devices. Samsung's misrepresentations and omissions violate California's Unfair Competition Law and the Consumer Legal Remedies Act, says the complaint. The Plaintiff purchased the Samsung Galaxy S21 on June 15, 2021 at the Spectrum Charter store in Victorville, California. Samsung Electronics Co, Ltd. is headquartered in South Korea and is a subsidiary of the multinational Samsung Group conglomerate that has auxiliaries in a myriad of varied industries, including consumer electronics, construction, defense, aerospace, and shipbuilding.[BN] The Plaintiff is represented by: Robert C Schubert, Esq. Amber L Schubert, Esq. SCHUBERT JONCKHEER & KOLBE LLP Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 Phone: (415) 788-4220 Facsimile: (415) 788-0161 Email: rschubert@sjk.law aschubert@sjk.law SAMSUNG ELECTRONICS: Seirafi Sues Over Failure To Safeguard PII --------------------------------------------------------------- Naeem Seirafi and Shelby Holtzclaw, individually and on behalf of all others similarly situated v. SAMSUNG ELECTRONICS AMERICA, INC., a corporation, Case No. 3:22-cv-05176 (N.D. Cal., Sept. 10, 2022), is brought against the Defendant for failure to safeguard the sensitive personal identifying information. The Plaintiffs and millions of other consumers entrusted Samsung with their personal data when they registered for Samsung accounts, providing their names, dates of birth, postal addresses, precise geolocation data, email addresses, phone numbers, the Samsung products they own, and other information. As stated in their own privacy policy, Samsung recognizes the heavy burden of protection and security that they bear when collecting and storing this data Indeed, Samsung represents that it maintains "safeguards designed to protect personal information." Samsung touts its purported dedication to strong security by making the following advertising claims for its devices and services. Samsung’s representations of strong and robust security have proved false and misleading--Samsung admittedly failed to safeguard the sensitive personal identifying information of millions of its consumers, or implement robust security measures to prevent this information from being stolen. The Plaintiffs relied to their detriment on the Defendant's uniform representations and omissions regarding data security, including the Defendant's failure to alert customers that its security protections were inadequate, and that the Defendant would forever store the Plaintiffs’ and customers’ PII, failing to archive it, protect it, or at the very minimum warn consumers of the anticipated and foreseeable data breach Had the Defendant disclosed to the Plaintiffs and its other customers that its data systems were not secure at all and, were vulnerable to attack, the Plaintiffs would not have purchased Defendant’s products or utilized its services. In fact, the Defendant would have been forced to adopt reasonable data security measures and comply with the law, says the complaint. The Plaintiffs are individuals who had their personal identifiable information exfiltrated and compromised in the data breach announced by the Defendant on September 2, 2022. Samsung is among the top five largest technology companies in the world.[BN] The Plaintiffs are represented by: Ryan J. Clarkson, Esq. Katherine A. Bruce, Esq. Bahar Sodaify, Esq. Yana Hart, Esq. CLARKSON LAW FIRM, P.C. 22525 Pacific Coast Highway Malibu, CA 90265 Phone: (213) 788-4050 Email: rclarkson@clarksonlawfirm.com kbruce@clarksonlawfirm.com bsodaify@clarksonlawfirm.com yhart@clarksonlawfirm.com - and - Sabita J. Soneji, Esq. TYCKO & ZAVAREEI LLP 1970 Broadway, Suite 1070 Oakland, CA 94612 Phone: (510) 250-3370 Email: ssoneji@tzlegal.com - and - Hassan A. Zavareei, Esq. TYCKO & ZAVAREEI LLP 1828 L Street NW, Ste. 1000 Washington, DC 20036 Phone: (202) 973-973-0900 Email: hzavareei@tzlegal.com SAN FRANCISCO BAR PILOTS: Reed Files Suit in Cal. Super. Ct. ------------------------------------------------------------ A class action lawsuit has been filed against The San Francisco Bar Pilots Benevolent and Protective Association, et al. case is styled as Raymond Reed, individually and on behalf of all others similarly situated v. against The San Francisco Bar Pilots Benevolent and Protective Association, Does 1 through 20, Inclusive, Case No. CGC22601736 (Cal. Super. Ct., San Francisco Cty., Sept. 12, 2022). The case type is stated as "Other Non-Exempt Complaints." The San Francisco Bar Pilots -- https://sfbarpilots.com/ -- are licensed and regulated by both the United States Coast Guard and the California Board of Pilot Commissioners.[BN] The Plaintiff is represented by: Jessica L. Campbell, Esq. AEGIS LAW FIRM 9811 Irvine Center Dr., Ste. 100 Irvine, CA 92618 Phone: 949-379-6250 SM ROUNDERS: Underpays Hotel Housekeepers, Espinoza Suit Claims --------------------------------------------------------------- DIGNA TACURI ESPINOZA, individually and on behalf of all others similarly situated, Plaintiff v. SM ROUNDERS LLC (DBA ALOFT NEW YORK LAGUARDIA AIRPORT), Defendant, Case No. 1:22-cv-05474 (E.D.N.Y., September 13, 2022) is a class action against the Defendant for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay overtime wages, failure to provide accurate wage statements, and failure to comply with notice and recordkeeping requirements. The Plaintiff was employed by the Defendant as a housekeeper at a hotel in New York from January 24, 2021 until December 24, 2021. SM Rounders LLC, doing business as Aloft New York Laguardia Airport, is a hotel owner and operator, with its headquarters at 100-15 Ditmars Blvd., Queens, New York. [BN] The Plaintiff is represented by: Lina Stillman, Esq. STILLMAN LEGAL, P.C. 42 Broadway, 12th Floor New York, NY 10004 Telephone: (212) 203-2417 SONDER USA: Urena Sues Over Failure to Pay Weekly Wages ------------------------------------------------------- Christian Urena, on behalf of himself and all others similarly situated v. Sonder USA Inc., Case No. 1:22-cv-07736 (S.D.N.Y., Sept. 11, 2022), is brought against the Defendant injuries as a result of the Defendant's failure to pay weekly wages. The Plaintiff suffered actual and acute injuries as a result of the Defendant's failure to pay weekly wages. The timely payment of earned wages were and are crucial to the Plaintiff's ability to pay day to day and monthly expenses, especially due to New York's high cost of living. The Defendant's conduct in paying the Plaintiff's wages late throughout his employment resulted in him having to pay his car note late on at least two occasions. The Defendant's late wage payments also deprived the Plaintiff of the time value of their earned money, resulting in tangible financial loss calculated as interest and in other amounts; and loss in the form of the negative impact on their ability to save, invest, and plan for the future. The Defendant reaped large rental fees from its customers as a direct result of its Manual Workers' labor, taking in hundreds of millions in revenue, while unlawfully withholding from and paying late its employees who are least able to weather these unjust delays, says the complaint. The Plaintiff started working full-time for the Defendant in January 2019 as a maintenance engineer at their 2 Washington Street location in New York County and is still employed. Sonder describes itself as a technology-based hospitality company which offers a variety of accommodation options for travelers from rooms to suites and apartments. Sonder serves customers in North America, Europe, and the United Arab Emirates.[BN] The Plaintiff is represented by: Mohammed Ahmed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 675 Third Avenue, Ste. 1810 New York, NY 10017 Phone: (718) 669-0714 Email: mgangat@gangatllc SOUTH BEND CHOCOLATE: Jones Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against The South Bend Chocolate Company, Inc. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. The South Bend Chocolate Company, Inc., Case No. 1:22-cv-07772 (S.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. South Bend Chocolate -- https://sbchocolate.com/ -- offers chocolates, crunches, pretzels, malt balls, cookies, nuts and more including specially branded Notre Dame and Indiana University products.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com SOUTHERN COMPANY: Polson Sues to Recover Unpaid Overtime Wages -------------------------------------------------------------- Brandon Polson, individually and for others similarly situated v. THE SOUTHERN COMPANY, Case No. 1:22-cv-03647-VMC (N.D. Ga., Sept. 9, 2022), is brought to recover unpaid overtime wages and other damages owed by the Defendant to the Plaintiff and the non-overtime-exempt workers like him in violation of the Fair Labor Standards Act. Throughout his employment with the Defendant, the Plaintiff did not receive time and a half for all hours worked (including those hours in excess of 40 hours in a single workweek). The Defendant misclassified the Plaintiff and other workers like him as exempt from the overtime requirements of the FLSA. But the Defendant cannot meet the requirements for any relevant exemption because the Defendant did not pay them on a "salary basis." Instead, the Defendant and its staffing companies which created a ruse to give the appearance of compliance by claiming to guarantee the Plaintiff and the Putative Class Members a token salary while paying them a substantial hourly rate for every approved hour worked up to 40 in a workweek, says the complaint. The Plaintiff worked for the Defendants at the Vogtle Electric Generating Plant as a Maintenance Planner. Southern is a leader among the nation's energy operators, providing electricity for millions of homes and businesses.[BN] The Plaintiff is represented by: C. Ryan Morgan, Esq. MORGAN & MORGAN P.A. 20 N. Orange Ave., 15th Floor Orlando, FL 32802-4979 Phone: (407) 420-1414 Facsimile: (415) 358-6923 Email: rmorgan@forthepeople.com - and - Jeremy Stephens, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street, N.E., Suite 4200 Post Office Box 57007 Atlanta, Georgia 30343-1007 Phone: (404) 965-1682 Email: jstephens@forthepeople.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Phone: 713-352-1100 Facsimile: 713-352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com rschreiber@mybackwages.com - and – Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: 713-877-8788 Facsimile: 713-877-8065 Email: rburch@brucknerburch.com STARKIST CO: Petitions for Writ of Certiorari in Antitrust Suit --------------------------------------------------------------- Global law firm White & Case LLP has filed an amicus brief with the Supreme Court of the United States on behalf of the Computer & Communications Industry Association (CCIA) in the closely watched case, StarKist Co. v. Olean Wholesale Grocery, which has significant implications for class-action litigation. In the amicus brief, CCIA asks the Supreme Court to grant a writ of certiorari and reverse the Ninth Circuit's en banc decision, which held that the district court was not required "to resolve a dispute between the parties as to whether 28 percent of the class did not suffer antitrust impact" (i.e., no injury) before certifying a class action. The Ninth Circuit's en banc decision undercuts critical Rule 23, Article III, and due process protections, paving the way for massive class actions engorged with uninjured class members. In sharp contrast to the Ninth Circuit's decision, the unanimous decisions of both the First Circuit and D.C. Circuit have held, respectively, that proposed class actions in which 10 percent and 12.7 percent of the class was uninjured did not satisfy Rule 23(b)(3)'s predominance requirement. In re Asacol Antitrust Litig., 907 F.3d 42, 45, 57-58 (1st Cir. 2018); In re Rail Freight Fuel Surcharge Antitrust Litig., 934 F.3d 619, 623-24 (D.C. Cir. 2019). Other circuits have reached similar conclusions and most district courts follow Asacol, creating a circuit split and making the Ninth Circuit the outlier when addressing this important class-certification issue. The White & Case team representing CCIA includes partners J. Mark Gidley, Peter J. Carney and Adam M. Acosta, along with associates Shannon Lane (all Washington, DC) and Daniel Medici (Boston). White & Case was previously counsel of record before the First Circuit in Asacol, and the team was recognized as "Litigators of the Week" by Global Competition Review for securing reversal of class certification in that case. The Asacol antitrust litigation was also shortlisted as "Litigation of the Year" at the GCR Awards in 2019. [GN] STEVE'S FLOWERS: Hernandez Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Steve's Flowers and Gifts, Inc. The case is styled as Janelys Hernandez, on behalf of herself and all others similarly situated v. Steve's Flowers and Gifts, Inc., Case No. 1:22-cv-07761 (S.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Steve's Flowers and Gifts -- https://www.stevesflowers.com/ -- offers fresh flowers and hand delivery right to your door in Indianapolis.[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 STRYKER CORPORATION: Skinner Sues Over Defective Ankle Replacement ------------------------------------------------------------------ Richard Skinner, for and on behalf of himself and all other similarly situated individuals v. Stryker Corporation, a Michigan corporation; John Does I-X; Jane Does I-X; Other Entities I-X; Black & White Corporations I-X; and ABC Partnerships I-X, Case No. 2:22-cv-01522-SRB (D. Ariz., Sept. 9, 2022), is brought against the Defendants with regards to their defective Stryker/Star (Scandinavian Total Ankle Replacement) device. In August of 2014, Plaintiff was the surgical recipient of a Stryker/Star (Scandinavian Total Ankle Replacement) device. Subsequently, Plaintiff experienced progressive symptoms of pain and instability in his affected ankle. On October 11, 2019, Stryker issued a safety communication for the Scandinavian Total Ankle Replacement non-foil packed mobile bearing components, advising that parts were fracturing with loss of mechanical properties, were occurring substantially more often than with comparable total ankle replacements. The Federal Drug Administration issued a safety alert to the same effect. The Plaintiff did not become aware of the Star failure until receiving a CAT scan on or about June of 2022, and was advised that the Star product degraded and was shedding plastic into his body. The Defendant is strictly liable to Plaintiff for the failure of the defective product. The Plaintiff's injuries were a direct and proximate result of the defects of the subject implant and the Defendants’ individual and/or collective failures, says the complaint. The Plaintiff Richard Skinner is a resident of Maricopa County, Arizona. Stryker Corporation designed, manufactured, tested, inspected, warranted and marketed the Stryker Star ankle replacement.[BN] The Plaintiff is represented by: Michael Napier, Esq. Juliana B. Tallone, Esq. NAPIER, BAILLIE, WILSON, BACON & TALLONE, P.C. 2525 East Arizona Biltmore Circle, Suite 135 Phoenix, AZ 85016 Phone: (602) 248-9107 Fax: (602) 248-0971 Email: Mike@napierlawfirm.com Jtallone@napierlawfirm.com SUNRUN INC: Gonzalez Files Suit in Cal. Super. Ct. -------------------------------------------------- A class action lawsuit has been filed against Sunrun Inc., et al. case is styled as Elvira Gonzalez, individually and on behalf of all others similarly situated v. Sunrun Inc., Does 1 to 100, Inclusive, Case No. CGC22601739 (Cal. Super. Ct., San Francisco Cty., Sept. 12, 2022). The case type is stated as "Other Non-Exempt Complaints." Sunrun -- https://www.sunrun.com/ -- is an American provider of photovoltaic solar energy generation systems and battery energy storage products, primarily for residential customers.[BN] The Plaintiff is represented by: James M. Treglio, Esq. POTTER HANDY, LLP 8033 Linda Vista Rd., Ste. 200 San Diego, CA 92111-5119 Phone: 858-375-7385 Fax: 888-422-5191 Email: jimt@potterhandy.com SUPPLYING DEMAND: Martinez Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Supplying Demand, Inc. The case is styled as Pedro Martinez, individually and as the representative of a class of similarly situated persons v. Supplying Demand, Inc., Case No. 1:22-cv-05480-FB-RML (E.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Supplying Demand -- https://supplyingdemand.com/ -- is a private-label manufacturer and distributor based in Murfreesboro, Tennessee.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com TAPPAN COLLECTIVE: Calcano Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against The Tappan Collective, Inc. The case is styled as Marcos Calcano, on behalf of himself and all other persons similarly situated v. The Tappan Collective, Inc., Case No. 1:22-cv-07839 (S.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Tappan Collective, Inc. -- https://www.tappancollective.com/ -- is an online gallery that supports emerging artists globally.[BN] The Plaintiff is represented by: Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (917) 796-7437 Fax: (212) 982-6284 Email: danalgottlieb@aol.com TEXAS A&M: America First Legal Files Suit Over Race Discrimination ------------------------------------------------------------------ Over the weekend, America First Legal, through its Center for Legal Equality, filed a landmark class-action lawsuit against Texas A&M University over its racially discriminatory faculty-hiring programs. AFL seeks declaratory and injunctive, as well as the appointment of a court monitor to oversee the A&M's faculty hiring and its "diversity office" to ensure that the university does not violate the nation's civil-rights laws. Legal Background. Numerous federal laws make it unlawful to discriminate against individuals on the basis of their race or sex. Title VI provides: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. Sec. 1981(a) provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens[.] Title IV provides: 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[.] Additionally, the Equal Protection Clause or the Fourteenth Amendment prohibits race and sex discrimination by state universities in all but the most compelling situations. To the extent that "affirmative action" has been tolerated in the student admissions context -- an issue about which AFL has recently filed a brief with the Supreme Court -- it is blatantly unlawful in other contexts. Yet universities and colleges across the country have adopted race-based hiring programs for faculty and staff -- similar to what is occurring in the private sector. Texas A&M is one such university. Texas A&M Unlawfully Discriminates In Its Faculty Hiring Based on Race. Texas A&M has engaged in a discriminatory hiring practice, choosing which candidates to hire based on their race or sex. In June, Texas A&M announced in an email to all of its deans that, based on its designation as a Hispanic Serving Institution by the United States Department of Education, it had been "charged with expanding the capacity of low-income, first-generation Hispanic students, and other underserved students and their communities." Texas A&M stated that "increasing opportunities for underserved students to interact and engage with faculty that share their ethnic, life, and cultural experiences are essential to achieving this goal. The presence of faculty of color is also integral to the University's mission to provide the highest quality of undergraduate and graduate education and develop new understandings through research and creativity." So Texas A&M created the "ACES Plus" Fellowship–ACES standing for "Accountability, Climate, Equity, and Scholarship"–dedicating $2 million dollars to provide matching base salary and benefits for "new mid-career and senior tenure-track hires from underrepresented minority groups, that contribute to moving the structural composition of our faculty towards parity with that of the State of Texas." White and Asian applicants do not qualify. Additionally, Texas A&M has established faculty-hiring lines that are reserved exclusively for members of "underrepresented" racial minorities." AFL obtained an email confirming that this practice was occuring, and that positions were being set aside that were not available for White and Asian applicants. This Lawsuit. AFL's client, Richard Lowery, faces unlawful discrimination by Texas A&M based on its discriminatory hiring practices, despite the fact that he is exceptionally well-qualified. In so doing, Texas A&M is violating Title VI, Title IX, 42 U.S.C. § 1981(a), and the Equal Protection Clause of the Fourteenth Amendment. The lawsuit asks the Court to: -- certify a class of all White and Asian men who stand ready and able to apply for faculty positions at Texas A&M; -- declare that Texas A&M is violating Title VI, Title IX, 42 U.S.C. § 1981(a), and the Equal Protection Clause of the Fourteenth Amendment; -- permanently enjoin Texas A&M from considering race or sex in the appointment, promotion, or compensation of its faculty; -- appoint a court monitor to oversee all decisions relating to the appointment, promotion, and compensation of faculty at Texas A&M to ensure that these decisions are free from race and sex discrimination of any sort, and require that all decisions relating to the appointment, promotion, and compensation of faculty at Texas A&M be pre-cleared by this Court; -- appoint a court monitor to oversee the "diversity office" at Texas A&M to ensure that it does not aid or abet violations of the nation's civil-rights laws. No discrimination means no discrimination. Texas A&M cannot move the "structural composition of [its] faculty towards parity with that of the State of Texas" without engaging in pervasive, methodical, and egregious racial discrimination against applicants who seek to become members of its faculty. America First Legal is proud to litigate this case on behalf of its client against this reprehensible, discriminatory action by Texas A&M. Statement from America First Legal President Stephen Miller: "History is being made today. America First Legal has filed a landmark class action lawsuit against Texas A&M University for its illegal and unconstitutional racial discrimination regime. Texas A&M is hiring -- and excluding -- professors solely due to the physical appearance of their skin or the ancestry of their family tree. This is vile and outrageous. We must extract the poison of bigotry coursing deep through the leadership of Texas A&M and restore civil rights and equality for all. Our lawsuit will send tremors through our corrupt institutions of ‘higher learning' making clear that racial discrimination will be met with righteous legal action in our courts of law. This action is being taken through AFL's new Center for Legal Equality, which continues to blaze new trails for justice in America," said Stephen Miller. Jack Resneck Jr., MD, President, American Medical Association, said "Patients and physicians have a right to expect health insurers to uphold their promise to provide fair and accurate payment for medical services. But alleged misconduct by Cigna has allowed the insurer's economic self-interest to be prioritized ahead of their promises to physicians in the MultiPlan Network and their patients. The AMA and other physician organizations allege that Cigna's misconduct is riddled with conflicts of interest and manipulations that routinely shortchanged payments to MultiPlan Network physicians and interfered with the patient-physician relationship by ignoring the MultiPlan contracts and making incorrect statements to patients about their liability for the unpaid portion of the billed charges. By joining Stewart v. Cigna as a plaintiff, the AMA hopes to shed light on Cigna's misconduct and create remedies so that patients and physicians can look forward to getting what they are promised." [GN] THIRD WAVE WATER: Slade Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Third Wave Water LLC. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Third Wave Water LLC, Case No. 1:22-cv-07845 (S.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Third Wave Water -- https://thirdwavewater.com/ -- creates the optimum water for brewing coffee.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com THOMAS J. VILSACK: Proctor Files Suit in E.D. Arkansas ------------------------------------------------------ A class action lawsuit has been filed against Thomas J. Vilsack, et al. The case is styled as Helen Proctor, on behalf of herself and others similarly situated v. Thomas J Vilsack, in his official capacity as Secretary of Agriculture, USDA Rural Development, USDA Housing Service, Michael Scott, Scott & Sons Construction, Case No. 2:22-cv-00157-BSM (E.D. Ark., Sept. 9, 2022). The nature of suit is stated as Accommodations Civil Rights for the Fair Housing Act. Thomas James Vilsack is an American politician serving as the 32nd United States Secretary of Agriculture in the Biden Administration.[BN] The Plaintiff is represented by: Julius Donald Kearney, Sr., Esq. KEARNEY LAW OFFICES P. O. BOX 6606 Pine Bluff, AR 71611 Phone: (870) 536-4056 Fax: (870) 536-0216 Email: kearneylawoffices@gmail.com TRACIE MARTYN: Hwang Files ADA Suit in E.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Tracie Martyn, Inc. The case is styled as Jenny Hwang, on behalf of herself and all others similarly situated v. Tracie Martyn, Inc., Case No. 1:22-cv-05500 (E.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Tracie Martyn, Inc. -- https://www.traciemartyn.com/ -- offers all-natural skincare and youth-restoring treatments from every insider's favorite facialist.[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 TRANSFORM SR BRANDS: Hwang Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Rebecca Transform SR Brands, LLC. The case is styled as Jenny Hwang, on behalf of herself and all others similarly situated v. Transform SR Brands, LLC, Case No. 1:22-cv-05443 (E.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Transform SR Brands doing business as Transformco -- https://transformco.com/ -- is a leading integrated retailer focused on seamlessly connecting the digital and physical shopping experiences to serve members.[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 TRITERRAS INC: $3.4MM in Attys.' Fees & Costs Awarded in Erlandson ------------------------------------------------------------------ Judge Cathy Seibel of the U.S. District Court for the Southern District of New York issued an order awarding $3.4 million in attorneys' fees and expenses in the lawsuit captioned JOHN A. ERLANDSON and JAMES IAN NORRIS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. TRITERRAS, INC. (f/k/a NETFIN HOLDCO), NETFIN ACQUISITION CORP., TRITERRAS FINTECH PTE. LTD., MVR NETFIN LLC, RICHARD MAURER, MARAT ROSENBERG, VADIM KOMISSAROV, GERALD PASCALE, SRINIVAS KONERU, JAMES H. GROH, ALVIN TAN, JOHN A. GALANI, MATTHEW RICHARDS, VANESSA SLOWEY and KENNETH STRATTON, Defendants, Case No. 7:20-cv-10795-CS (S.D.N.Y.). The Court awards the Plaintiffs' Lead Counsel attorneys' fees of one-third of the $9 million Settlement Amount, plus expenses in the amount of $38,872.83. The matter having come before the Court on Sept. 6, 2022, on the motion of Lead Counsel for an award of attorneys' fees and expenses and awards to the Plaintiffs. The Order incorporates by reference the definitions in the Stipulation and Agreement of Settlement dated April 27, 2022 (the "Stipulation"), and all capitalized terms used, but not defined here, will have the same meanings as set forth in the Stipulation. The Court has jurisdiction over the subject matter of this application and all matters relating thereto, including all Members of the Class who have not timely and validly requested exclusion. Notice of Lead Counsel's Fee Motion was given to all Class Members, who could be located with reasonable effort. The Court finds the form and method of notifying the Class of the Fee Motion met the requirements of Rule 23 of the Federal Rules of Civil Procedure and the Securities Act of 1933, as amended by the Private Securities Litigation Reform Act of 1995 (15 U.S.C. Section 77z-1(a)(7)), due process, and any other applicable law, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto. The Court awards Lead Counsel attorneys' fees of one-third of the Settlement Amount, plus expenses in the amount of $38,872.83, together with the interest earned on both amounts for the same time period and at the same rate as that earned on the Settlement Fund until paid. The Court finds that the amount of fees awarded is fair, reasonable, and appropriate under the "percentage-of-recovery" method. In making this award of fees and expenses to Lead Counsel, the Court has considered and found that: (a) the Settlement has created a fund of $9 million in cash that is already on deposit, and numerous Class Members who submit, or have submitted, valid Proof of Claim and Release forms will benefit from the Settlement created by Lead Counsel. At least 40,262 copies of the Notice were disseminated to potential Class Members indicating that Lead Counsel would move for attorneys' fees in an amount not to exceed one-third of the Settlement Amount and for expenses in an amount not to exceed $100,000, plus interest on both amounts, and no objections to the fees or expenses were filed by Class Members. Judge Seibel finds that the Lead Counsel expended substantial time and effort pursuing the Action on behalf of the Class, pursued the Action entirely on a contingent basis, and represented that they have devoted over 1,500 hours to achieve the Settlement. The Action involves complex factual and legal issues and, in the absence of settlement, would involve lengthy proceedings whose resolution would be uncertain. Had Lead Counsel not achieved the Settlement, there would remain a significant risk that the Class may have recovered less or nothing from the Defendants, Judge Seibel notes. Judge Seibel also finds that the attorneys' fees and expenses awarded are fair and reasonable, and that public policy concerns favor the award of reasonable attorneys' fees and expenses in securities class action litigation. Pursuant to 15 U.S.C. Section 77z-1(a)(4), the Court awards $10,000 each to Plaintiffs John A. Erlandson and James Ian Norris for the time they spent directly related to their representation of the Class. Any appeal or any challenge affecting the Court's approval regarding the Fee Motion will in no way disturb or affect the finality of the Judgment entered with respect to the Settlement. In the event that the Settlement is terminated or does not become Final or the Effective Date does not occur in accordance with the terms of the Stipulation, this Order will be rendered null and void to the extent provided in the Stipulation and will be vacated in accordance with the Stipulation. A full-text copy of the Court's Order dated Sept. 8, 2022, is available at https://tinyurl.com/3y67ha7j from Leagle.com. TRITERRAS INC: Court Approves Plan of Allocation in Erlandson Suit ------------------------------------------------------------------ Judge Cathy Seibel of the U.S. District Court for the Southern District of New York grants the Plaintiffs' motion for approval of the Plan of Allocation in the lawsuit entitled JOHN A. ERLANDSON and JAMES IAN NORRIS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. TRITERRAS, INC. (f/k/a NETFIN HOLDCO), NETFIN ACQUISITION CORP., TRITERRAS FINTECH PTE. LTD., MVR NETFIN LLC, RICHARD MAURER, MARAT ROSENBERG, VADIM KOMISSAROV, GERALD PASCALE, SRINIVAS KONERU, JAMES H. GROH, ALVIN TAN, JOHN A. GALANI, MATTHEW RICHARDS, VANESSA SLOWEY and KENNETH STRATTON, Defendants, Case No. 7:20-cv-10795-CS (S.D.N.Y.). The Order incorporates by reference the definitions in the Stipulation and Agreement of Settlement dated April 27, 2022 (the "Stipulation"), and all capitalized terms used, but not defined here, will have the same meanings as set forth in the Stipulation. Pursuant to and in full compliance with Rule 23 of the Federal Rules of Civil Procedure, the Court finds and concludes that due and adequate notice was directed to all persons, who are Class Members, who could be identified with reasonable effort, advising them of the Plan of Allocation and of their right to object thereto, and a full and fair opportunity was accorded to all persons and entities who are Class Members to be heard with respect to the Plan of Allocation. The Court finds and concludes that the formula for the calculation of the claims of Authorized Claimants which is set forth in the Notice of Pendency and Proposed Settlement of Class Action sent to Class Members provides a fair and reasonable basis upon which to allocate the proceeds of the Net Settlement Fund established pursuant to the Stipulation among the Class Members, with due consideration having been given to administrative convenience and necessity. The Court also finds and concludes that the Plan of Allocation, as set forth in the Notice, is, in all respects, fair and reasonable and the Court approves the Plan of Allocation. A full-text copy of the Court's Order dated Sept. 8, 2022, is available at https://tinyurl.com/2p92zrmn from Leagle.com. TRITERRAS INC: Court Issues Final Judgment in Erlandson Class Suit ------------------------------------------------------------------ Judge Cathy Seibel of the U.S. District Court for the Southern District of New York issued a final judgment and order of dismissal with prejudice in the lawsuit entitled JOHN A. ERLANDSON and JAMES IAN NORRIS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. TRITERRAS, INC (f/k/a NETFIN HOLDCO), NETFIN ACQUISITION CORP., TRITERRAS FINTECH PTE. LTD., MVR NETFIN LLC, RICHARD MAURER, MARAT ROSENBERG, VADIM KOMISSAROV, GERALD PASCALE, SRINIVAS KONERU, JAMES H. GROH, ALVIN TAN, JOHN A. GALANI, MATTHEW RICHARDS, VANESSA SLOWEY and KENNETH STRATTON, Defendants, Case No. 7:20-cv-10795-CS (S.D.N.Y.). The matter came before the Court pursuant to the Order Preliminarily Approving Settlement and Providing for Notice dated May 20, 2022, on the Plaintiffs' application for approval of the Settlement set forth in the Stipulation and Agreement of Settlement, dated as of April 27, 2022. The Court holds that this Final Judgment and Order of Dismissal with Prejudice ("Judgment") incorporates by reference: (a) the Stipulation; and (b) the Notice, Summary Notice, and Declarations of the Claims Administrator filed with the Court on Aug. 2, 2022, and Aug. 30, 2022. The Court has jurisdiction over the subject matter of the Action and over all parties to the Action, including all Members of the Class. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court affirms its determinations in the Order and finally certifies, for purposes of settlement only, a Class defined as all Persons who purchased or otherwise acquired the Class A common stock or warrants of Triterras from June 29, 2020, to and including Jan. 14, 2021. Excluded from the Class are the Defendants and their families, officers, affiliates, entities in which they have or had a controlling interest, and the legal representatives, heirs, successors-in-interest or assigns of any such excluded party. Also excluded from the Class are those Persons, who timely and validly requested exclusion from the Class and are listed on Exhibit 1 hereto as having submitted an exclusion request allowed by the Court. The Court affirms its determinations in the Order and finds, for the purposes of the Settlement only, that the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the number of Class Members is so numerous that joinder of all members is impracticable; (b) there are questions of law and fact common to the Class; (c) the Plaintiffs' claims are typical of the claims of the Class; (d) the Plaintiffs and Lead Counsel have fairly and adequately represented the interests of the Class and will continue to do so; (e) questions of law and fact common to Class Members predominate over any questions affecting only individual Class Members; and (1) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Pursuant to Rule 23, and for purposes of settlement only, the Court affirms its determinations in the Order and finally appoints Lead Plaintiff John A. Erlandson and additional named plaintiff James Ian Norris as Class Representatives and Robbins Geller Rudman & Dowd LLP as Class Counsel. The Notice of Pendency and Proposed Settlement of Class Action ("Notice") given to the Class was the best notice practicable under the circumstances, including the individual notice to all Class Members, who could be identified through reasonable effort. No Class Member is relieved from the terms of the Settlement, including the releases provided for therein, based upon the contention or proof that such Class Member failed to receive actual or adequate notice. A full opportunity has been offered to the Class Members to object to the proposed Settlement and to participate in the hearing thereon. Pursuant to Rule 23, the Court affirms its determinations in the Order, fully and finally approves the Settlement set forth in the Stipulation in all respects and finds that: (a) the Stipulation and the Settlement contained therein, are, in all respects, fair, reasonable, and adequate and in the best interest of the Class; (b) there was no collusion in connection with the Stipulation; (c) the Stipulation was the product of informed, arm's-length negotiations among competent, able counsel; and (d) the record is sufficiently developed and complete to have enabled the Plaintiffs and the Defendants to have adequately evaluated and considered their positions. Accordingly, the Court authorizes and directs implementation and performance of all the terms and provisions of the Stipulation, as well as the terms and provisions hereof. Except as to any individual claim of those Persons (identified in Exhibit 1 attached hereto) who have validly and timely requested exclusion from the Class, the Court dismisses the Action and all Released Claims of the Class with prejudice. The Settling Parties are to bear their own costs, except as and to the extent provided in the Stipulation and herein. The Releases set forth in Section 4 of the Stipulation, together with the definitions contained in the Stipulation relating thereto, are expressly incorporated herein by reference. Accordingly, the Court orders that upon the Effective Date, and as provided in the Stipulation, the Plaintiffs and each of the Releasing Plaintiff Parties will be deemed to have, and by operation of this Judgment will have, fully, finally, and forever waived, released, relinquished, discharged, and dismissed any and all Released Claims (including Unknown Plaintiffs' Claims) against the Released Persons, whether or not such Releasing Plaintiff Party executes and delivers the Proof of Claim and Release form or shares in the Settlement Fund. Claims to enforce the terms of the Stipulation are not released. Any Plan of Allocation submitted by Lead Counsel or any order entered regarding any attorneys' fee and expense application or application by Plaintiffs pursuant to 15 U.S.C. Section 78u-4(a)(4) in connection with their representation of the Class will in no way disturb or affect this Judgment and will be considered separate from this Judgment. The Defendants have denied and continue to deny liability and maintain that they have meritorious defenses, and have represented that they entered into the Settlement solely in order to avoid the cost and burden of litigation. Without affecting the finality of this Judgment in any way, the Court retains continuing jurisdiction over: (a) implementation of this Settlement and any award or distribution of the Settlement Fund, including interest earned thereon; (b) disposition of the Settlement Fund; (c) hearing and determining applications for attorneys' fees, expenses, and interest in the Action and any requested award for Plaintiffs; (d) all parties herein for the purpose of construing, enforcing, and administering the Stipulation; (e) Class Members for all matters relating to the Action; and (f) other matters related or ancillary to the foregoing. The administration of the Settlement, and the decision of all disputed questions of law and fact with respect to the validity of any claim or right of any Person to participate in the distribution of the Net Settlement Fund, will remain under the authority of the Court. The Court finds that during the course of the Action, the Settling Parties and their respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11. If the Settlement does not become effective in accordance with the terms of the Stipulation, or the Effective Date does not occur, then this Judgment will be rendered null and void to the extent provided by and in accordance with the Stipulation and will be vacated and, in such event, all orders entered and releases delivered in connection herewith will be null and void to the extent provided by and in accordance with the Stipulation, and the Settlement Fund will be returned in accordance with the Stipulation. Without further order of the Court, the Settling Parties may agree to reasonable extensions of time to carry out any of the provisions of the Stipulation. The Defendants have provided notification to all appropriate federal and state officials regarding the Settlement as required by 28 U.S.C. Section 1715. The Court directs immediate entry of this Judgment by the Clerk of the Court. A full-text copy of the Court's Final Judgment and Order dated Sept. 8, 2022, is available at https://tinyurl.com/yx27cswb from Leagle.com. TRUSTCO BANK: New York Court Allows Breach Class Action to Proceed ------------------------------------------------------------------ Tanner Horton-Jones, Esq., of Ballard Spahr LLP, disclosed that the New York federal district court has issued an order allowing a putative class action to proceed against Trustco Bank, finding that the plaintiff had stated a claim for breach of contract based on the bank's assessment of non-sufficient funds (NSF) fees. The complaint in Jenkins v. Trustco Bank alleges that Trustco's assessment of multiple NSF fees on the same transaction constituted 1) a breach of the covenant of good faith and fair dealing, 2) unjust enrichment, 3) a deceptive act or practice under New York General Business Law Sec. 349, and 4) a breach of contract. The court granted Trustco's motion to dismiss on all but the breach of contract claim. The order is significant because it is the second class action suit against Trustco this year that the New York federal district court has allowed to proceed on a breach of contract theory. The other suit, Lamoureux v. Trustco Bank, also concerns the bank's NSF and overdraft fee practices. The court in Jenkins noted that plaintiffs in both suits "alleged the same breach to an identical contract" and that the bank relied on the same portions of the contract for its defense in each case. The court then adopted the reasoning and finding from Lamoureux that the bank's contractual language about NSF fees is ambiguous, allowing the claim to survive the motion to dismiss. At issue in both suits is the bank's practice of treating each instance that a payment is re-presented as a new item subject to NSF or overdraft fees. Trustco maintains that, under its contract, each subsequent attempt by a merchant to re-present a payment that failed to go through the first time may be handled and treated as a separate "item." The plaintiffs argue that multiple attempts to process the same transaction must be treated as a single "item" as the term is used in the contract. In finding that each interpretation was reasonable, the court in Lamoureux observed that the language in Trustco's account agreement was similar to the terms used by other banks that several other courts had deemed ambiguous. Both Jenkins and Lamoureux are awaiting further proceedings. We will continue to monitor each for significant developments as they move forward. Last month, the FDIC issued new supervisory guidance on multiple NSF fees arising from the re-presentment of the same unpaid transaction. These cases are examples of the class action lawsuits that financial institutions have faced alleging breach of contract and other claims, some of which have resulted in substantial settlements, based on the failure to adequately disclose re-presentment NSF fee practices. We have handled and are presently defending several of these types of class actions. While neither the OCC, the FRB, nor the CFPB have taken a formal public position on the issue of re-presentment NSF fees, these agencies have already made overdraft practices a focus of concern and we expect them to follow the FDIC's position on re-presentment NSF fees. Overdraft and NSF fees also continue to be a focus of state regulators, with the New York State Department of Financial Services and the Division of Banks of the Massachusetts Office of Consumer Affairs and Business Regulation having issued guidance to their supervised institutions about overdraft and NSF fees. [GN] TURNKEY REALTY: Fails to Protect Customers' info, Checchia Alleges ------------------------------------------------------------------ STEVEN CHECCHIA, individually and on behalf of all others similarly situated, Plaintiff v. TURNKEY REALTY, LLC, Defendant, Case No. 2:22-cv-03640 (E.D. Pa., September 13, 2022) is a class action against the Defendant for negligence. The case arises from the unauthorized access of the Plaintiff's and Class members' personal identifiable information (PII) due to the Defendant's negligent acts and omissions. According to the complaint, the PII was compromised because of the Defendant's failure to: (i) adequately protect their PII; (ii) warn of the Defendant's inadequate information security practices; and (iii) effectively secure equipment and the database containing protected PII using reasonable and effective security procedures free of vulnerabilities and incidents. As a result, the Plaintiff and Class members have suffered actual and imminent injuries, including: (a) theft of their PII ; (b) costs associated with the detection and prevention of identity theft; (c) costs associated with time spent and the loss of productivity from taking time to address and attempt to ameliorate, mitigate, and deal with the consequences of the data breach; (d) invasion of privacy; (e) the emotional distress and anguish, stress, and annoyance of responding to, and resulting from, the data breach; (f) the actual and imminent injury arising from actual and/or potential fraud and identity theft posed by their personal data being placed in the hands of the ill-intentioned hackers and/or criminals; (g) damages to and diminution in value of their personal data entrusted to the Defendant; and (h) the continued risk to their PII, says the suit. Turnkey Realty, LLC is a real estate brokerage based in Pennsylvania. [BN] The Plaintiff is represented by: Andrew Carroll Esq. CARROLL LAW OFFICE, P.C. 427 North Packard Street, Hammonton, NJ 08037 Telephone: (856) 426-9815 E-mail: andrewcarrollesq@gmail.com - and - Manuel S. Hiraldo, Esq. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com - and - Michael L. Eisenband, Esq. 515 E. Las Olas Boulevard, Suite 120 Ft. Lauderdale, FL 33301 Telephone: (954) 533-4092 E-mail: MEisenband@Eisenbandlaw.com TURQUOISE HILL: Rio Tinto CFO to Remain Focus in Shareholders' Suit ------------------------------------------------------------------- Peter Ker, writing for Australian Financial Review, reports that Rio Tinto's chief operating officer, Arnaud Soirat, is likely to remain a focus of a lawsuit probing the miner's disclosure of cost and schedule blowouts at its Mongolian copper mine after an important ruling in a US court. Almost two years after dissident minority shareholders in Turquoise Hill Resources filed a class action against the company and its majority shareholder Rio, Judge Lewis Liman handed down orders that were mostly favourable for Rio but kept the case alive by refusing to dismiss some of the plaintiff's claims. Turquoise Hill owns 66 per cent of Mongolia's Oyu Tolgoi mine, but for most of the past decade the Canadian company has effectively outsourced management of a massive underground expansion of the mine to Rio, which owns 50.79 per cent of Turquoise Hill. Funds manager Pentwater and other investors argued they bought shares in Turquoise Hill at artificially high prices between July 17, 2018 and July 31, 2019 because Rio and Turquoise Hill had not properly disclosed cost and schedule blowouts on the Oyu Tolgoi expansion. The cost blowouts are now expected to be close to $US1.7 billion, while first production is set to be almost two years later than was expected when the investors were buying the Turquoise Hill shares. The most recent stage of the lawsuit has focused on whether investors like Pentwater had the legal right to mount a claim against Rio even though Rio was a fellow shareholder in Turquoise Hill and not the direct issuer of the shares they purchased. Even though Rio was Turquoise Hill's major shareholder and the provider of much of its information about the Oyu Tolgoi project, Judge Liman dismissed the notion that Rio was responsible for Turquoise Hill's market filings. After hearing claims that Rio knew the cost and schedule were rising at the same time as it was making public statements that the project remained on budget and on schedule, Judge Liman found that many of Rio's statements had legal safe harbour because they were accompanied by "forward-looking statement" disclosures. Judge Liman dismissed the notion that Rio's former chief executive, Jean-Sebastien Jacques, had knowingly tried to conceal the deteriorating state of the project and made a similar finding for the former executives of Turquoise Hill. But in a win for the plaintiffs, Judge Liman ruled that alleged assurances given by Mr Soirat during a television interview on the Mongolian program MBN World did not enjoy the legal safe harbour provided by "forward-looking statement" disclosures. Mr Soirat was Rio's copper boss when he appeared on the program in August 2018 and allegedly said the Oyu Tolgoi project was "on time . . . and on budget". "Because the Rio defendants have not proffered any evidence that meaningful cautionary language accompanied Soirat's statements on MBN World, these forward-looking statements are not entitled to protection," said Judge Liman in the order. The comments are not a judgement over whether Mr Soirat failed market disclosure obligations, but rather a finding that plaintiffs have the standing to pursue a claim over Mr Soirat's comments. Further legal argument will be required to determine whether Mr Soirat's comments were appropriate and Rio is expected to vigorously defend the issue. "Soirat's statements that the underground project was on plan and on budget were specific, as they related to those earlier projections and confirmed their ongoing accuracy. These statements implicitly confirmed that the OT underground project was still able to meet its production target in early 2021 and that the underground development project was projected to be at or under budget," said Judge Liman in his order. "A reasonable investor therefore could have relied on these statements in assessing an investment in OT [Oyu Tolgoi] through Turquoise Hill." The significant development in the two-year-old class action comes as Pentwater and some other minority shareholders have signalled they are unlikely to accept Rio's offer to buy their Turquoise Hill stock for $C40 per share. The offer was an improvement on the $C34 per share Rio offered in March as it tries to consolidate and simplify the ownership structure around Oyu Tolgoi, which is expected to be one of the world's top five copper mines by the end of this decade. [GN] TUTTLE-CLICK TUSTIN: Monte Suit Transferred to E.D. Michigan ------------------------------------------------------------ The case styled as Macias Monte, Marie Macias, on behalf of themselves and all others similarly situated v. Tuttle-Click Tustin, Inc., Fiat Chrysler Automobiles FCA US, LLC, Does 1-50, inclusive, Case No. 8:22-cv-01250 was transferred from the U.S. District Court for Central District of California, to the U.S. District Court for Eastern District of Michigan on Sept. 14, 2022. The District Court Clerk assigned Case No. 2:22-cv-11893-DML to the proceeding. The nature of suit is stated as Other Contract for Breach of Contract. Tuttle-Click Tustin, Inc. -- https://www.tuttleclick.com/ -- is a car dealer in Tustin, California.[BN] The Defendants are represented by: Scott H Morgan, Esq. Stephen A. D'Aunoy, Esq. THOMPSON COBURN LLP One US Bank Plaza Saint Louis, MO 63101 Phone: (314) 552-6000 Fax: (314) 552-7000 Email: smorgan@thompsoncoburn.com sdaunoy@thompsoncoburn.com TWITTER INC: Baker Sues Over Decline in Securities Market Value --------------------------------------------------------------- William Baker, Individually and on behalf of all others similarly situated v. TWITTER, INC., JACK DORSEY, NED SEGAL, and PARAG AGRAWAL, Case No. 2:22-cv-06525 (C.D. Cal., Sept. 13, 2022), is brought to seeks to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934 as a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares. The Defendants made statements that were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: Twitter knew about security concerns on their platform; Twitter actively worked to hide the security concerns from the board, the investing public, and regulators; contrary to representations in SEC filings, Twitter did not take steps to improve security; Twitter's active refusal to address security issues increased the risk of loss of public goodwill; and as a result, the Defendants' statements about Twitter's business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. On August 23, 2022, before market hours, CNN published an article titled, "Ex-Twitter exec blows the whistle, alleging reckless and negligent cybersecurity policies." On this news, Twitter shares traded at unusually high volumes and Twitter share prices fell $3.15, or over 7%, to close at $39.86 on August 23, 2022, damaging investors. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares, the Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff purchased Twitter securities during the Class Period and was economically damaged thereby. Twitter purports to be a global social media platform for public self-expression and conversation in real time.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Phone: (213) 785-2610 Facsimile: (213) 226-4684 Email: lrosen@rosenlegal.com TWITTER INC: Seeks Dismissal of Class Action Over Elon Musk Buyout ------------------------------------------------------------------ Christina Tabacco, writing for Law Street, reports that Twitter has asked the court overseeing the declaratory relief suit against it and Elon Musk to toss the case in part because it is duplicative of relief Twitter itself seeks: forcing Musk to purchase the company for $44 billion under the agreed-to terms. The company's motion to dismiss says the shareholder cannot enforce rights to a contract they are not a party to, and secondarily, that the suit belongs, if anywhere, in Delaware Chancery Court where the main battle between Musk and Twitter is playing out as is another nearly identical shareholder suit. The motion to dismiss comes after Magistrate Judge Sallie H. Kim denied the plaintiff's bid to coordinate discovery with the Chancery case between Musk and Twitter. The opinion said that the request was unsubstantiated and too burdensome in view of the gravity and complexity of the case and its expedited trial schedule. Now, Twitter has asked the court to reject the case, first stating that "[u]nwilling to stand back -- even briefly -- while Twitter pursues enforcement of the Merger Agreement against the Musk Defendants, Plaintiff … insists on pursuing a wholly unnecessary claim in this Court demanding substantially the same relief that both Twitter and another Twitter stockholder are pursuing on an expedited schedule in Delaware." Citing a purported lack of subject matter jurisdiction, Twitter points to the fact that the shareholder plaintiff is not a party to the buyout deal. "A party's inability to enforce the terms of a contract as a non-party raises a standing issue that defeats jurisdiction," the motion explains. Furthermore, the company says the court has discretion to exercise jurisdiction over the case pursuant to an doctrine that permits courts to abstain from deciding cases whether the relief sought is declaratory in nature, as here, where the shareholder seeks a declaration that Musk is in breach of the buyout agreement and ordering him to consummate the purchase. Lastly, Twitter adds that the case is in the wrong forum and cannot be transferred to another federal court because of the transacting parties' agreed-to Delaware Chancery forum. At the very least, Twitter says the case should be transferred to the District of Delaware. For their part, Musk's holding company defendants made similar arguments in a separate filing seeking dismissal of the case. The plaintiff is represented by Cotchett, Pitre & McCarthy, LLP and Bottini & Bottini Inc. and Musk by Quinn Emanuel Urquhart & Sullivan LLP and Twitter by Shearman & Sterling LLP. [GN] UBER TECHNOLOGIES: Gavric Contract Suit Removed to S.D. California ------------------------------------------------------------------ The case styled ALEXANDER GAVRIC, individually and on behalf of all others similarly situated v. UBER TECHNOLOGIES, INC.; RASIER, LLC; RASIER-CA, LLC; PROGRESSIVE COMMERCIAL CASUALTY CORP., dba PROGRESSIVE INSURANCE; BLUE HILL SPECIALTY INSURANCE COMPANY, INC.; and DOES 1 through 100, inclusive, Case No. 37-2022-00027585-CU-BT-CTL, was removed from the Superior Court of California, County of San Diego, to the U.S. District Court for the Southern District of California on September 13, 2022. The Clerk of Court for the Southern District of California assigned Case No. 3:22-cv-01391-BEN-DDL to the proceeding. The case arises from the Defendants' alleged breach of contract, breach of implied covenant of good faith and fair dealing, and intentional misrepresentation by sustaining damages as a result of unlawful withholding and delaying payments under their Uber ride share service contract. Uber Technologies, Inc. is an American mobility as a service provider, headquartered in San Francisco, California. Rasier, LLC is a wholly-owned subsidiary of Uber Technologies in California. Rasier-CA, LLC is a wholly-owned subsidiary of Uber Technologies in California. Progressive Commercial Casualty Corp., doing business as Progressive Insurance, is an insurance firm based in Ohio. Blue Hill Specialty Insurance Company, Inc. is an insurance firm based in Ohio. [BN] The Defendants are represented by: Ian S. Shelton, Esq. EVERSHEDS SUTHERLAND (US) LLP 500 Capitol Mall, Suite 1750 Sacramento, CA 95814 Telephone: (916) 844-2965 Facsimile: (916) 241-0501 E-mail: ianshelton@eversheds-sutherland.com ULTRA PERSONNEL: Blumenthal Nordrehaug Files Labor Class Action --------------------------------------------------------------- The San Francisco employment law attorneys, at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action lawsuit against Ultra Personnel, LLC alleging the company violated the California Labor Code. The lawsuit against Ultra Personnel, LLC is currently pending in the Monterey County Superior Court, Case No. 22CV002398. According to the lawsuit filed, Ultra Personnel, LLC allegedly (a) failed to pay minimum wages, (b) failed to pay overtime wages, (c) failed to provide legally required meal and rest periods, (d) failed to provide accurate itemized wage statements, (e) failed to reimburse employees for required expenses, (f) failed to provide wages when due, and (g) failed to pay sick pay wages, all in violation of the applicable Labor Code sections listed in California Labor Code Sections Sections 201-204, 226, 226.7, 233, 246, 510, 512, 1194, 1197, 1197.1, 2802, and the applicable Wage Order(s), and thereby gives rise to civil penalties as a result of such alleged conduct. Ultra Personnel, LLC allegedly failed to reimburse employees for required business expenses. California Labor Code Section 2802 expressly states that "an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties . . . " During employment, Plaintiff and other California Class Members were allegedly required to use their personal cellular phones and personal home offices as a result of and in furtherance of their job duties. For more information about the class action lawsuit against Ultra Personnel, LLC, call (800) 568-8020 to speak to an experienced California employment attorney today. Blumenthal Nordrehaug Bhowmik De Blouw LLP is a labor law firm with law offices located in San Diego County, Riverside County, Los Angeles County, Sacramento County, Santa Clara County, Orange County and San Francisco County. The firm has a statewide practice of representing employees on a contingency basis for violations involving unpaid wages, overtime pay, discrimination, harassment, wrongful termination and other types of illegal workplace conduct. [GN] UNIFIRST CORPORATION: Faces Carr Suit Over Unpaid Overtime Wages ---------------------------------------------------------------- CHRISTOPHER CARR, individually and on behalf of all others similarly situated, Plaintiff v. UNIFIRST CORPORATION, Defendant, Case No. 1:22-cv-11500 (D. Mass., September 13, 2022) is a class action against the Defendant for its failure to compensate the Plaintiff and similarly situated employees overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act. Mr. Carr worked for UniFirst as a route service representative from approximately November 2018 to February 2021. UniFirst Corporation is a provider of image enhancing uniforms and work apparel, headquartered in Boston, Massachusetts. [BN] The Plaintiff is represented by: Philip J. Gordon, Esq. Kristen M. Hurley, Esq. GORDON LAW GROUP, LLP 585 Boylston Street Boston, MA 02116 Telephone: (617) 536-1800 Facsimile: (617) 536-1802 E-mail: pgordon@gordonllp.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Taylor S. Montgomery, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com tmontgomery@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com UNION PACIFIC: Loses Bid to Dismiss Baker's 2nd Amended Complaint ----------------------------------------------------------------- In the case, JOHN BAKER, Plaintiff v. UNION PACIFIC RAILROAD COMPANY, Defendant, Case No. 8:20CV315 (D. Neb.), Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska denies the Defendant's motion to dismiss the second amended complaint. The lawsuit is an action for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section 12101, et seq. The Plaintiff alleges that Union Pacific Railroad Company's ("U.P." or "the Railroad") imposed unlawful work restrictions that prevented him from returning to work for a year after a fitness-for-duty assessment. His remaining claims are for violations of the ADA under theories of disparate treatment and disparate impact and for failure to accommodate. Mr. Baker's claim was originally filed with five other plaintiffs as part of a class action. The Court's certification of class-action status was reversed by the Eighth Circuit Court of Appeals. The matter was remanded, and the Court later severed the six original plaintiffs' actions and ordered each plaintiff to file an amended complaint in the related cases. In his second amended complaint, the Plaintiff brought an individual action alleging, inter alia, that he had been damaged as a result of the same fitness-for-duty policies and practices that had been challenged in the former class action. He alleges that he experienced lightheadedness outside of work and underwent medical testing in 2014. Pending the results of that testing, Baker asked to be temporarily removed from the list of qualified hostlers. The Defendant then took Baker completely out of service without pay. He further alleges that, although Baker's treating doctors gave him a clean bill of health and his neurologist cleared him to return to work without restrictions, the Railroad's Associate Medical Director imposed work restrictions on Baker that resulted in his removal from work without pay for one year. Baker was allowed to return to his job in late 2015. He alleges that his removal is consistent with U.P.'s company-wide changes to its fitness-for-duty program under Chief Medical Officer Dr. John Holland. In his prayer for relief, the Plaintiff asks the Court to enjoin U.P. from engaging in the allegedly unlawful employment policies and practices, and seeks an award of backpay, retirement and other benefits, punitive damages and "such other and further relief as the Court deems just and equitable." U.P. earlier moved for summary judgment on all of Baker's claims, including the disparate-impact claim. The Court denied U.P.'s motion. U.P. later moved to bifurcate the trial into two stages -- first for the Plaintiff's disparate treatment and failure to accommodate claims, and second for his disparate impact claims -- and the Court denied that motion. In denying the motion to bifurcate, the Court held that the facts and evidence that relate to the Plaintiff's disparate treatment claims and his disparate impact claim largely overlap, noting that the facts and evidence included evidence of the Defendant's treatment of other individuals pursuant to fitness for duty evaluations that involve the same policies and decision-makers, and have similar effects on other employees. The Defendant now moves to dismiss Baker's disparate impact claim for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3). It argues that Baker has no standing to pursue the disparate impact claim because the claim, which entitles the plaintiff only to equitable relief, is moot. It contends that because Baker has returned to his job, he has no current injury that the equitable remedies of front pay or reinstatement can address. The Railroad also argues that injunctive relief is unavailable because it would affect only other employees injured by the allegedly unlawful fitness-for-duty practices, not the Plaintiff. In response, Baker argues that there is a live controversy on front pay and reinstatement in that future benefits are at issue. Further, he argues that its position miscasts the scope of relief available to victims of disability discrimination. He contends Congress granted courts broad discretion to fashion make-whole relief for victims of workplace discrimination, including individual and programmatic relief. He also argues that this is especially true when the Plaintiff alleges -- and the evidence in the record shows -- the Defendant's discrimination was part of an across-the-board practice of excluding qualified workers. Judge Bataillon finds the Railroad's arguments on subject matter jurisdiction, standing, and mootness are unavailing in the context of the Court's broad discretion in remedying employment discrimination. He finds that the Plaintiff's reinstatement to his job did not render his claim for equitable relief moot under either a disparate treatment or a disparate impact theory. The Railroad has not offered the plaintiff complete relief. There remains an issue on future lost retirement credits, vacation time, and sick leave. The Defendant has not met its heavy burden of showing the challenged conduct cannot reasonably be expected to recur. Also, Judge Bataillon finds the Railroad's argument that the Court is without authority to issue an across-the-board injunction in an individual case is without merit. U.P. apparently seeks to use concepts of standing and mootness in an effort to limit the relief the Plaintiff can potentially obtain. Baker seeks make-whole relief under disability discrimination in employment statutes. Disparate impact and disparate treatment are separate theories under which the Plaintiff can recover. The Court, in its discretion, can fashion relief to remedy past and future discrimination. Moreover, the Eighth Circuit's denial of class certification does not foreclose injunctive and declaratory relief. U.P. chose to challenge the Court's class action certification in the Eighth Circuit. The standards for Rule 23 certification differ from the district court's wide latitude under 42 U.S.C. Section 2000e-5(g)(1). Whether the Plaintiff is entitled to equitable relief and the extent and nature of any such relief, will be determined at trial. Accordingly, Judge Bataillon finds the Defendant's motion to dismiss for lack of standing should be denied. Based on the foregoing, Judge Bataillon denies the Defendant's motion to dismiss. A full-text copy of the Court's Sept. 9, 2022 Memorandum & Order is available at https://tinyurl.com/5da2cduf from Leagle.com. UNITED STATES: Bell Files Suit in Ct. of Federal Claims ------------------------------------------------------- A class action lawsuit has been filed against the United States. The case is styled as Alberta Bell, Monica Branson, Tevita Gaines, Itzel Gonzalez, Marcia Mackall, on behalf of themselves and all others similarly situated v. USA, Case No. 1:22-cv-01280-DAT (U.S. Ct. of Federal Claims., Sept. 13, 2022). The nature of suit is stated as Civilian Pay – FLSA for the Tucker Act. The U.S. -- https://www.usa.gov/ -- is a country of 50 states covering a vast swath of North America, with Alaska in the northwest and Hawaii extending the nation's presence into the Pacific Ocean.[BN] The Plaintiffs are represented by: Jacob Yaakov Statman, Esq. SNIDER & ASSOCIATES, LLC (MD) 600 Reisterstown Road, 7th Floor Baltimore, MD 21208 Phone: (410) 653-9060 Fax: (410) 653-9061 Email: jstatman@sniderlaw.com UNITED STATES: Epperson Must File 1st Amended Complaint, Court Says ------------------------------------------------------------------- In the lawsuit captioned CHRIS EPPERSON, Plaintiff v. UNITED STATES, et al., Defendants, Case No. 1:22-cv-00855-SKO (E.D. Cal.), Magistrate Judge Sheila K. Oberto of the U.S. District Court for the Eastern District of California issued a First Screening Order directing the Plaintiff to file a first amended complaint; or notify the Court that he wishes to stand on his complaint. Plaintiff Epperson is proceeding pro se and in forma pauperis in this action. He filed his complaint on July 11, 2022. Upon review, the Court concludes that the complaint fails to state any cognizable claims. Judge Oberto states that the Plaintiff has the following options as to how to proceed. The Plaintiff may file an amended complaint, which the Court will screen in due course. Alternatively, he may file a statement with the Court stating that he wants to stand on this complaint and have it reviewed by the presiding district judge, in which case the Court will issue findings and recommendations to the district judge consistent with this Order. If he does not file anything, the Court will recommend that the case be dismissed. The Plaintiff's Complaint The Plaintiff drafted his complaint using the general complaint form provided by the Court. The caption of the complaint lists the United States as the Defendant. The complaint lists as defendants: "FBI," "CIA," "DEA," and "Donald Trump." The Plaintiff has checked both federal question and diversity of citizenship as the basis of jurisdiction. In the section in which he is asked to indicate which of his federal constitutional or federal statutory rights have been violated, he lists the following: Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, and Rehabilitation Act, 29 U.S.C. Section 791. In the section directed to the basis for diversity jurisdiction, the Plaintiff states he is a citizen of the State of California, but he does not provide citizenship information for the Defendants. He instead identifies Geoffrey Binriey as a Defendant and alleges that Mr. Binriey is a citizen of the State of Texas. He lists the amount in controversy as "economic oppression 1 million dollars." The statement of claim section states as follows: "economic discrimination based on sex gender nationality race and religion." The requested relief section states as follows: "economic sanction embargo economic [sic] boycott equal opportunity employment discrimination forced labour bonded labour individuals." The Civil Cover Sheet lists the Defendant as the United States and states that the county of residence for the Defendant is "49 states FBI CIA DEA." The basis of jurisdiction is "U.S. Government Plaintiff." The nature of suit is listed as "other civil rights." The U.S. Civil Statute under which the Plaintiff is filing is described as "472c," and the cause of action is described as "Article III Constitution." The Plaintiff has checked the box on the civil cover sheet indicating this is a class action under Federal Rule of Civil Procedure 23, and he lists the demand as "zillion" dollars. Rule 8 of the Federal Rules of Civil Procedure Rule 8 requires that a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Judge Oberto finds that the Plaintiff's complaint violates Rule 8 because it does not contain a short and plain statement of the claim demonstrating that he is entitled to relief. Although the Federal Rules use a flexible pleading policy, the Plaintiff is required to give fair notice to the Defendants of the basis of the claim and must allege facts that support the elements of the claim plainly and succinctly. In the case, the statement of claim section merely states, "economic discrimination based on sex gender nationality race and religion," Judge Oberto notes. There are no factual allegations in the complaint that identify the basis for the Plaintiff's Title VII and Rehabilitation Act claims, Judge Oberto holds. Furthermore, a complaint is required to contain sufficient factual content for the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged. Again, without any factual allegations, it is impossible to determine what the Plaintiff is alleging has occurred or how the Defendants are alleged to be responsible. Further, Rule 8 requires that the complaint must state a demand for the relief sought. The relief requested in the complaint is "economic sanction embargo economic boycott equal opportunity employment discrimination forced labour bonded labour individuals," the meaning of which is unclear to the Court. Accordingly, the Plaintiff needs to clearly articulate the relief that he is seeking in the action (e.g., damages or injunctive relief) if he elects to file an amended complaint, Judge Oberto states. The Plaintiff Cannot Maintain a Class Action The Plaintiff's civil cover sheet indicates that the complaint is a class action under Federal Rule of Civil Procedure 23. As the Plaintiff was previously advised, Epperson v. Foreign Ministry Affairs, No. 1:21-cv-00785-DAD-SKO, Doc. 4, the Plaintiff cannot bring a class action. Judge Oberto explains that the Plaintiff is a non-lawyer proceeding without counsel. It is well established that a layperson cannot ordinarily represent the interests of a class, Judge Oberto opines, citing White v. Geren, 310 F. App'x 159, 160 (9th Cir. 2009). Unless the Plaintiff can provide facts demonstrating he is statutorily authorized to pursue a claim on behalf of a class, Judge Oberto holds that the Plaintiff must amend his complaint to proceed as an individual litigant. Leave to Amend The Court has screened the Plaintiff's complaint and finds that it fails to state any cognizable claims. Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, "the court should freely give leave [to amend] when justice so requires." Accordingly, the Court will provide the Plaintiff with time to file an amended complaint, so he can provide additional factual allegations. The Plaintiff is granted leave to file an amended complaint within thirty days. If the Plaintiff chooses to amend his complaint, he must clearly state in the amended complaint his legal claims, identify which defendant the claim is against, and allege facts that support and show that the specific defendant engaged in conduct asserted as the legal basis for the claim. The Plaintiff should note that although he has been given the opportunity to amend, it is not for the purpose of changing the nature of this suit or adding unrelated claims, Judge Oberto states. The Plaintiff is advised that an amended complaint supersedes the original complaint, and it must be complete in itself without reference to the prior or superseded pleading. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint," refer to the appropriate case number, and be an original signed under penalty of perjury. Judge Oberto says the Plaintiff has a choice on how to proceed. The Plaintiff may file an amended complaint if he believes that additional true factual allegations would state cognizable claims. If he files an amended complaint, the Court will screen that complaint in due course. Alternatively, the Plaintiff may choose to stand on his complaint subject to the Court issuing findings and recommendations to a district judge consistent with this Order. Based on the foregoing, Judge Oberto holds that: 1. within thirty (30) days from the date of service of this Order, the Plaintiff will either: a. File a First Amended Complaint; or b. Notify the Court in writing that he wants to stand on this complaint; 2. if the Plaintiff chooses to file an amended complaint, he will caption the amended complaint First Amended Complaint and refer to case number 1:22-cv-00855-SKO; and 3. failure to comply with this Order may result in the dismissal of this action. A full-text copy of the Court's First Screening Order dated Sept. 8, 2022, is available at https://tinyurl.com/3fyxxkas from Leagle.com. USHEALTH ADVISORS: Muccio Suit Removed to S.D. Florida ------------------------------------------------------ The case styled as Stephen Muccio, individually and on behalf of all others similarly situated v. USHealth Advisors, LLC, Case No. 502022CA008205XXXXMB was removed from the Circuit Court of the 15th Judicial Circuit, to the U.S. District Court for Southern District of Florida on Sept. 14, 2022. The District Court Clerk assigned Case No. 9:22-cv-81436-DMM to the proceeding. The nature of suit is stated as Other Personal Property. USHEALTH Group -- https://www.ushealthgroup.com/ -- is a leading health coverage provider, offering affordable and personalized plans for everyone looking for a custom coverage solution.[BN] The Plaintiff is represented by: Manuel Santiago Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Blvd., Ste 1400 Fort Lauderdale, FL 33394 Phone: (954) 400-4713 Email: mhiraldo@hiraldolaw.com The Defendant is represented by: Jeffrey Aaron Backman, Esq. Roy Taub, Esq. GREENSPOON MARDER, P.A. 200 East Broward Blvd., Suite 1500 Fort Lauderdale, FL 33301 Phone: (954) 491-1120 Fax: (954) 213-0140 Email: jeffrey.backman@gmlaw.com roy.taub@gmlaw.com VALENTINO USA: Joint Request for Briefing Sched OK'd in Benitez --------------------------------------------------------------- In the class action lawsuit captioned as Josefina Benitez, et al., v. Valentino U.S.A. Inc., Case No. 1:19-cv-11463-MKV-RWL (S.D.N.Y.), the Hon. Judge Mary Kay Vyskocil entered an order granting Parties' joint request for briefing schedule concerning the Plaintiffs' Motion for Class Certification, filed on August 26, 2022. This is the parties' first request for a briefing schedule in connection with the Motion and granting this request does not affect any other scheduled date. The parties jointly request the following briefing schedule: -- The Defendant's time to serve and file its opposition to the Motion is extended from September 9, 2022, until October 11, 2022; and -- The Plaintiffs' time to serve and file their reply brief in further support of their Motion is extended from September 16, 2022, to November 1, 2022. A copy of the Parties' motion dated Sept. 1, 2022 is available from PacerMonitor.com at https://bit.ly/3ddNZXt at no extra charge.[CC] VOLKSWAGEN AG: Cornell Awarded $8.3M Settlement in Battery Suit --------------------------------------------------------------- Hydrogen Central reports that Cornell awarded $8.3M for fuel cell and battery research from VW class action settlement. Professor Hector D. Abruna, the E. M. Chamot Professor in the Department of Chemistry and Chemical Biology in the College of Arts and Sciences, has been awarded $8.3 million to further his group's research related to fuel cells and advanced battery technologies. Ray Jayawardhana, the Harold Tanner Dean of Arts and Sciences and a founding dean of The 2030 Project: A Cornell Climate Initiative said: "The new funding will help accelerate and scale up these efforts towards real-world impact." The funding comes from the 2019 settlement of a consumer class-action lawsuit. After consumers were compensated, the remaining settlement fund of $76 million was offered, in a competitive process, to organizations such as universities and nonprofits whose work mitigates or addresses the impacts of climate change. The A&S proposal was among 29 selected for funding, and represents the largest amount awarded to a single department. Abruña's research focuses on the development and characterization of new materials for fuel cells and batteries using a wide variety of techniques. The new funding will support coordinated research, development and demonstration activities to accelerate integrating Cornell's advanced fuel cell and battery materials into fuel cell and battery powered vehicles, respectively. To do this, it will support new fundamental and applied research in Abruna's labs focused on these needs. It will also support the establishment of a small fleet of fuel-cell and battery powered (EV) cars along with a renewable ("green") hydrogen fueling station and EV fast chargers. Cornell would engage automotive manufacturing companies such as GM, Toyota, Tesla, Mercedes‐Benz, Nissan and Hyundai -- many of which already have existing collaborations with Cornell -- to provide the fuel-cell and battery powered vehicles that would make up the above-mentioned fleet. The researchers also plan to modify the fuel-cell stack in one fuel cell powered car as well as the battery stack in one of the battery-powered (EV) vehicles to integrate Cornell's fuel cell and battery technologies, respectively, making it possible to study the technologies under real world conditions. Professor Hector D. Abruna, the E. M. Chamot Professor in the Department of Chemistry and Chemical Biology in the College of Arts and Sciences, said: This is much more than fundamental research, but rather a demonstration project that will make these technologies available to the Cornell community. "It will be a true living laboratory, providing access to both battery and fuel-cell operated cars to the Cornell community." The funding will include fast-charging battery stations and a hydrogen fueling station. The grant will also support eight researchers who will work on both battery and fuel-cell related activities, Abruna said. "We may be the first hydrogen refueling station in New York state," he said, "and one of a handful across the country, especially at a major university." Abruna said he hopes the project will inspire people across the Cornell community and beyond to get active and engaged and learn more about battery and fuel-cell powered vehicles, which hold great promise to help mitigate global climate change. [GN] WALGREENS BOOTS: Judge Dismisses Class Action Over Opioid Policy ---------------------------------------------------------------- Eric Cervone, writing for The Blaze, reports that a federal judge has dismissed a proposed class action lawsuit accusing Walgreens Boots Alliance Inc. -- one of the largest pharmacy chains in the U.S. -- of discriminating against people with disabilities by discouraging pharmacists from filling high-dose opioid prescriptions. Walgreens and other pharmacies have found themselves stuck in the middle of the debate over America's opioid crisis. The pharmacies face thousands of lawsuits nationwide accusing them of "failing to stop illegal opioid distribution, contributing to an epidemic of addiction that has killed more than half a million people over two decades," reports Reuters. In August, Walgreens, CVS, and Walmart were ordered to pay $650 million after a federal judge held the companies responsible for the spread of illicit opioid usage in two Ohio counties. Similarly, in a separate August case, a federal judge ruled that Walgreens "substantially contributed" to San Francisco's opioid epidemic. "This decision gives voice to the thousands of lives lost to the opioid epidemic," San Francisco City Attorney David Chiu said at the time of the local ruling. "This crisis did not come out of nowhere. It was created by the opioid industry, and local jurisdictions like San Francisco have had to shoulder the burden for far too long." Some patients, however, say that people with severe pain have been harmed by efforts to curb the illegal use of opioids. Susan Smith is the plaintiff who brought the recently dismissed suit against Walgreens. Smith said that Walgreens instituted new corporate policies instructing pharmacists to "apply extra scrutiny to high dose or prolonged opioid prescriptions and warned them that they could face liability if they did not," according to Reuters. Smith argued that this policy constituted a violation of the Americans with Disabilities Act and California civil rights law because people with disabilities were more likely to need high-dose opioid prescriptions. Walgreens said that Smith failed to explain how its policy resulted in prescriptions not being filed, and how it discriminated against people with disabilities. The judge sided with Walgreens, stating that Smith "has not plausibly alleged that the policy is 'so closely associated' with disabled people" that it amounts to discriminating against them. The case is Smith v. Walgreens Boots Alliance Inc., U.S. District Court, Northern District of California, No. 3:20-cv-05451. [GN] WALGREENS BOOTS: Smith's 3rd Amended Suit Dismissed With Prejudice ------------------------------------------------------------------ In the case, SUSAN SMITH, Plaintiff v. WALGREENS BOOTS ALLIANCE, INC., et al., Defendants, Case No. 20-cv-05451-CRB (N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for the Northern District of California grants Walgreens' motion to dismiss the Plaintiff's Third Amended Complaint with prejudice. The Plaintiff brings a nationwide class action lawsuit against Walgreens, alleging that Walgreens maintains a policy relating to prescription opioid dispensing that discriminates against disabled people. In 2016, the Center for Disease Control ("CDC") published guidelines to provide "better clinician guidance on opioid prescribing." The CDC guidelines recommend that clinicians "prescribe the lowest effective dosage" of opioids and "carefully justify" decisions to prescribe opioid dosages that exceed 90 morphine milligram equivalents ("MMEs"). In addition, they recommend that when "opioids are used for acute pain," a clinician "should prescribe no greater quantity than needed for the expected duration of pain severe enough to require opioids." More specifically, the guidelines state that when opioids are prescribed for acute pain: "Three days or less will often be sufficient; more than seven days will rarely be needed." The Plaintiff alleges that in the 2010s, various pharmacies, including Walgreens, faced lawsuits alleging that they "had inadequate policies and procedures in place to ensure that prescriptions they filled were valid prescriptions for legitimate medical purposes." She alleges that in response to the lawsuits, Walgreens improperly used the CDC guidelines to create a policy that discriminates against disabled people. In particular, Walgreens allegedly implemented a policy to discourage its pharmacists from filling opioid prescriptions that exceed 90 MMEs and 7 days (the "dose and duration threshold"). She alleges that Walgreens' policy "incentivizes, pressures and/or instructs, expressly or implicitly, its pharmacists to not fill such prescriptions and/or fill them at lesser amounts which do not exceed the CDC Guideline dose and duration thresholds, treating those thresholds as hard and fast limits." The alleged policy does not prevent Walgreens pharmacists from filling opioid prescriptions that exceed the dose and duration threshold. Instead, the alleged policy "actively discourages and burdens the process of filling valid prescriptions exceeding the Guideline dosage and duration thresholds." The Plaintiff alleges that "Walgreens' pharmacists are made aware through their managers and their training that by filling such prescriptions, the pharmacists are susceptible to being fired and risk being left on their own in any civil or criminal investigation relating to the filling of the prescription." To avoid "being fired" and "being left on their own in any civil or criminal investigation," Walgreens pharmacists allegedly "take steps to avoid having to fill the prescription by imposing obstacles that others whose prescriptions are not for opioids exceeding the CDC Guideline dose and duration thresholds do not face." The Plaintiff alleges that the dose and duration policy discriminates on the basis of disability because "research has suggested a link between opioid prescriptions and disability program participation." She alleges that "persons receiving prescriptions which exceed the higher end of the dosage (90 MME) and duration (7 days) thresholds are highly likely to be disabled within the meaning of the ADA." The Court has twice granted Walgreens' motions to dismiss, and Walgreens now moves to dismiss the Plaintiff's Third Amended Complaint ("TAC"). The TAC's allegations generally mirror the allegations in the Second Amended Complaint ("SAC"). The Plaintiff asserts that (1) Walgreens' policy facially discriminates against disabled people; (2) Walgreens' policy disparately impacts disabled people; and (3) Walgreens fails to provide meaningful accommodations. None of these claims are plausibly alleged, Judge Breyer finds. First, the Plaintiff does not plausibly allege that Walgreens' policy facially discriminates against disabled people. Facial discrimination occurs when a policy applies to people based on disability. The alleged policy is not facially discriminatory. To the extent that the Plaintiff alleges proxy discrimination, that claim also fails. The Plaintiff has not plausibly alleged that the policy is "so closely associated" with disabled people that it amounts to proxy discrimination. While there is a "sheer possibility" that most or all people with opioid prescriptions exceeding the dose and duration threshold are disabled, the Plaintiff -- despite multiple opportunities to amend -- has not pleaded enough "factual content" to make this allegation plausible. Next, the Plaintiff does not plausibly allege a claim based on disparate impact. Judge Breyer says a facially neutral policy may support a "disparate impact claim based on lack of meaningful access" where the "services, programs, and activities remain open and easily accessible to others." The service at issue is the ability to fill opioid prescriptions exceeding the dose and duration threshold, and the alleged policy that affects access to that service applies to all customers. Any customer seeking to fill an opioid prescription that exceeds the dose and duration threshold might encounter challenges filling their prescription, regardless of their disability status. The Plaintiff does not plausibly allege that the policy imposes any unique burdens on disabled people. Walgreens' alleged policy applies the same to everyone who seeks to fill a prescription exceeding the dose and duration thresholds. Any customer seeking to fill a prescription exceeding the dose and duration threshold may encounter obstacles when they try to do so. No unique burden is placed on disabled people -- they do not lack meaningful access to a service that remains open and easily accessible to others. Last, Judge Breyer finds that the Plaintiff's reasonable modification claim fails for similar reasons. A reasonable modification claim requires a plaintiff to adequately allege that the requested modification is (1) reasonable and (2) necessary to accommodate the plaintiff's disability. An accommodation is necessary where failure to provide it would deprive a disabled person from having a "like experience" as a non-disabled person. In the case, every customer seeking to fill an opioid prescription exceeding the dose and direction threshold may encounter the friction of a pharmacist who is "expected to either refuse to fill the prescription, only partially fill the prescription, or impose some other requirement not imposed on other customers." As a result, both disabled and non-disabled people have a "like experience" under the alleged policy, and Plaintiff's reasonable modification claim fails. For the foregoing reasons, Judge Breyer grants Walgreens' motion to dismiss. Because it is the Plaintiff's third amended complaint, the motion to dismiss is granted with prejudice. He denies the Plaintiff's motion to strike as moot because it does not rely on the Good Faith Dispensing Policies. Judge Breyer denies the parties' motions for sanctions because neither party has established any sanctionable conduct. He denies Walgreens' motion to dismiss for lack of personal jurisdiction as moot. A full-text copy of the Court's Sept. 9, 2022 Order is available at https://tinyurl.com/4jys6pc3 from Leagle.com. WAN FU YUAN: Chien Sues Over Unpaid Overtime for Restaurant Staff ----------------------------------------------------------------- JOE CHIEN, on behalf of himself and all others similarly situated, Plaintiff v. WAN FU YUAN, INC. d/b/a Hunan Taste, FBGM INC. d/b/a Hunan Taste, MEI LI HSIUNG, administrator of the Estate of Joseph Hsiung a/k/a Mei-Li Hsiung a/k/a Mei-Li Hsuing a/k/a Mary Hsuing, MEI LI HSIUNG a/k/a Mei-Li Hsiung a/k/a Mei-Li Hsuing a/k/a Mary Hsuing, and DAVID HSIUNG, Defendants, Case No. 2:22-cv-05527 (D.N.J., September 13, 2022) is a class action against the Defendants for failure to compensate the Plaintiff and similarly situated restaurant employees overtime pay for all hours worked in excess of 40 hours in a workweek in violation of the Fair Labor Standards Act and New Jersey Wage and Hour Law. The Plaintiff worked as a fry wok at Defendants' restaurants under the trade name Hunan Taste, located in New Jersey from May 5, 2013 until June 27, 2020. Wan Fu Yuan, Inc. is an owner and operator of a restaurant under the name Hunan Taste, located at 67 Bloomfield Avenue, Denville New Jersey. FBGM Inc. is an owner and operator of a restaurant under the name Hunan Taste, located at 4 Alvin Place Montclair New Jersey. [BN] The Plaintiff is represented by: Aaron B. Schweitzer, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard, Suite 103 Flushing, NY 11355 Telephone: (718) 762-1324 E-mail: troylaw@troypllc.com WARM GLOW CANDLE: Hernandez Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Warm Glow Candle Company. The case is styled as Janelys Hernandez, on behalf of herself and all others similarly situated v. Warm Glow Candle Company, Case No. 1:22-cv-07767 (S.D.N.Y., Sept. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Warm Glow -- https://warmglow.com/ -- offers candles that are 100% hand dipped in America in the great state of Indiana.[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 WARNER BROS: Ganaway Sues Over Unlawful Disclosure of Identities ---------------------------------------------------------------- Chantele Ganaway, individually and on behalf of all others similarly situated v. WARNER BROS. DISCOVERY, INC., Case No. 1:22-cv-04929 (N.D. Ill., Sept. 12, 2022), is brought against Warner Bros. Discovery, Inc., as the owner of CNN.com, for violating the federal Video Privacy Protection Act ("VPPA") by disclosing its digital subscribers' identities and Video Media to Facebook without the proper consent. The Plaintiff's claims arise from the Defendant's practice of knowingly disclosing to a third party, Meta Platforms, Inc. ("Facebook"), data containing the Plaintiff's and other digital-subscribers Class Members' personally identifiable information or Facebook ID ("FID") and the computer file containing video and its corresponding URL viewed ("Video Media") (collectively, "Personal Viewing Information"). The VPPA prohibits "video tape service providers," such as CNN.com, from knowingly disclosing consumers' personally identifiable information, including "information which identifies a person as having requested or obtained specific video materials or services from a video tape provider," without express consent in a stand-alone consent form. The Facebook pixel is a code Defendant installed on CNN.com allowing it to collect users' data. More specifically, it tracks when digital subscribers enter CNN.com or CNN.com's accompanying App and view Video Media. CNN.com tracks and discloses to Facebook the digital subscribers' viewed Video Media, and most notably, the digital subscribers' FID. This occurs even when the digital subscriber has not shared (nor consented to share) such information. Importantly, Defendant shares the Personal Viewing Information--i.e., digital subscribers' unique FID and video content viewed--together as one data point to Facebook. Because the digital subscriber's FID uniquely identifies an individual's Facebook user account, Facebook--or any other ordinary person--can use it to quickly and easily locate, access, and view digital subscribers' corresponding Facebook profile. Put simply, the pixel allows Facebook to know what Video Media one of its users viewed on CNN.com. Thus, without telling its digital subscribers, Defendant profits handsomely from its unauthorized disclosure of its digital subscribers' Personal Viewing Information to Facebook. It does so at the expense of its digital subscribers' privacy and their statutory rights under the VPPA. The Defendant chose to disregard the Plaintiff's and hundreds of thousands of other CNN.com digital subscribers' statutorily protected privacy rights by releasing their sensitive data to Facebook. Accordingly, the Plaintiff brings this class action for legal and equitable remedies to redress and put a stop to Defendant's practices of intentionally disclosing its digital subscribers' Personal Viewing Information to Facebook in knowing violation of VPPA, says the complaint. The Plaintiff began a digital subscription to CNN.com in 2010 and continues to maintain the subscription to this day. Warner Bros. Discovery, Inc. is a publicly traded corporation headquartered in New York City.[BN] The Plaintiff is represented by: Brandon M. Wise, Esq. Adam Florek, Esq. PEIFFER WOLF CARR KANE CONWAY & WISE, LLP 818 Lafayette Ave., Floor 2 St. Louis, MO 63104 Phone: 314-833-4825 Email: bwise@peifferwolf.com aflorek@peifferwolf - and - Patrick Muench, Esq. BAILEY & GLASSER LLP 318 W. Adams St., Ste. 1512 Chicago, IL 60606 Phone: 312.500.8680 Email: pmuench@baileyglasser.com - and - Michael L. Murphy, Esq. BAILEY & GLASSER LLP 1055 Thomas Jefferson Street NW, Suite 540 Washington, DC 20007 Phone: 202.494.3531 Email: mmurphy@baileyglasser.com WELLS FARGO: Wins Bid to Confirm Arbitration Award in Wilson Suit ----------------------------------------------------------------- In the lawsuit titled MOSANTHONY WILSON, individually and on behalf of all others similarly situated, Plaintiff v. WELLS FARGO & CO., WELLS FARGO BANK, N.A., and DOES 1 through 5, inclusive, Defendants, Case No. 3:20-cv-02307-RBM-WVG (S.D. Cal.), Judge Ruth Bermudez Montenegro of the U.S. District Court for the Southern District of California, grants Wells Fargo's motion to lift stay and confirm arbitration award. Defendants Wells Fargo & Co. and Wells Fargo Bank, N.A. (collectively, "Wells Fargo") moved for an order: (1) lifting the stay entered in this matter on May 10, 2021; and (2) confirming, pursuant to 9 U.S.C. Section 9, the final award issued by the American Arbitration Association ("AAA") in the arbitration between Plaintiff Mosanthony Wilson and Wells Fargo. The Plaintiff is a Wells Fargo customer, who enrolled in Wells Fargo's Debit Card Overdraft Service ("DCOS"), under which Wells Fargo may authorize and pay certain debit-card or ATM transactions that result in an overdraft fee. He incurred overdraft fees in connection with his use of DCOS. He subsequently filed this putative class action on Nov. 25, 2020, alleging Wells Fargo violated: (1) Regulation E (12 C.F.R. Sections 1005, et seq.), which implements the Electronic Funds Transfer Act; and (2) California's Unfair Competition Law (Cal. Bus. & Prof. Code Sections 17200, et seq.), by assessing DOCS overdraft fees on his account allegedly in violation of Regulation E. Wells Fargo moved to compel arbitration of the Plaintiff's claims on March 3, 2021, relying on an arbitration agreement contained in his account agreement. On May 10, 2021, the Hon. Dana M. Sabraw granted Wells Fargo's motion to compel arbitration, staying this case and ordering the parties to submit to binding arbitration. This action was transferred to Judge Montenegro on April 12, 2022. On July 28, 2022, the parties filed a joint report regarding the arbitration result, informing the Court the parties had arbitrated the Plaintiff's claims, culminating with an arbitration hearing held on June 23, 2022, before Arbitrator Janice Sperow, who was appointed by AAA to preside over the arbitration. On July 14, 2022, AAA issued the Final Award, which found in favor of Wells Fargo on all of the Plaintiff's claims. On Aug. 5, 2022, Wells Fargo filed the instant Motion, with a noticed hearing date of Sept. 12, 2022. The Plaintiff did not file a timely opposition, and as of the date of this Order no opposition has been filed. On Sept. 2, 2022, Wells Fargo filed a reply in support of its Motion, asking the Court to deem the Plaintiff's failure to file any response as consent to Wells Fargo's Motion being granted. Motion to Lift Stay Judge Montenegro states that the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants, citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). The corollary to this power is the ability to lift a stay previously imposed. The Court stayed this case pending the completion of the arbitration proceedings, and such arbitration proceedings have now ended. Accordingly, the Court grants Wells Fargo's motion to lift the stay. Motion to Confirm Arbitration Award The Federal Arbitration Act ("FAA") provides that, when a party seeks an order confirming an arbitration award, "the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11" of the FAA. Judge Montenegro says there has been no motion to vacate, modify, or correct the Final Award. Based on the record submitted with the Motion, it is apparent the arbitrator attempted to thoughtfully apply the relevant law to the facts presented in this case. There is nothing before the Court or in the Motion to suggest the Final Award is "completely irrational" or that the Final Award constitutes a manifest disregard of the law. The Court also notes the Plaintiff failed to timely respond to the Motion and has not filed an opposition noting any objections to the Final Award. For these reasons, the Court must confirm the Final Award and grant Wells Fargo's Motion. Accordingly, the Court grants Wells Fargo's motion to lift the stay and confirm the arbitration award. As no matters remain in dispute, it is further ordered that the Plaintiff's claims are dismissed with prejudice. The Clerk of Court is directed to close the case. A full-text copy of the Court's Order dated Sept. 8, 2022, is available at https://tinyurl.com/yc29wczd from Leagle.com. WEST TOWN: Agrees to Settle Racketeering Class Suit for $10-M ------------------------------------------------------------- Mike Leonard, writing for Bloomberg Law, reports that West Town Bank & Trust will pay $10 million to end racketeering litigation over its alleged scheme to refer residential mortgage holders to a title insurer, All Star Title Inc., in exchange for kickbacks paid in postage stamps, according to federal court filings in Maryland. If approved by a judge, the settlement would resolve class action claims facing West Town in the US District Court for the District of Maryland. The lawsuit didn't target All Star Title, which has allegedly participated in at least two similar rackets involving other banks. [GN] WESTERN UNION: Cruz Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Western Union Holdings, Inc. The case is styled as Miriam Cruz, on behalf of herself and all others similarly situated v. Western Union Holdings, Inc., Case No. 1:22-cv-05462 (S.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Western Union Company -- https://www.westernunion.com/ -- is an American multinational financial services company, headquartered in Denver, Colorado.[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 WILCO LIFE: Class Certification Bid Due Jan. 20, 2023 ----------------------------------------------------- In the class action lawsuit captioned as JULIE GRUNDSTROM, Individually, and as-in-interest to DR. RICHARD I. APPLETON and on Behalf of the Class, v. WILCO LIFE INSURANCE COMPANY, an Indiana Corporation, Case No. 3:20-cv-03445-MMC (N.D. Cal.), the Hon. Judge Maxine M. Chesney entered an order extending discovery and class-certification deadlines as follows: -- Plaintiff's deadline to disclose September 15, 2022 experts as to class certification: -- Defendant's deadline to disclose November 1, 2022 experts as to class certification motion: -- Deadline to complete fact and November 15, 2022 expert discovery related to class certification motion: -- Plaintiff's deadline to file January 20, 2023 motion for class certification: Wilco Life operates as an insurance company. A copy of the Court's order dated Sept. 1, 2022 is available from PacerMonitor.com at https://bit.ly/3DCHzvZ at no extra charge.[CC] WILLIAM HENRY: Martinez Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against William Henry, LLC. The case is styled as Pedro Martinez, individually and as the representative of a class of similarly situated persons v. William Henry, LLC, Case No. 1:22-cv-05482 (E.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. William Henry -- https://www.williamhenry.com/ -- is a luxury brand creating timeless personal style for men through jewelry and accessories crafted with honor and integrity.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com YALE UNIVERSITY: Michel Seeks to Certify Class Action ----------------------------------------------------- In the class action lawsuit captioned as JONATHAN MICHEL, on behalf of himself and all others similarly situated, v. YALE UNIVERSITY, Case No. 3:20-cv-01080-SALM (D. Conn.), the Plaintiff asks the Court to enter an order certifying case as a class action. Yale University is a private Ivy League research university in New Haven, Connecticut. A copy of the Plaintiff's motion to certify class dated Sept. 2, 2022 is available from PacerMonitor.com at https://bit.ly/3BNIFnb at no extra charge.[CC] The Plaintiff is represented by: John Soumilas, Esq. James A. Francis, Esq. FRANCIS MAILMAN SOUMILAS, P.C. 1600 Market Street, Suite 2510 Philadelphia, PA 19103 Telephone: (215) 735-8600 Facsimile: (215) 940-8000 E-mail: jfrancis@consumerlawfirm.com jsoumilas@consumerlawfirm.com - and - THE GOLAN FIRM, PLLC 2000 M Street, N.W., Suite #750-A Washington, DC 20036 Telephone: (866) 298-4150 Facsimile: (928) 441-8250 E-mail: ygolan@tgfirm.com - and - Sarah Poriss, Esq. ATTORNEY AT LAW, LLC www.sarahporiss.com 777 Farmington Ave., 1st Fl. West Hartford, CT 06119 Telephone: (860) 233-0336 Facsimile: (866) 424-4880 E-mail: sarahporiss@prodigy.net ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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