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/raid1/www/Hosts/bankrupt/CAR_Public/220928.mbx C L A S S A C T I O N R E P O R T E R Wednesday, September 28, 2022, Vol. 24, No. 188 Headlines 1CANOE2 LLC: Dicks Files ADA Suit in S.D. New York 525 AMERICA: Zinnamon Files ADA Suit in S.D. New York 7 GRAMS CAFFE-175: Dawkins Files ADA Suit in E.D. New York ABBOTT LABORATORIES: Faces Suit Over Ovulation Test Kit Products ADVANCED MARKETING: Lamberth Sues Over Unpaid Wages and Benefits AEGEAN MARINE: $7.45MM in Attys.' Fees Awarded in Securities Suit AEGEAN MARINE: Deloitte Dismissed W/ Prejudice From Securities Suit APPLE INC: Wants to Pause Securities Suit for Interlocutory Appeal APRIO LLP: Court Allows More Time to File Class Cert Bid Response ASHLEY FURNITURE: Faces Class Action Lawsuit Over Service Plans ASSESSOR OF ROCKVILLE CENTRE: Andrade Files Suit in N.Y. Sup. Ct. ASSESSOR OF VALLEY STREAM: Murphy Files Suit in N.Y. Sup. Ct. ASTRAZENECA PLC: Judge Tosses Class Suit Over Failed Vaccine Trials AUSTRALIA: Faces Suit Over National Disability Insurance Scheme AUTOMATED PET CARE: Topalli Suit Removed to M.D. Florida BARCLAYS PLC: Faces Class Suit Over $17.6-B Debt Sale Blunder BAYER HEALTHCARE: Hitt Sues Over Defective and Toxic Collars BAYER HEALTHCARE: Mohamed Sues Over Defect Inherent in Collars BEST BUY STORES: Alvelo FCRA Suit Removed to S.D. New York BIMBO BAKERIES: Martinez Sues Over Failure to Provide Wages BP EXPLORATION: Court Dismisses Graham B3 Suit With Prejudice BUMBLE INC: Colon Sues Over Holding of Voting Power CANADA: Federal Court Certifies RCMP Class Action Lawsuit CENTER FOR SCIENCE: Henderson Sues Over Unlawful Disclosure of Data CO-DIAGNOSTICS INC: Lee Sues Over Decline in Stock Market Value COLLECTOR STORE: Dicks Files ADA Suit in S.D. New York COMBI USA INC: Velazquez Files ADA Suit in S.D. New York COMCAST CORP: Golden Sues Over Unlawful Disclosure of Personal Data CONDOR OUTDOOR: Ortiz Files ADA Suit in W.D. New York CORNERSTONE NATIONAL: Reynolds Files Suit in W.D. Missouri COTY INC: Meza Sues Over Deceptive and Unlawful Labeling COUNTER BRANDS: Hernandez Sues Over Unsolicited Marketing CRESCO LABS: Emperor Sues Over Unpaid Overtime Wages DBI SERVICES: Priest's Default Judgment Bid Denied W/o Prejudice DENIHAN OWNERSHIP: Dawkins Files ADA Suit in E.D. New York DEUTSCHE BANK: Agrees to Settle Shareholders' Suit for $26.3-M ENERGY TRANSFER: Appeals Class Cert. Ruling in Allegheny Cty. Suit EVER AFTER: Music Festival Organizers May Face Refund Class Suit EXECUPHARM INC: Third Circuit Revives Data Breach Class Action FIRST TACTICAL: Ortiz Files ADA Suit in W.D. New York FLORIDA: A&M Students File Suit Over Racially Biased Funding Gap FLORIDA: Seeks Dismissal of Class Action Over Medicaid Program FLOWERS FOODS: Salgado Sues Over Unpaid Statutorily Required Wages FREEDOM FINANCIAL: Rainford Sues Over Unpaid Overtime Premiums GEORGETOWN FLOWERS: Zinnamon Files ADA Suit in S.D. New York GILBANE FEDERAL: Morrobel Sues to Recover Unpaid Overtime Wages GOLDEN STATE: Denial of Bid for Arbitration in Hunt Suit Affirmed GOODTHINGS INCORPORATED: Dicks Files ADA Suit in S.D. New York GOOGLE LLC: Stellman Sues Over Deceptive Price Optimization Program GRAVITY DEFYER: Mosher-Clark Sues Over False Advertising GULF WINDS: Appeal Filed in Hauser Class Suit H&K ENGINEERING: Ledet Sues to Recover Unpaid Overtime Wages H. N. FERNANDEZ: Dicks Files ADA Suit in S.D. New York HARBOR MARINAS: Zinnamon Files ADA Suit in S.D. New York HEALTHMARKETS INSURANCE: Minor Files TCPA Suit in N.D. Texas HEALTHWORKS AGENCY: Johnson Sues Over Unsolicited Telemarketing HEALTHY PAWS PET: Benanav Suit Transferred to E.D. Pennsylvania HILCORP SAN JUAN: White River Suit Removed to D. New Mexico HUDSON VALLEY: Denial of Arbitration Bid in Zachman Suit Vacated KEYSTONE RV: 9th Cir. Affirms Summary Judgment Order in Cole Suit MAJOR LEAGUE: Agrees to Pay $185M Settlement in Labor Class Suit MERCK & CO: Gardasil Class Action Conference Set on October 11 META PLATFORM: Suit Tackles Mental Health Effects of Social Media MGM GRAND: Shortchanges Guests by Not Dispensing Change, Suit Says MONEY STORE: Mazzei Appeals Atty. Fee Bid Ruling to 6th Cir. NATIONAL BANK: Ontario Court Certifies Mutual Funds Class Action NELNET SERVICING: Cordaro Files Suit in D. Nebraska NONNI'S FOODS: Misleads Consumers as to Lemon Content in Cookies NOTIFIES CO-DIAGNOSTICS: Lead Plaintiff Appointment Due Oct. 17 ONETOUCHPOINT INC: Faces Class Action Suits Over Data Breach OPTAVIA LLC: Class Settlement in Douglass Suit Gets Prelim. Nod ORGANIC NATURAL: Miller Files TCPA Suit in M.D. Florida PETCO HEALTH: Court Grants Bid to Compel Arbitration in Jordan Suit PNC FINANCIAL: Agrees to Face Class Action Over 401(k) Plan Fees PROCTER & GAMBLE: Palmer Sues Over False and Misleading Labeling PURPLE NON STOP: Rangel Sues Over Unpaid Minimum, Overtime Wages RBP CHEMICAL: King Sues Over Unpaid Overtime Wages SARAYA USA: Scott Sues Over False and Deceptive Marketing SATELLITE HEALTHCARE: Sued Over Unpaid Minimum, Overtime Wages SCOOT EDUCATION: McCrary Sues Over Unpaid Overtime Wages SEED TO STEM: Jones Files ADA Suit in S.D. New York SEMA4 HOLDINGS: Faces Helo Suit Over Share Price Decline SHALOM HOME CARE: Mendoza Sues Over Failure to Pay Overtime Wages SHARP CHULA: Underwood Labor Suit Removed to S.D. California TAHOE RESOURCES: Court Temporarily Lifted Stay of Securities Suit TATE & KIRLIN: Carter Sues Over Unlawful Disclosure of Debt TESLA INC: Faces False Ads Class Action Over Self-Driving Cars TESLA INC: Matsko Sues Over Misleading and Deceptive Statements TURQUOISE HILL: New York Court Dismisses Securities Class Action TWITTER INC: Bids for Lead Plaintiff Appointment Due November 14 UNION PACIFIC: Motions in Limine in Baker Suit Granted in Part UNITED STATES: Air Force Fails to Repeal Class Cert. in COVID Suit UNITEDHEALTH GROUP: Court Enters Final Judgment in MSSNY ERISA Suit WENTZVILLE R-IV: C.K.-W. Appeals Preliminary Injunction Bid Denial WEST VIRGINIA: Crouch Appeals Summary Judgment in Fain Suit WESTCO CHEMICALS: Diaz Appeals Summary Judgment in ERISA Suit WP OPERATIONS: Settlement Deal in Clements Wins Initial Nod YOURTRAVELBIZ.COM: Faces Class Action Over Illegal Pyramid Scheme ZILLOW GROUP: Kauffman Sues Over Unauthorized Collection of Data [*] Class Action Suits Against Food Cos. Over False Ads Discussed ********* 1CANOE2 LLC: Dicks Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against 1canoe2, LLC. The case is styled as Victoria Dicks, on behalf of herself and all others similarly situated v. 1canoe2, LLC, Case No. 1:22-cv-07921 (S.D.N.Y., Sept. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. 1canoe2 -- https://1canoe2.com/ -- is an illustration company that spreads joy through cheerful, thoughtful paper goods and gifts.[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 525 AMERICA: Zinnamon Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against 525 America, LLC. The case is styled as Warren Zinnamon, on behalf of himself and all others similarly situated v. 525 America, LLC, Case No. 1:22-cv-08004 (S.D.N.Y., Sept. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. 525 America -- https://www.525america.com/ -- offers the latest Collection of sweaters, cardigans, dresses & more.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com 7 GRAMS CAFFE-175: Dawkins Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against 7 Grams Caffe-175, LLC. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. 7 Grams Caffe-175, LLC, Case No. 1:22-cv-05599-AMD-JRC (E.D.N.Y., Sept. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Seven Grams Caffe -- https://sevengramscaffe.com/ -- is an independent coffee roaster and bakery based in New York City, known for its chocolate chip cookies.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com ABBOTT LABORATORIES: Faces Suit Over Ovulation Test Kit Products ---------------------------------------------------------------- Kendall Heebink, writing for Law Street, reports that five individuals filed suit on Sept. 12 in the Northern District of California against defendant Abbott Laboratories, Alere, Procter & Gamble Manufacturing Company, SPD Swiss Precision Diagnostics GMBH, Church & Dwight Co. Inc., Target Corporation, and Walgreen Co. The class action complaint alleges that the defendants have intentionally misrepresented their ovulation test kit products as ovulation trackers in an attempt to deceive consumers and reap profits. The complaint explains that millions of individuals buy and rely on the ovulation test kits sold by the defendants for family planning purposes. The defendants advertise the ovulation test kits as "being able to tell women with 99% or greater accuracy when they will ovulate, and thus when they are the most fertile and most likely to be able to become pregnant." Despite the defendant's methods of advertising, the complaint contends that the aforementioned ovulation test kits test levels of luteinizing hormone (LH) rather than ovulation, even though the two are not always correlated. LH levels often do rise when a woman is ovulating, but the complaint specifies that "LH levels can spike at varying times in the menstrual cycle for a variety of other reasons unrelated to ovulation." The plaintiffs argue that the defendants intentionally misrepresent their products as ovulation test kits when, in actuality, they are LH test kits. They claim that the defendants do not advertise their products as such because they are aware that they would be less attractive to women seeking to become pregnant. The complaint concludes that the defendants' misconduct allows them to "capitalize on reproductive anxiety and reap massive profits, well in excess of $5,000,000 each year from unwitting consumers." The complaint cites claims for violations of the California Consumer Legal Remedies Act, the California Unfair Competition Law and the California False Advertising Law. The plaintiffs are seeking class certification, favorable judgment on each count, injunctive relief, restitution, compensatory, exemplary, and statutory damages, pre- and post-judgment interest, litigation fees, a trial by jury, and any other relief deemed proper by the court. The plaintiffs are represented in the litigation by Umberg Zipser LLP and Glancy Prongay & Murray LLP. [GN] ADVANCED MARKETING: Lamberth Sues Over Unpaid Wages and Benefits ---------------------------------------------------------------- Brittany Lamberth, on behalf of herself and all others similarly situated v. ADVANCED MARKETING & PROCESSING, INC., d/b/a PROTECT MY CAR, Case No. 8:22-cv-02167-CEH-CPT (M.D. Fla., Sept. 19, 2022), is brought for collection of unpaid wages and benefits for 60 calendar days pursuant to the Workers Adjustment and Retraining Notification Act of 1988. The Plaintiff's employment with the Defendant was terminated as part of a "mass layoff" or "plant closing" as defined by the WARN Act, for which they were entitled to receive 60 days advance written notice under the WARN Act from the Defendant. The Defendant failed to provide their full-time employees with the sixty-day notice required under the WARN Act prior to terminating more than fifty of those workers beginning in July 2022. The Defendant is liable under the WARN Act for the failure to provide the Plaintiff at least 60 days advance notice of their termination as required by the WARN Act, says the complaint. The Plaintiff is a resident of Pasco County, Florida and was employed by the Defendant until her termination without cause on August 9, 2022. The Defendant is a Florida Profit Corporation with its principal place of business in St. Petersburg, Pinellas County, Florida.[BN] The Plaintiff is represented by: Jason B. Woodside, Esq. WOODSIDE LAW, P.A. 100 South Ashley Drive, Suite 600 Tampa, FL 33602 Phone: (813) 606-4872 Fax: (813) 333-9845 Email: Jason@woodsidelawpa.com AEGEAN MARINE: $7.45MM in Attys.' Fees Awarded in Securities Suit ----------------------------------------------------------------- In the case, IN RE AEGEAN MARINE PETROLEUM NETWORK, INC. SECURITIES LITIGATION, Case No. 1:18-cv-04993 (NRB) (S.D.N.Y.), Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York grants the Lead Counsel's motion for an award of attorneys' fees and reimbursement of expenses and the Lead Counsel's application for the establishment of a Litigation Expense Fund. The matter came for hearing before the Court on Sept. 13, 2022 (the "Final Approval Hearing") on the Lead Counsel's motion for an award of attorneys' fees and reimbursement of expenses incurred in the action, an award pursuant to 15 U.S.C. Section 78u-4(a)(4) and the Lead Counsel's application for the establishment of a Litigation Expense Fund (the "Fee and Expense Application"). No Settlement Class Member has filed objections to the Fee and Expense Application. In connection with the Partial Settlements, Judge Buchwald awards the Lead Plaintiff's Counsel fees in the amount of $7.45 million plus interest earned thereon for the same time period and at the same rate as that earned on the Gross Settlement Funds until the fee is paid, and reimbursement of the Counsel's expenses in amount of $350,318.76. The award of attorneys' fees and expenses will be paid to the Lead Counsel from the Gross Settlement Funds upon entry of the Order, subject to the terms, conditions, and obligations of the Stipulations entered into with PwC Greece and Deloitte Greece. In accordance with 15 U.S.C. Section 78u-4(a)(4), Lead Plaintiff Utah Retirement System is awarded $10,000 for reimbursement of their expenses in the representation of the Settlement Class. Said awards of attorneys' fees and Litigation Expenses will be allocated proportionally between the PwC Greece Settlement Fund (50% of Court awarded fees and expenses) and the Deloitte Greece Settlement Fund (50% of the Court awarded fees and expenses). The Lead Counsel is also entitled to establish a Litigation Expense Fund in the amount of $500,000, subject to the following terms and conditions: (a) The Lead Counsel is directed to place $250,000 from each Gross Settlement Fund in an interest bearing account held by Lead Counsel; (b) The Lead Counsel may withdraw funds from the Litigation Expense Fund to pay reasonable and necessary litigation costs and expenses of pursuing the remaining claims in the Action against the Non-Settling Defendants without further authorization from this Court; (c) The Lead Counsel must maintain a full accounting of all sums advanced from the Litigation Expense Fund and, in any quarter where monies are withdrawn, submit quarterly in camera summaries to the Court detailing the withdrawals; (d) At the conclusion of the Action, the Lead Counsel must submit a full accounting of sums advanced from the Litigation Expense Fund for costs and expenses; and (e) The Lead Counsel will be required to reimburse the Class for any amount the Court later finds to have been improperly withdrawn. Exclusive jurisdiction is retained over the subject matter of the Action and over all parties to it, including the administration and distribution of the Total Net Partial Settlement Funds to Settlement Class Members. A full-text copy of the Court's Sept. 14, 2022 Order is available at https://tinyurl.com/j55szzkp from Leagle.com. AEGEAN MARINE: Deloitte Dismissed W/ Prejudice From Securities Suit ------------------------------------------------------------------- In the case, IN RE AEGEAN MARINE PETROLEUM NETWORK, INC. SECURITIES LITIGATION, Case No. 1:18-cv-04993 (NRB) (S.D.N.Y.), Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York enters an Order and Final Judgment with Prejudice Regarding Deloitte Certified Public Accountants, S.A. The matter came before the Court pursuant to the Order Preliminarily Approving Settlement with Deloitte Certified Public Accountants, S.A. and Providing for Notice dated June 3, 2022, on the application of the Lead Plaintiff Utah Retirement Systems and Defendant Deloitte Certified Public Accountants, S.A. ("Deloitte Greece"), to determine: (i) whether the terms and conditions of the Stipulation and Agreement of Partial Settlement with Deloitte Certified Public Accountants, S.A., dated March 24, 2022, are fair, reasonable and adequate for the settlement of all claims asserted by the Lead Plaintiff on behalf of itself and the Settlement Class, against Defendant Deloitte Greece (the "Settling Defendant") in the above-captioned Action, and should be approved; (ii) whether judgment should be entered dismissing the Action on the merits and with prejudice in favor of the Settling Defendant and as against all persons or entities who are members of the Settlement Class herein who have not requested exclusion therefrom; and (iii) whether final judgment should be entered as to the claims against the Settling Defendant. Judge Buchwald certifies, for settlement purposes only, pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, a Settlement Class defined as: "All Persons who purchased or otherwise acquired Aegean Marine Petroleum Network, Inc. (Aegean) securities or sold Aegean put options between Feb. 27, 2014 through Nov. 5, 2018, inclusive (the Settlement Class Period), and were allegedly damaged thereby." Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes of the Deloitte Greece Settlement only, she affirms its determination in the Notice Order that Utah Retirement Systems is appointed as the Class Representative. All Settlement Class Members are bound by this Order and Final Judgment with Prejudice Regarding Deloitte Greece. No Settlement Class Member has filed objections to the Deloitte Greece Settlement. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Judge Buchwald approves the Deloitte Greece Settlement as set forth in the Deloitte Greece Stipulation, and finds that the Deloitte Greece Settlement is, in all respects, fair, reasonable and adequate, and in the best interests of the Settlement Class Members. The Consolidated Class Action Complaint is dismissed on the merits with prejudice as against the Deloitte Greece Released Parties only and without costs except for the payments expressly provided for in the Deloitte Greece Stipulation. Upon the Effective Date of the Deloitte Greece Settlement, Deloitte Greece and each of the other Deloitte Greece Released Parties will be deemed to have released, dismissed and forever discharged all Deloitte Greece Released Parties' Claims against the Lead Plaintiff and their respective attorneys, and any other Settlement Class Member. The Court reserves jurisdiction, without affecting in any way the finality of the Order and Final Judgment with Prejudice Regarding Deloitte Greece, over: (a) implementation and enforcement of the Deloitte Greece Settlement; (b) the allowance, disallowance or adjustment of any Settlement Class Member's claim on equitable grounds and any award or distribution of the Deloitte Greece Settlement Fund; (c) disposition of the Deloitte Greece Settlement Fund; (d) hearing and determining Lead Counsel's application for attorneys' fees, costs, interest and expenses, including fees and costs of experts and/or consultants; (e) enforcing and administering this Order and Final Judgment with Prejudice Regarding Deloitte Greece; (f) enforcing and administering the Deloitte Greece Stipulation, including any releases and bar orders executed in connection therewith; and (g) other matters related or ancillary to the foregoing. Any plan of allocation submitted by Lead Counsel or any order entered regarding any attorneys' fee and reimbursement of costs and expenses application will in no way disturb or affect the Judgment and will be considered separate from the Order and Final Judgment with Prejudice Regarding Deloitte Greece. Deloitte Greece and each of the other Deloitte Greece Released Parties will be deemed to have released, dismissed and forever discharged all Deloitte Greece Released Parties' Claims against the Lead Plaintiff, its counsel in the Action and any other Settlement Class Member. Without further Order of the Court, the parties may agree to reasonable extensions of time to carry out any of the provisions of the Deloitte Greece Stipulation. There is no just reason for delay in the entry of the Order and Final Judgment with Prejudice Regarding Deloitte Greece and immediate entry by the Clerk of the Court is expressly directed. A full-text copy of the Court's Sept. 14, 2022 Order & Final Judgment is available at https://tinyurl.com/498ezud5 from Leagle.com. APPLE INC: Wants to Pause Securities Suit for Interlocutory Appeal ------------------------------------------------------------------ Alison Frankel, writing for Reuters, reports that a fascinating, albeit grammatically hair-splitting, question of attorney-client privilege has reared up in a shareholder class action against Apple Inc. In late 2018, as Apple mulled whether to tell shareholders that its earnings guidance was off by billions of dollars, CEO Tim Cook sent an email to Apple CFO Luca Maestri and general counsel Katherine Adams, asking for their views on a presentation Cook was going to make to the company's board of directors. Maestri and Adams responded with their advice, according to a federal magistrate's report and subsequent filings in the class action. Not long after the email exchanges, Apple issued an extremely rare "letter to investors," advising that Apple's original estimate for revenues in the first quarter of 2019 was way off. The company had announced a projection of between $89 and $93 billion for the quarter. But Cook's Jan. 2, 2019, letter to investors said Apple's new guidance was for revenues of about $84 billion. Cook's missive attributed the shortfall to "economic deceleration, particularly in Greater China." Apple's share price fell from $157.92 to $142.19 after the disclosure. Predictably, shareholders sued, pointing, among other things, to a statement Cook made during a phone call with analysts in November 2018. When Cook was asked about declining prospects in emerging markets, the CEO acknowledged problems in some countries. But he specifically excluded China as a trouble spot. "Our business in China was very strong last quarter," Cook assured analysts. Cook's statement is at the heart of the securities class action under way before U.S. District Judge Yvonne Gonzalez Rogers of Oakland. In November 2020, Rogers ruled that investors, represented by Robbins Geller Rudman & Dowd, could proceed with their claim that Cook's statement about Apple's business in China was fraudulent. Last February, Rogers certified a class of Apple shareholders. The case has sped along. Apple's lawyers at Orrick, Herrington & Sutcliffe moved for summary judgment earlier this month, arguing that no reasonable jury could find Cook's statement to be false or made with fraudulent intent. Shareholders, meanwhile, moved to exclude Apple's experts and to file an amended complaint to include information they obtained in discovery from the company. But now Apple wants to pause the class action for an interlocutory appeal to the 9th U.S. Circuit Court of Appeals. Its rationale: Rogers erred when she upheld a magistrate judge's order requiring Apple to turn over purportedly privileged documents, including -- most notably, based on Apple's brief -- the email Cook sent to his CFO and GC in advance of the board meeting that presumably prompted the company to issue its revised revenue guidance in January 2019. Apple insists its bid for 9th Circuit review is a matter of principle. A year ago, as I've reported, the 9th Circuit ruled in In re Grand Jury that attorney-client privilege does not protect documents whose primary purpose is to seek or provide business advice, even if the documents also anticipate litigation. The 9th Circuit said its test aligned with decisions from the 2nd, 5th and 6th Circuits, although the anonymous company and law firm that sought to shield their communications in the Grand Jury case subsequently told the U.S. Supreme Court, in a petition for review last April, that the 9th Circuit test is "incompatible" with holdings from the 7th and D.C. Circuits. (The justices are scheduled to consider the petition later this month.) The 9th Circuit's Grand Jury decision left open a question about whether privilege shields documents that have both a business and legal purpose if legal advice is a primary purpose of the communication but not necessarily the only primary purpose. The D.C. Circuit held in 2014's In re Kellogg Brown & Root Inc that privilege applies when legal advice is a primary purpose for the document, but the 9th Circuit said in Grand Jury that it did not need to decide whether to adopt that more expansive view of privilege based on the facts of the case. Apple has homed in on this unresolved point -- a question, when you boil it down, about whether privilege applies whenever business advice is "a" primary purpose for communications or only when business considerations are "the" primary purpose. Apple told Rogers that uncertainty about the 9th Circuit test has left companies in a bind. (The U.S. Chamber of Commerce advanced similar arguments to the Supreme Court in an amicus brief calling on the justices to review the 9th Circuit's Grand Jury ruling.) "A CEO should be able to seek privileged legal advice from his general counsel without needing to spell out a precise 'legal concern,' even when the same email additionally requests feedback from other executives," Apple said in an Aug. 5 brief arguing that U.S. Magistrate Joseph Spero should not have ordered the disclosure of Cook's email to Maestri and Adams. Rogers was notably unswayed in her terse Sept. 12 ruling confirming the magistrate's order directing Apple to turn over the Cook email and other documents. The D.C. Circuit's Kellogg test, Rogers wrote, is not the standard in the 9th Circuit, so Spero obviously did not err in applying the narrower Grand Jury standard. Apple told Rogers in its brief requesting certification of an interlocutory appeal that its case is an opportunity for the 9th Circuit to clarify an important and unsettled legal question. It also insisted that the appeal will advance the securities class action (despite the late stage of the litigation) by determining whether shareholders are, as the magistrate ruled, entitled to additional discovery. I'd love to know exactly what's in the 2018 email from Cook to his top advisors, but Apple lead counsel, James Kramer of Orrick, declined to provide a statement on the privilege dispute. Robbins Geller's Shawn Williams also declined. The shareholder firm pointed out in its brief urging Rogers to uphold the magistrate's order that Spero actually reviewed the disputed document -- and he determined that it is not shielded by privilege. As of mid-afternoon on Sept. 14, Rogers -- who ordered Apple on Sept. 12 to turn over the documents specified in the magistrate's order by Sept. 15 -- has not responded to the company's pitch for a 9th Circuit appeal. [GN] APRIO LLP: Court Allows More Time to File Class Cert Bid Response ----------------------------------------------------------------- In the class action lawsuit captioned as Lechter et al v. Aprio, LLP, et al., Case No. 1:20-cv-01325 (N.D. Ga.), the Hon. Judge Amy Totenberg entered an order granting motion for extension of time, through and including October 6, 2022, to file a response to motion to certify class. Aprio is a financial consulting and CPA firm. The suit alleges violation of Racketeer Influenced and Corrupt Organizations (RICO) Act.[CC] ASHLEY FURNITURE: Faces Class Action Lawsuit Over Service Plans --------------------------------------------------------------- ClassAction.org reports that a proposed class action alleges Ashley Furniture Industries has misrepresented the benefits and terms of its service plans and unfairly denied customers' claims without proper investigation. The 15-page lawsuit was filed by a Florida consumer who says she was persuaded to purchase a service plan for a couch she bought from Ashley after a representative indicated that "any sort of damage" would be covered. When the base of the plaintiff's sofa "collapsed in one spot" after two years of "normal use," however, the woman was told that "excessive damage, misuse, neglect, mishandling, and abuse" were not covered under her service plan, the suit says. According to the lawsuit, it is Ashley's practice to misrepresent the terms of its service plan "for the purpose of denying [] claims," and to base those denials on allegedly "excessive" damage, misuse and neglect, without adequately investigating consumers' claims. The filing alleges Ashley representatives receive incentives for each customer who signs up for a service plan, and are thus incentivized to "over-promise" the benefits of a plan and "not inform customers of its numerous limitations." The case claims that thousands of consumers have been issued "the same boilerplate denials, untethered to their specific facts," and argues that Ashely has essentially been selling unlawful insurance policies prohibited by Florida law. When the plaintiff purchased her sofa in October 2019 from a Tallahassee, Florida Ashley's Furniture store, she was led to believe that buying a service contract along with the couch "was a prudent investment for her costly purchase." Though the plaintiff was unable to view the terms of the Ashley Furniture service plan prior to her purchase, she later received a copy of the service agreement, the terms of which stated, in part, that "[a]ccidental breakage of frames, springs, and sleeper, reclining, inclining, heating, and vibrating mechanisms will be covered after the manufacturer's warranty has expired," the suit relays. The case says the plaintiff submitted a claim under her service plan in October 2021 after the base of her sofa collapsed in two places. Per the complaint, the plaintiff's claim was denied, without an opportunity for appeal, based on the defendant's finding that "excessive damage, misuse, neglect, mishandling, and abuse" were not covered under the terms of the woman's plan. The lawsuit argues that Ashley had "no basis" to find that the damage fell under this exception for coverage given the plaintiff had reported that the breakage was caused by "normal use" during "normal sitting" on the couch. Ashely uses this exception as the basis for denying consumers' claims "with such frequency" that it is likely the defendant has a practice of failing to adequately investigate claims, the case contests. Moreover, the lawsuit argues that Ashley's service contracts are essentially unlawful insurance policies that the company sells without adequately defining their terms and outside of the "extensive regulations" of the insurance industry. The lawsuit looks to cover anyone in Florida, Alabama, Montana, Alaska, Texas, Arizona, New Mexico, Mississippi, Utah, Nebraska, South Carolina, Tennessee and Virginia who purchased a service plan from Ashley Furniture during the applicable statute of limitations period. [GN] ASSESSOR OF ROCKVILLE CENTRE: Andrade Files Suit in N.Y. Sup. Ct. ----------------------------------------------------------------- A class action lawsuit has been filed against The Assessor of the Village of Rockville Centre, et al. The case is styled as Nicole Andrade, all other similarly situated Petitioners on the annexed SCHEDULE A v. The Assessor of the Village of Rockville Centre, The Board of Assessment Review of the Village of Rockville Centre, Respondents, Case No. 612393/2022 (N.Y. Sup. Ct., Nassau Cty., Sept. 19, 2022). The case type is stated as "SP-CPLR Article 78 (Body or Officer)." Rockville Centre -- https://www.rvcny.gov/ -- commonly abbreviated as RVC, is an incorporated village located in the Town of Hempstead in Nassau County, on the South Shore of Long Island, in New York.[BN] The Petitioner is represented by: MAIDENBAUM & STERNBERG, LLP 132 Spruce St Cedarhurst, NY 11516-1915 ASSESSOR OF VALLEY STREAM: Murphy Files Suit in N.Y. Sup. Ct. ------------------------------------------------------------- A class action lawsuit has been filed against The Assessor of the Village of Valley Stream, et al. The case is styled as Johanna Murphy, all other similarly situated Petitioners on the annexed SCHEDULE A v. The Assessor of the Village of Valley Stream, The Board of Assessment Review of the Village of Valley Stream, Respondents, Case No. 612398/2022 (N.Y. Sup. Ct., Nassau Cty., Sept. 19, 2022). The case type is stated as "SP-CPLR Article 78 (Body or Officer)." Valley Stream -- https://www.vsvny.org/ -- is a village in Nassau County, on Long Island, in New York.[BN] The Petitioner is represented by: MAIDENBAUM & STERNBERG, LLP 132 Spruce St Cedarhurst, NY 11516-1915 ASTRAZENECA PLC: Judge Tosses Class Suit Over Failed Vaccine Trials ------------------------------------------------------------------- Rob Harkavy, writing for ICLG.com, reports that AstraZeneca's US shareholders have been barred from pursuing a claim against AstraZeneca over share-price dip. AstraZeneca, which became the first drug company to receive a licence in the United Kingdom for an anti-Covid-19 vaccination, has staved off an attempt by the company's shareholders to seek recompense for a fall in the company's share price after its vaccine failed to win approval for use in the United States. A proposed class action from lead claimants, the Detroit-based Wayne County Employees' Retirement System -- a pension fund – and Nuggehalli Nandkumar -- an individual -- had claimed that the Cambridge-headquartered Anglo-Swedish pharmaceutical giant concealed problems in developing its Covid-19 vaccine making it unlikely the treatment would win regulatory approval in the US. The vaccine was developed in consort with the University of Oxford and was sold under the brand names Vaxzevria and Covishield. [GN] AUSTRALIA: Faces Suit Over National Disability Insurance Scheme --------------------------------------------------------------- Dan Jervis-Bardy at dailyadvertiser.com.au reports that everything changed for Keith Johns on June 6, 2019. Mr. Johns was cycling around Lake Burley Griffin, as he had done many times before, when he misjudged the sharp left hand turn on the descent toward the Scrivener Dam bridge. He crashed his bike and broke his neck. Fit, healthy and a month short of his 67th birthday, he would never walk again. There is never a good time to suffer an accident that renders you seriously and permanently disabled. But for Mr. Johns, the timing was particularly cruel. 'I'm forced out of society' His age meant he was too old to join the National Disability Insurance Scheme, which is only open to people aged under 65. Participants who joined the scheme before turning 65 can continue to access it, but people in Mr. John's situation are pushed into an aged care system which typically offers less funding and appropriate support. Had Mr Johns crashed his bike three years earlier and became an NDIS participant, the taxpayer-funded scheme would have most likely paid for his wheelchair, modifications to a home and therapy. But without that help, Mr. Johns was forced to sell his second-floor apartment and move into aged care well before his time. The retired IT consultant used his own savings to buy an electric and manual wheelchair, and has to fork out $180 per hour for his once-a-week gym class. "I think it's pretty unfair that they should impose an arbitrary cap on getting benefits - the system should be available to all," he told ACM. "I find it jarring that I have to pay for everything out of my own pocket. "But it's not only that, it's the fact that I'm forced out of society [by having to live in aged care at his age]. I don't think I should be, I think I could still play an active part in society - if only I was allowed to." Disability advocates have been campaigning to end "age discrimination" in the NDIS by removing the age cut-off, which has been part of the scheme's design since its launch in 2013. The push gained some traction during the federal election, with the Greens and independents, including ACT senator David Pocock, throwing their support behind the campaign. Now the campaign has taken a different turn. 'It could rival Robodebt' Mr. Johns is among the dozens of seriously disabled Australians who have expressed interest in joining a new class action against the Commonwealth, which would seek to secure compensation for people who have so far been excluded from the NDIS and ultimately scrap the age barrier. Rick Mitry, whose firm Mitry Lawyers is leading the class action, argues the case could rival the Robodebt class action - which resulted in a $1.8 billion settlement between the Commonwealth and victims of the unlawful debt-raising program. The compensation claim would be based on a calculation that the average NDIS participant receives $111,000 a year, about $55,000 more than someone with a level-four home care package. Mr. Mitry anticipates thousands of disabled seniors could sign up to join the lawsuit, after more than 200 people contacted him in the first few days after news of the class action broke. The firm still needs to find a litigation funder to back the case, but has already tapped high-profile barrister Bret Walker to lead the fight. The case will be fought on constitutional grounds. Under the section 51, the federal government has a duty to pass legislation which is consistent with treaties. The class action will argue that the NDIS Act 2013, which enshrined the age barrier in law, is in breach of the UN convention which prohibits discrimination on all forms of disability. It will also be argued that the staggered rollout of the NDIS across the country breached the Commonwealth's constitutional requirement not to discriminate based on state-based residency. "A lot of comment has been seen online, but it doesn't seem to go anywhere," Mr. Mitry told ACM. "To get the government's attention there is no other way than to start a class action - unless someone else has got better ideas." The age cut-off had bipartisan support when the NDIS was launched under the Gillard government. Neither major party has changed their position since, and are unlikely to do so because of the substantial financial burden it would add to a scheme already forecast to cost $34 billion this financial year. Opposition NDIS spokesman Michael Sukkar said the age cut-off was a "key foundation feature" of the scheme. "Making such a significant change to the NDIS by raising the cut-off age for people to access the NDIS would be a monumental change to the scheme," he said. The Greens' disability spokesman Jordon Steele-John said people should be able to access the NDIS regardless of their age, arguing the aged care system was failing senior Australians with a disability. Senator Steele-John said the issue would be examined in the parliamentary inquiry, which has been launched in the National Disability Insurance Agency's culture and capability. "We need to amend the legislation so that the age barrier is no longer present," he said. "We've got a great opportunity, once we've heard the evidence in a consolidate form [during the inquiry] .. to make that recommendation." ACM contacted NDIS Minister Bill Shorten for comment, but did not receive a response. [GN] AUTOMATED PET CARE: Topalli Suit Removed to M.D. Florida -------------------------------------------------------- The case styled as Leutrim Topalli, individually and on behalf of all others similarly situated v. Automated Pet Care Products, LLC, Case No. 22-CA-006413 was removed from the Orange County Circuit Court, to the U.S. District Court for Middle District of Florida on Sept. 16, 2022. The District Court Clerk assigned Case No. 6:22-cv-01701-RBD-DAB to the proceeding. The nature of suit of Other Contract. Automated Pet Care Products doing business as Whisker, the creator of Litter-Robot -- https://www.litter-robot.com/ -- invents, manufactures, and markets highly functional, solution-oriented pet care appliances and refined pet accessories that provide better choices for pet parents.[BN] The Plaintiff is represented by: Benjamin W. Raslavich, Esq. KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Phone: (813) 422-7782 Fax: (813) 422-7783 Email: ben@thekrfirm.com The Defendant is represented by: Brad F. Barrios, Esq. TURKEL CUVA BARRIOS, P.A. 100 N. Tampa Street, Suite 1900 Tampa, FL 33602 Phone: (813) 834-9191 Email: bbarrios@tcb-law.com BARCLAYS PLC: Faces Class Suit Over $17.6-B Debt Sale Blunder ------------------------------------------------------------- wionews.com reports that Barclays Plc (BARC.L) was sued in a proposed US class action in which shareholders claimed they were defrauded in connection with the British bank's sale of $17.6 billion more debt than regulators had allowed. A complaint filed in the US District Court in Manhattan by two Florida pension plans seeks to hold Barclays responsible for declines in the prices of its American depositary receipts (ADRs) as costs mounted over the blunder. The complaint said Barclays made "materially false and misleading" assurances in its annual reports that its internal controls over financial reporting were effective. It also said the bank overstated profit, and understated operating and "litigation and conduct" expenses, by failing to disclose the over issuance in its 2021 earnings releases. "The failure to have controls in place to account for the number of securities issued against the number of securities registered is such an elementary failure of internal control that is so obvious as to be deliberately reckless," the complaint said. Barclays declined to comment. Chief Executive CS Venkatakrishnan and his predecessor Jes Staley are among the other defendants. The bank revealed in March that it had sold $15.2 billion more structured and exchange-traded notes than the $20.8 billion US regulators had authorized. In July, the bank increased the oversold amount by $2.4 billion. Barclays offered to buy back the excess securities, and on July 28 said it set aside about 1.59 billion pounds (now $1.73 billion) related to the over issuance. The bank said on September 15 that investors had submitted claims covering $7 billion of the securities. The lawsuit by the City of North Miami Beach Police Officers' and Firefighters' Retirement Plan and City of North Miami Beach General Employees' Retirement Plan seeks damages for Barclays ADR holders from February 18, 2021 to March 25, 2022. The case is City of North Miami Beach Police Officers' and Firefighters' Retirement Plan et al v. Barclays Plc et al, US District Court, Southern District of New York, No. 22-08172. [GN] BAYER HEALTHCARE: Hitt Sues Over Defective and Toxic Collars ------------------------------------------------------------ Heather Hitt and Alison Dirk individually and on behalf of all others similarly situated v. Bayer Healthcare LLC; Bayer Corporation; and, Elanco Animal Health, Inc., Case No. 4:22-cv-01657 (N.D. Ohio, Sept. 16, 2022), is brought against the Defendant for the Defendant's failure to inform the Plaintiffs about the defect inherent in the Seresto flea and tick collars even though the Defendants knew about the defect at the time of purchase. Seresto flea and tick collars--some of the top-selling flea and tick preventative collars in the country--have been associated with tens of thousands of pet injuries and approximately 1,700 pet deaths. The Defendant hid that information from, and patently misled, consumers. Indeed, even after reports of Seresto's serious side effects became public, Defendants have downplayed the reports and continued to represent that Seresto is safe for pets to use when it is not. The danger of Seresto flea and tick collars is so severe that it instigated a Congressional investigation by the House Committee on Oversight and Reform's Subcomittee on Economic and Consumer Policy. After an in-depth, 16-month investigation that involved review of internal documents of the Defendants, which were not been made available to the public, the House Committee on Oversight and Reform's Subcomittee on Economic and Consumer Policy issued a report in June of 2022 ("Seresto Report") recommending a recall of the Seresto flea and tick collar due to the dangers it posed to pets and humans. At no point have Defendants disclosed this information to United States consumers. To the contrary, they have maintained and represented that Seresto collars are safe for pets to use. Despite Defendants' claims, Seresto collars have resulted in millions of dollars in damages for pet owners—both in the form of collars that they overpaid for or would have never purchased had consumers known of Seresto's dangers, and also in veterinarian and other medical expenses incurred by pet owners with pets injured by the Seresto collar and its pesticides. The Defendants, of course, have not warned consumers because Seresto pet collars accounted for more than $300 million in revenue in 2019 alone. Seresto pet collars are an enormous business segment, and consequently, Defendants have refused to make the product safer or warn consumers about the potential risks. While Defendants sell Seresto collars as "veterinary medicine," that is a misnomer. The over-the-counter collars do not constitute "medicine" but rather, are toxic pesticides that can harm—and even kill—pets, says the complaint. The Plaintiffs purchased Seresto Collars and used them on their dogs. Bayer Healthcare LLC is a Delaware limited liability company headquartered in Whippany, New Jersey and initially developed the Seresto pet collar and manufactured, advertised, labeled, and sold Seresto from 2013 until August 2020.[BN] The Plaintiff is represented by: Michael R. Reese, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Phone: (212) 64-0500 Fax: (212) 253-4272 - and - Michael Williams, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Phone: (816) 945-7110 Fax: (816) 945-7118 Email: mwilliams@williamsdirks.com - and - Rachel Soffin, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 3833 Central Ave. St. Petersburg, FL 33713 Phone: (865) 247-0080 Fax: (865) 522-0049 Email: rsoffin@milberg.com BAYER HEALTHCARE: Mohamed Sues Over Defect Inherent in Collars -------------------------------------------------------------- Abraham Mohamed, individually and on behalf of all others similarly situated v. Bayer Healthcare LLC; Bayer Corporation; and, Elanco Animal Health, Inc., Case No. 2:22-cv-01628-MCE-CKD (C.D. Cal., Sept. 16, 2022), is brought against the Defendant for the Defendant's failure to inform the Plaintiffs about the defect inherent in the Seresto flea and tick collars even though the Defendants knew about the defect at the time of purchase. Seresto flea and tick collars--some of the top-selling flea and tick preventative collars in the country--have been associated with tens of thousands of pet injuries and approximately 1,700 pet deaths. The Defendant hid that information from, and patently misled, consumers. Indeed, even after reports of Seresto's serious side effects became public, Defendants have downplayed the reports and continued to represent that Seresto is safe for pets to use when it is not. The danger of Seresto flea and tick collars is so severe that it instigated a Congressional investigation by the House Committee on Oversight and Reform's Subcomittee on Economic and Consumer Policy. After an in-depth, 16-month investigation that involved review of internal documents of the Defendants, which were not been made available to the public, the House Committee on Oversight and Reform's Subcomittee on Economic and Consumer Policy issued a report in June of 2022 ("Seresto Report") recommending a recall of the Seresto flea and tick collar due to the dangers it posed to pets and humans. At no point have Defendants disclosed this information to United States consumers. To the contrary, they have maintained and represented that Seresto collars are safe for pets to use. Despite Defendants' claims, Seresto collars have resulted in millions of dollars in damages for pet owners—both in the form of collars that they overpaid for or would have never purchased had consumers known of Seresto's dangers, and also in veterinarian and other medical expenses incurred by pet owners with pets injured by the Seresto collar and its pesticides. The Defendants, of course, have not warned consumers because Seresto pet collars accounted for more than $300 million in revenue in 2019 alone. Seresto pet collars are an enormous business segment, and consequently, Defendants have refused to make the product safer or warn consumers about the potential risks. While Defendants sell Seresto collars as "veterinary medicine," that is a misnomer. The over-the-counter collars do not constitute "medicine" but rather, are toxic pesticides that can harm—and even kill—pets, says the complaint. The Plaintiff purchased a Seresto Collar and used it on his cat, Sarabi. Bayer Healthcare LLC is a Delaware limited liability company headquartered in Whippany, New Jersey and initially developed the Seresto pet collar and manufactured, advertised, labeled, and sold Seresto from 2013 until August 2020.[BN] The Plaintiff is represented by: Michael R. Reese, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Phone: (212) 64-0500 Fax: (212) 253-4272 - and - Michael Williams, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Phone: (816) 945-7110 Fax: (816) 945-7118 Email: mwilliams@williamsdirks.com - and - Rachel Soffin, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 3833 Central Ave. St. Petersburg, FL 33713 Phone: (865) 247-0080 Fax: (865) 522-0049 Email: rsoffin@milberg.com BEST BUY STORES: Alvelo FCRA Suit Removed to S.D. New York ---------------------------------------------------------- The case styled as Kasley Alvelo, on behalf of herself and on behalf of all others similarly situated v. Best Buy Stores, L.P., Case No. 652903/2022 was removed from the Supreme Court, County of New York, to the U.S. District Court for Southern District of New York on Sept. 19, 2022. The District Court Clerk assigned Case No. 1:22-cv-07997 to the proceeding. The nature of suit is stated as Other Civil Rights for the Class Action Fairness Act. Best Buy -- https://www.bestbuy.com/ -- is an American multinational consumer electronics retailer headquartered in Richfield, Minnesota.[BN] The Plaintiff appears pro se. The Defendant is represented by: Daniel Sergio Gomez-Sanchez, Esq. LITTLER MENDELSON, P.C. 290 Broadhollow Road Suite 305 Melville, NY 11747 Phone: (631) 247-4700 Fax: (631) 824-9249 Email: dsgomez@littler.com BIMBO BAKERIES: Martinez Sues Over Failure to Provide Wages ----------------------------------------------------------- Crisanto Martinez, individually and on behalf of all others similarly situated v. BIMBO BAKERIES USA, INC., a Delaware Corporation; and DOES 1 through 100, inclusive, Case No. 2:22-cv-01618-DAD-JDP (C.D. Cal., Sept. 15, 2022), is brought under, inter alia, the Industrial Welfare Commission Wage Orders and applicable provisions of the California Code of Regulations, Business & Professions Code, seeking restitution of all benefits the Defendants have received from their employees due to their unlawful business practices, including but not limited to, failure to provide wages and reimbursement for work related expenses, and failure to maintain proper records of wages and reimbursement for work related expenses. It would take Plaintiff at least an hour to commute from his home office in Sacramento/Natomas to the Fairfield sales center. A round trip was approximately 90 miles. Under the bargaining agreement and applicable California laws, Class Members had a right to receive reimbursement for mileage incurred travelling between Defendants' various warehouses and truck centers. Pursuant to the bargaining agreement and California laws, the 90-mile round-trip Plaintiff made for his travel between Sacramento/Natomas and the Fairfield sales center was reimbursable. However, the Plaintiff and other Class Members were routinely denied reimbursement for mileage expenses they incurred using their personal vehicles travelling between the Defendants' warehouses and other facilities. The Defendants routinely took more than thirty days to reimburse the Plaintiff's mileage. The Plaintiff is informed and believes that the Defendants routinely failed to properly reimburse other Class Members for their mileage and took more than thirty days to reimburse other Class Members for the limited mileage they did reimburse, says the complaint. The Plaintiff was employed by Defendants as an employee in the position of Relief Route Sales Representative performing pick-up and delivery services using a commercially licensed truck. Bimbo Bakeries USA, Inc. is a Delaware Corporation manufacturing breads, cakes, cookies, and other baked goods in the State of California.[BN] The Plaintiff is represented by: Daniel Feder, Esq. LAW OFFICES OF DANIEL FEDER 235 Montgomery Street Suite 1019 San Francisco, CA 94104 Phone: (415) 391-9476 Facsimile: (415) 391-9432 Email: daniel@dfederlaw.com - and - Eric Lechtzin, Esq. EDELSON LECHTZIN LLP 3 Terry Drive, Suite 205 Newtown, PA 18940 Phone: (215) 867-2399 Facsimile: (267) 685-0676 Email: elechtzin@edelson-law.com BP EXPLORATION: Court Dismisses Graham B3 Suit With Prejudice ------------------------------------------------------------- In the case, SARAH GRAHAM v. BP EXPLORATION & PRODUCTION, INC. ET AL., SECTION H, Civil Action No. 19-11673 (E.D. La.), Judge Jane Triche of the Milazzo of the U.S. District Court for the Eastern District of Louisiana grants: -- the Motion in Limine to Exclude the General Causation Opinions of Plaintiff's Expert, Dr. Jerald Cook; and -- the Motion for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation, both filed by Defendants BP Exploration & Production, Inc.; BP America Production Co.; BP p.l.c.; Transocean Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and Halliburton Energy Services, Inc. The case is one among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. This bundle comprises "claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant)." These cases were originally part of a multidistrict litigation ("MDL") pending in the Eastern District of Louisiana before Judge Barbier. During this MDL, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but the B3 plaintiffs either opted out of this agreement or were excluded from its class definition. Subsequently, Judge Barbier severed the B3 cases from the MDL to be reallocated among the judges of the Court. This case was reassigned to Section H. Ms. Graham alleges continuous exposure to oil and dispersants during her time as a beach cleanup worker. She claims to suffer from a host of medical conditions because of the exposure, including "nose bleeds, coughing blood, seizures, IBS-D, colon polyps, ulcers, memory loss, vertigo, tremors, fainting spells, numbness in the hands and feet." She asserts claims under the general maritime law of negligence, negligence per se, and gross negligence with respect to the spill and its cleanup. Now before the Court are the Defendants' Motion in Limine to Exclude the General Causation Opinions Testimony of Plaintiff's Expert and their Motion for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation. In the Motion in Limine, the Defendants argue that the Plaintiff's expert on medical causation, Dr. Cook, fails to satisfy the Fifth Circuit requirements for an admissible general causation opinion in toxic tort cases and should therefore be excluded as unreliable. In the Motion for Summary Judgment, they argue that assuming their Motion in Limine is granted, the Plaintiff lacks expert testimony on general causation and therefore fails to present a genuine issue of material fact as to whether his injuries were caused by exposure to oil and dispersants. The Plaintiff opposes. Judge Milazzo explains that B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response. The plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury. In the case, Dr. Cook is listed as the Plaintiff's only expert witness on causation. On this topic, he produced a report dated March 14, 2022 and entitled "Health Effects Among Deepwater Horizon Oil Spill Response and Cleanup Workers: A Cause and Effect Analysis." This report is not unique to this case; another judge of this Court has described it as "an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs. Five other sections of the Eastern District of Louisiana have excluded Dr. Cook based on this same report before the Court. After carefully and thoroughly reviewing those decisions, and for the same reasons articulated by Judges Ashe, Vance, Barbier, Morgan, and Zainey, Judge Milazzo grants the Defendants' Motion in Limine. Accordingly, the Plaintiff cannot prove general causation, and she also grants the Defendants' Motion for Summary Judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's Sept. 14, 2022 Order & Reasons is available at https://tinyurl.com/2vav7awm from Leagle.com. BUMBLE INC: Colon Sues Over Holding of Voting Power --------------------------------------------------- Kristyn Colon, on behalf of herself and all other similarly situated stockholders of BUMBLE INC. v. BUMBLE INC., WHITNEY WOLFE HERD, and BLACKSTONE INC., Case No. 2022-0824- (Del. Chancery Ct., Sept. 16, 2022), is brought against Bumble as a result of Bumble's statutory violations of to hold Bumble's voting power. The founders of tech startups have increasingly deployed dual-class stock capital structures to separate voting control from economic interest. Although public-company investors rue the use of supervoting stock to disproportionately empower founders, both Delaware and federal securities law permit them in general. Instead, the law typically regulates specific transactions through heightened scrutiny when actual conflicts emerge. This Action arises because certain tech company founders have decided that simply holding supervoting classes of stock is insufficient to ensure their control. So, armed with advisors who compete on the basis of how aggressively they can entrench their clients, these founders are pushing the lines of Delaware law beyond its breaking point. This Action challenges certain provisions in Bumble's Amended and Restated Certificate of Incorporation (the "Charter"), which creates both Class A shares and Class B shares. Unlike a "normal" dual-class structure, the Bumble Charter allocates voting power based on the identity of the person casting a vote, instead of linking voting power to the security at issue. Specifically, the Charter purports to give one vote per share to certain holders of the Class A shares, while giving the "Principal Stockholders"--certain entities controlled by Bumble's founder, Herd, and the Company's pre-IPO private equity sponsor, Blackstone--ten votes per share for otherwise identical Class A shares. The Charter similarly purports to give Herd and Blackstone a 10x multiplier in voting power for their Class B shares, while giving holders of otherwise identical Class B shares 1/10th the voting power for their shares. This form of identity-based voting power is unlawful. Section 212(a) of the General Corporation Law of Delaware (the "DGCL") and related principles of Delaware law make clear that voting rights inhere in the stock itself (as defined by the applicable charter or the certificate of designations creating that class of stock) and emanate from stock ownership, not the identity of the stockholder. Individuals may exercise only the voting power associated with specific shares of stock. The law does not contemplate allocating voting power personally to individuals based on their names, untethered to their stock ownership. Nor can voting power be allocated disparately among people holding the same class of stock. Bumble's Charter stands these principles on their head. Shares held by Herd or Blackstone are purportedly given ten votes per share, while otherwise identical shares in the hands of anyone not named a "Principal Stockholder" enjoy only one vote per share. Such discrimination is impermissible and inconsistent with the very notion of linking corporate voting power to the terms of a security. As a result of Bumble's statutory violations, the Principal Stockholders purport to hold over 90% of Bumble's voting power. A judicial ruling invalidating the identity-based supervoting nature of the Class A and B shares would leave the Principal Stockholders with a bare majority. Accordingly, Plaintiff seeks a declaration invalidating the enhanced voting provisions of the Charter as being unlawful and invalid under the DGCL, says the complaint. The Plaintiff is a beneficial owner of Bumble Class A common stock and has continuously held stock. Bumble is a Delaware corporation, headquartered in Austin, Texas, that operates a popular online-dating application.[BN] The Plaintiff is represented by: Mark Lebovitch, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Phone: (212) 554-1400 - and - Brian Schall, Esq. THE SCHALL LAW FIRM 2049 Century Park East, Suite 2460 Los Angeles, CA 90067 Phone: (310) 301-3335 - and - Peter B. Andrews, Esq. Craig J. Springer, Esq. David M. Sborz, Esq. Andrew J. Peach, Esq. Christopher P. Quinn, Esq. Jackson E. Warren, Esq. ANDREWS & SPRINGER LLC 4001 Kennett Pike, Suite 250 Wilmington, DE 19807 Phone: (302) 504-4957 - and - Gregory V. Varallo, Esq. Daniel E. Meyer, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 500 Delaware Avenue, Suite 901 Wilmington, DE 19801 Phone: (302) 364-3601 - and - Thomas Curry, Esq. Tayler D. Bolton, Esq. SAXENA WHITE P.A. 1000 N. West Street, Suite 1200 Wilmington, DE 19801 Phone: (302) 485-0483 CANADA: Federal Court Certifies RCMP Class Action Lawsuit --------------------------------------------------------- The Federal Court of Canada has certified Greenwood v His Majesty the King as a national class proceeding on September 20, 2022, following the Supreme Court of Canada's dismissal of Canada's leave to appeal application. The class action seeks damages on behalf of all current or former RCMP Regular and Civilian Members, Special Constables and Reservists who worked for the RCMP between January 1, 1995 and the date of an applicable collective agreement. The nature of the claim made on behalf of the Class is systemic negligence. In particular, Geoffrey Greenwood and Todd Gray (the "Representative Plaintiffs"), allege that there was a culture of systemic bullying, intimidation and harassment at the RCMP that affected all who worked for the RCMP, and that in allowing this culture to manifest and permeate the organization from its highest levels, the RCMP failed to fulfil its duties to provide the Class Members with a work environment free of bullying, intimidation and harassment, generally, as well as based on any grounds (including but not limited to sex, gender, race, ethnicity or religion). Court-appointed Class Counsel are Kim Spencer McPhee Barristers P.C. The claims have not yet been proven in court and the defendant, Canada on behalf of the RCMP, has admitted no liability. Notice of certification is currently being disseminated to class members through a court approved notice program that includes direct mailing and emailing, posting in RCMP detachments and on the RCMP's internal and external websites, and through external publications and social media. A copy of the Notice of Certification and Opt-out Form are available at https://www.greenwoodrcmpclassaction.ca. Details of the Greenwood class action can be found at https://www.greenwoodrcmpclassaction.ca and on Class Counsel's website (http://www.complexlaw.ca/index.html#FL-RCMP_General_Harrassment). [GN] CENTER FOR SCIENCE: Henderson Sues Over Unlawful Disclosure of Data ------------------------------------------------------------------- Duane Henderson, individually and on behalf of all others similarly situated v. CENTER FOR SCIENCE IN THE PUBLIC INTEREST, Case No. 1:22-cv-00856-JMB-SJB (W.D. Mich., Sept. 16, 2022), is brought against the Defendant for its intentional and unlawful disclosure of its customers' Private Reading Information in violation of Michigan's Preservation of Personal Privacy Act. To supplement its revenues, CSPI rents, exchanges, or otherwise discloses all of its customers' information--including their full names, titles of publications subscribed to, and home addresses (collectively "Private Reading Information"), as well as myriad other categories of individualized data and demographic information such as gender--to data aggregators, data appenders, data cooperatives (including Wiland, Inc.), and other third parties without the written consent of its customers. CSPI continuously engaged in these same practices (disclosing its entire database of its customers' Personal Reading Information to third parties, at least as frequently as once a month) since at least as far back as 2015 through the present, including for the entire pre-July 31, 2016 time period. The rented, exchanged, and/or otherwise disclosed detailed information about the Plaintiff's Nutrition Action healthletter subscription to data aggregators, data appenders, data cooperatives (including Wiland, Inc.), and list brokers, among others, which in turn disclosed his information to aggressive advertisers, political organizations, and non-profit companies. As a result, the Plaintiff has received a barrage of unwanted junk mail. By renting, exchanging, and/or otherwise disclosing Plaintiff's Private Reading Information during the relevant pre-July 31, 2016 time period, CSPI violated the PPPA, says the complaint. The Plaintiff was a subscriber to Nutrition Action healthletter, including prior to July 31, 2016. Center for Science in the Public Interest is the publisher of various healthletters and other publications, including Nutrition Action.[BN] The Plaintiff is represented by: Sharon S. Almonrode, Esq. E. Powell Miller, Esq. THE MILLER LAW FIRM PC 950 W University Dr., Ste. 300 Rochester, MI 48307 Phone: (248) 841-2200 Email: ssa@millerlawpc.com epm@millerlawpc.com - and - Joseph I. Marchese, Esq. Philip L. Fraietta, Esq. BURSOR & FISHER, P.A 888 Seventh Avenue New York, NY 10019 Phone: 646.837.7150 Fax: 212.989.9163 Email: jmarchese@bursor.com pfraietta@bursor.com - and - Frank S. Hedin, Esq. Arun G. Ravindran, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 1140 Miami, FL 33131 Phone: 305.357.2107 Fax: 305.200.8801 Email: fhedin@hedinhall.com aravindran@hedinhall.com CO-DIAGNOSTICS INC: Lee Sues Over Decline in Stock Market Value --------------------------------------------------------------- Drew Lee, Individually and on Behalf of All Others Similarly Situated v. CO-DIAGNOSTICS, INC., DWIGHT H. EGAN, and BRIAN L. BROWN, Case No. 1:22-cv-07988 (S.D.N.Y., Sept. 19, 2022), is brought under the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder by the SEC, brought by Plaintiff on behalf of a class of all persons and entities who purchased the publicly traded securities of Co-Dx during the period May 12, 2022 through the close of the market on August 11, 2022, inclusive (the "Class Period") as a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common stock. Co-Dx purports to develop, manufacture, and sell reagents used for diagnostic tests that function via the detection and/or analysis of nucleic acid molecules (DNA or RNA), including robust and innovative molecular tools for detection of infectious diseases, liquid biopsy for cancer screening, and agricultural applications. On April 6, 2020, Co-Dx announced that it had received an Emergency Use Authorization for its Logix Smart™ COVID-19 detection test from the Food and Drug Administration, allowing it to commence sales of the test to laboratories certified by the Center for Medicare and Medicaid Services under the Clinical Laboratories Improvements Act ("CLIA") to accept human samples for diagnostics testing throughout the U.S. Co-Dx has sold its Logix Smart™ COVID-19 test to such CLIA labs since that time. Co-Dx services over 500 centralized lab customers, including about 200 U.S. CLIA labs, 130 foreign labs, and approximately 200 labs in India certified by the National Accreditation Board for Testing and Calibration Laboratories. During the Class Period, the Defendants repeatedly touted the Logix Smart™ COVID-19 Test, reassuring investors about the demand for the product. At the same time, Defendants failed to disclose that: (1) demand for the Logix Smart™ COVID19 Test had plummeted throughout the quarter ended June 30, 2022, and (2) as a result, Defendants' positive statements about the demand for the Logix Smart™ COVID-19 Test lacked a reasonable basis. On August 11, 2022, Co-Dx shocked investors when, after the market closed, the Company issued a press release and filed a report with the SEC on Form 8-K that disclosed its financial results for the quarter ended June 30, 2022, in which the Company disclosed revenue of $5.0 million for the quarter ended June 30, 2022, down from $27.4 million during the prior year period, a decline of almost 82%. The Company primarily attributed the decrease to lower demand of the Logix Smart™ COVID-19 Test. On this news, Co-Dx's common stock price declined $1.98 per share, or 30.65%, from a closing price of $6.46 per share on August 11, 2022, to close at $4.48 per share on August 12, 2022. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common stock, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff purchased Co-Dx's publicly traded securities during the Class Period. Co-Dx purports to develop, manufacture, and sell reagents used for diagnostic tests that function via the detection and/or analysis of nucleic acid molecules (DNA or RNA).[BN] The Plaintiff is represented by: J. Alexander Hood II, Esq. Jeremy A. Lieberman, Esq. James M. LoPiano, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Phone: (212) 661-1100 Facsimile: (212) 661-8665 Email: ahood@pomlaw.com jalieberman@pomlaw.com jlopiano@pomlaw.com COLLECTOR STORE: Dicks Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against The Collector Store LLC. The case is styled as Valerie Dicks, on behalf of herself and all others similarly situated v. The Collector Store LLC, Case No. 1:22-cv-07919 (S.D.N.Y., Sept. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Collector Store -- https://collectorstore.com/ -- is a game store in Saint Peters, Missouri with a huge selection of Pokemon, Yugioh, Magic the Gathering, sports cards, and more, we've been your one-stop game shop since 2001.[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 COMBI USA INC: Velazquez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Combi USA, Inc. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Combi USA, Inc., Case No. 1:22-cv-07944 (S.D.N.Y., Sept. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Combi USA, Inc. -- https://www.combiusa.com/-- manufactures juvenile products. It offers strollers, car seats, walkers, travel systems, bouncers, feeding products, accessories and play yards.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com COMCAST CORP: Golden Sues Over Unlawful Disclosure of Personal Data ------------------------------------------------------------------- Sherhonda Golden, individually and on behalf of all others similarly situated v. COMCAST CORP., d/b/a TODAY.COM, Case No. 4:22-cv-00975-SEP (S.D.N.Y. Sept. 16, 2022), is brought against the Defendant for violations of the federal Video Privacy Protection Act arising from the Defendant's practice of knowingly disclosing to a third party, Meta Platforms, Inc., 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"). This is a consumer digital privacy class action complaint against Comcast Corp., as the owner of Today.com, for violating the VPPA by disclosing its digital subscribers' identities and Video Media to Facebook without the proper consent. The VPPA prohibits "video tape service providers," such as Today.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 Today.com allowing it to collect users' data. More specifically, it tracks when digital subscribers enter Today.com or Today.com's accompanying App and view Video Media. Today.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 Today.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. Because Today.com digital subscribers are not informed about this dissemination of their Personal Viewing Information--indeed, it is automatic and invisible--they cannot exercise reasonable judgment to defend themselves against the highly personal ways Today.com has used and continues to use data it has about them to make money for itself. The Defendant chose to disregard Plaintiff's and hundreds of thousands of other Today.com digital subscribers' statutorily protected privacy rights by releasing their sensitive data to Facebook. Accordingly, 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 Today.com in 2022 which continues to this day. Comcast Corp. is the owner of NBCUniversal Media, LLC, and thereby the owner and operator of Today.com.[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 - 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 CONDOR OUTDOOR: Ortiz Files ADA Suit in W.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Condor Outdoor Products Inc. The case is styled as Joseph Ortiz, on behalf of himself and all other persons similarly situated v. Condor Outdoor Products Inc., Case No. 1:22-cv-00707 (W.D.N.Y., Sept. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Condor Outdoor Products Inc. -- https://condoroutdoor.com/ -- specializes in tactical vests, plate carriers, modular pouches, packs, apparel and other tactical gear.[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 CORNERSTONE NATIONAL: Reynolds Files Suit in W.D. Missouri ---------------------------------------------------------- A class action lawsuit has been Cornerstone National Insurance Company. The case is styled as Toni Reynolds, on behalf of herself and all similarly situated persons v. Cornerstone National Insurance Company, Case No. 2:22-cv-04140-NKL (W.D. Mo., Sept. 16, 2022). The nature of suit is stated as Other P.I. for Personal Injury. Cornerstone National Insurance Company -- https://www.cornerstonenational.com/ -- operates as an insurance firm. The Company offers auto insurance and flood coverages.[BN] The Plaintiff is represented by: Maureen M. Brady, Esq. MCSHANE & BRADY LLC 1656 Washington Street, Suite 140 Kansas City, MO 64108 Phone: (816) 888-8010 Fax: (816) 332-6295 Email: mbrady@mcshanebradylaw.com COTY INC: Meza Sues Over Deceptive and Unlawful Labeling -------------------------------------------------------- Antoinette Meza, as an individual, on behalf of herself, the general public and those similarly situated v. COTY, INC., Case No. 5:22-cv-05291-NC (N.D. Cal., Sept. 16, 2022), is brought against the Defendants to seek redress for Defendant's deceptive and unlawful practices in labeling and marketing its cosmetic products that make "24 HR" SPF claims. The Defendant sells cosmetic products under the brand names CoverGirl and Rimmel. Intending to profit from consumers' desire to protect their skin from the sun's harmful rays, Defendant developed cosmetic products with SPF protection, and labeled these products with "24 HR" claims such as "24 HR FULL COVERAGE SPF 18 OCTINOXATE SUNSCREEN LIQUID FOUNDATION" on the CoverGirl Extreme 3-in-1 Foundation. The products do not and cannot provide 24 hours of SPF protection. The products' labels are therefore false, deceptive and/or misleading. Furthermore, the products' labels violate federal and California regulations regarding labeling for each of the following reasons. Under the Federal Food, Drug, and Cosmetic Act, the products are each a "sunscreen" because the labeling suggests to consumers that it is intended to "prevent, cure, treat, or mitigate disease or to affect a structure or function of the body." The products contain sunscreen ingredients, including octinoxate. Therefore, the products are required to comply with, inter alia, sunscreen labeling requirements that generally prohibit "claims that would be false and/or misleading on sunscreen products." The claims are therefore false and misleading in violation of the Act. For the same reason, the labeling of the Products also violates California Health & Safety Code, which states that cosmetics "any cosmetic is misbranded if its labeling is false or misleading in any particular." Plaintiff brings this action to stop Defendant's misleading practices, says the complaint. The Plaintiff purchased the CoverGirl Extreme 3-in-1 Foundation on multiple occasions from 2018-2022 from local retail stores. The Defendant manufactures, distributes, markets, advertises, and sells a variety of cosmetic products under the brand names "CoverGirl" and "Rimmel".[BN] The Plaintiff is represented by: Seth A. Safier, Esq. Marie A. McCrary, Esq. Hayley Reynolds, Esq. GUTRIDE SAFIER LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Phone: (415) 639-9090 Facsimile: (415) 449-6469 Email: seth@gutridesafier.com marie@gutridesafier.com COUNTER BRANDS: Hernandez Sues Over Unsolicited Marketing --------------------------------------------------------- Arthur Hernandez, individually and on behalf of others similarly situated v. Counter Brands, LLC d/b/a/ Beautycounter, Case No. 9:22-cv-81450-DMM (S.D. Fla., Sept. 19, 2022), is brought against the Defendant to secure redress for violations of the Telephone Consumer Protection Act as a result of the Defendant's unsolicited marketing. To promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process. Through this action, the Plaintiff seeks injunctive relief to halt Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. The Plaintiff also seeks statutory damages on behalf of himself and members of the class, and any other available legal or equitable remedies, says the complaint. The Plaintiff is a natural person residing in the County of Palm Beach, City of Delray Beach, State of Florida. The Defendant manufactures and sells cosmetic products.[BN] The Plaintiff is represented by: Mohammad Kazerouni, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Ave,. Suite D1 Costa Mesa, CA 92626 Phone: (800) 400-6808 Facsimile: (800) 520-5523 Email: mike@kazlg.com - and - Ryan L. McBride, Esq. KAZEROUNI LAW GROUP, APC 301 E. Bethany Home Road, Suite C-195 Phoenix, AZ 85012 Phone: (800) 400-6808 Facsimile: (800) 520-5523 Email: ryan@kazlg.com CRESCO LABS: Emperor Sues Over Unpaid Overtime Wages ---------------------------------------------------- Robert Emperor and Colt Monroe, individually, and on behalf of others similarly situated v. CRESCO LABS, LLC, a limited liability company, and JDRC MANAGED SERVICES, LLC, a limited liability company, Case No. 1:22-cv-05037 (N.D. Ill., Sept. 16, 2022), is brought arising from Cresco's willful violations of the Fair Labor Standards Act the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act seeking unpaid overtime wages, liquidated damages, and attorneys' fees and costs. Throughout the Plaintiffs' employment with Cresco, the Plaintiffs routinely worked more than 40 hours in a workweek. The Defendants violated the FLSA by knowingly suffering or permitting the Plaintiffs and similarly situated employees to work in excess of 40 hours during a workweek without paying overtime compensation at a rate of 1.5 times the regular rate, says the complaint. The Plaintiffs were employed by Cresco as Cultivation and Processing Employees. Cresco is one of the largest vertically-integrated multi-state cannabis operators in the United States.[BN] The Plaintiff is represented by: Matthew L. Turner, Esq. Alana A. Karbal, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, MI 48076 Phone: (248) 355-0300 Email: mturner@sommerspc.com akarbal@sommerspc.com - and - Benjamin Knox Steffans, Esq. STEFFANS LEGAL PLLC 10 Wendell Ave. Ext. Suite 208 Pittsfield, MA 01201 Phone: (413) 418-4176 Email: bsteffans@steffanslegal.com DBI SERVICES: Priest's Default Judgment Bid Denied W/o Prejudice ---------------------------------------------------------------- In the case, KEVIN PRIEST, et al., Plaintiffs v. DBI SERVICES, LLC, Defendant, Civil Action No. 3:21cv712(RCY) (E.D. Va.), Judge Roderick C. Young of the U.S. District Court for the Eastern District of Virginia, Richmond Division, denies without prejudice the Plaintiff's Motion for Default Judgment. The Plaintiff, on behalf of himself and on behalf of other similarly situated employees, brought the class action suit against the Defendant to recover pay and benefits under the Worker Adjustment and Retraining Notification Act of 1988. Pursuant to 28 U.S.C. Section 636(b)(1)(B), and by Order of Reference, the matter was referred to U.S. Magistrate Judge Elizabeth W. Hanes for a Report and Recommendation ("R & R"). In the R & R, filed on July 21, 2022, Magistrate Judge Hanes recommended that the Court denies without prejudice the Plaintiff's Motion for Default Judgment. By copy of the R & R, each party was advised of the right to file written objections to the findings and recommendations made by the Magistrate Judge within 14 days from the date the R & R was forwarded to the objecting party by Notice of Electronic Filing or mail, computed pursuant to Rule 6(a) of the Federal Rules of Civil Procedure. Rule 6(d) permits an extra three days if service occurs by mail. The parties were further advised that failure to file timely objections to the findings and recommendations would result in a waiver of any right to a de novo review of the determinations contained in the R & R. The time for filing written objections has passed, and neither party has filed objections. In the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Judge Young has reviewed the R & R and finds no clear error on the face of the record. Accordingly, he adopts and approves in full the findings and recommendations set forth in the R & R. The Plaintiff's Motion for Default Judgment is denied without prejudice. The Clerk is directed to provide a copy of the Order to all counsel of record. A full-text copy of the Court's Sept. 14, 2022 Amended Order is available at https://tinyurl.com/mv3bh9c2 from Leagle.com. DENIHAN OWNERSHIP: Dawkins Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Denihan Ownership Company, LLC. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. Denihan Ownership Company, LLC, Case No. 1:22-cv-05600 (E.D.N.Y., Sept. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Denihan -- https://www.denihan.com/ -- is a family-owned American hotel and hotel management company based in New York City.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com DEUTSCHE BANK: Agrees to Settle Shareholders' Suit for $26.3-M --------------------------------------------------------------- Jonathan Stempel at Reuters reports that Deutsche Bank AG agreed to pay $26.25 million to settle a U.S. shareholder lawsuit accusing the German bank of lax oversight while doing business with risky, ultra-rich clients like Jeffrey Epstein and Russian oligarchs. The preliminary all-cash settlement filed in federal court in Manhattan requires approval by U.S. District Judge Jed Rakoff, who in June allowed the proposed class action to proceed. Shareholders led by Yun Wang, who traded Deutsche Bank stock in 2018 and 2020, claimed that the bank had known its know-your-customer and anti-money laundering controls were ineffective, and that its share price fell as problems emerged. Deutsche Bank denied wrongdoing in agreeing to settle. Chief Executive Christian Sewing and his predecessor John Cryan are also defendants, and also denied wrongdoing. A bank spokesman declined to comment. Sewing has since taking over in 2018 tried to show investors that Deutsche Bank has addressed its internal controls shortfalls. The lawsuit faulted Deutsche Bank's work with Epstein, the late financier and sex offender, and with Danske Bank's Estonia branch, which become embroiled in a money laundering scandal. New York's Department of Financial Services fined Deutsche Bank $150 million in July 2020 over its relationships with Epstein and Danske Estonia. Shareholders also objected to Deutsche Bank's taking on oligarchs like billionaire Roman Abramovich as clients, in what they called the bank's "relentless pursuit of profits." The settlement covers Deutsche Bank investors in the United States from March 14, 2017 to Sept. 18, 2020. Lawyers for the plaintiffs said the $26.25 million payout is 49.4% of the "likely recoverable" damages available, compared with a median 1.8% in settled securities class actions in 2021. The lawyers may seek up to one-third of the settlement fund for legal fees. The case is Karimi v Deutsche Bank AG et al, U.S. District Court, Southern District of New York, No. 22-02854. [GN] ENERGY TRANSFER: Appeals Class Cert. Ruling in Allegheny Cty. Suit ------------------------------------------------------------------ ENERGY TRANSFER LP, et al., filed an appeal from a court ruling granting class certification in the lawsuit entitled ALLEGHENY COUNTY EMPLOYEES' RETIREMENT SYSTEM, et al., v. ENERGY TRANSFER LP, et al., Case No. 2-20-cv-00200, in the U.S. District Court for the Eastern District of Pennsylvania. The Plaintiffs retirement systems and pension plans brought the action for themselves and on behalf of a class of shareholders in Energy Transfer LP against Energy Transfer, its subsidiary, and certain executives. The Plaintiffs' allegations center around a series of allegedly false or misleading statements and omissions made in reference to the Defendants' construction of three natural gas pipelines related to the Mariner East system across Pennsylvania: the ME2, the ME2x, and the Revolution Pipeline. These statements related to the anticipated timeline of the pipeline's construction; pipeline capacity; the safety of the pipeline and its compliance with various government orders related to safety; the Defendants' adherence to a code of ethics; and the Defendants' general compliance with the law. After the Defendants moved to dismiss, Judge McHugh issued a memorandum and order that reviewed in detail the various misrepresentations and omissions alleged by the Plaintiffs in order to determine whether they were actionable. He dismissed statements from 22 paragraphs of the Complaint for various reasons, finding that the remaining statements were actionable. In denying the motion to dismiss, he rejected the Defendants' arguments that the corrective disclosures regarding the project timeline, the pipeline capacity, and government investigations were legally insufficient to establish loss causation for the misrepresentations alleged. Having survived a motion to dismiss, the Plaintiffs sought class certification of their claims against the Defendants for publicly making statements that omitted material information and made material misrepresentations in violation of the Exchange Act. The parties have submitted extensive briefing on the motion, and a hearing was held where both parties vigorously advocated their positions before the Court. As reported in the Class Action Reporter on Sept. 6, 2022, Judge Gerald Austin McHugh of the U.S. District Court for the Eastern District of Pennsylvania granted the Plaintiffs' motion for class certification. Judge McHugh concluded that the Plaintiffs have proven that class certification is appropriate. They have established all the Rule 23(a) elements, as well as the necessary elements of Rule 23(b)(3). Following consideration of all the relevant evidence -- quantitative and qualitative alike -- he found that the Defendants fail to meet their burden to rebut the presumption of market impact, with the result that the Plaintiffs can show predominance. The appellate case is captioned as Energy Transfer LP, et al. v. Allegheny County Employees Retirement System, Case No. 22-8045, in the U.S. Court of Appeals for the Third Circuit, filed on Sept. 6, 2022.[BN] Defendants-Petitioners NERGY TRANSFER LP, et al., are represented by: K. Virginia Burke DeBeer, Esq. Graham Carney, Esq. Michael C. Holmes, Esq. James Hopper, Esq. Robert P. Ritchie, Esq. Craig Zieminski, Esq. VINSON & ELKINS 2001 Ross Avenue, Suite 3900 Dallas, TX 75201 Telephone: (214) 220-7700 - and - Curtis J. Crowther, Esq. ROBINSON & COLE 1201 North Market Street, Suite 1406 Wilmington, DE 19801 Telephone: (302) 516-1700 - and - Laura H. McNally, Esq. Karen P. Pohlmann, Esq. Marc J. Sonnenfeld, Esq. MORGAN LEWIS & BOCKIUS 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5257 Plaintiff-Respondent ALLEGHENY COUNTY EMPLOYEES RETIREMENT SYSTEM, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, is represented by: Jeffrey A. Barrack, Esq. Jeffrey W. Golan, Esq. Robert A. Hoffman, Esq. Meghan J. Talbot, Esq. BARRACK RODOS & BACINE 2001 Market Street, 38th Floor 3300 Two Commerce Square Philadelphia, PA 19103 Telephone: (215) 963-0600 - and - John C. Browne, Esq. Michael M. Mathai, Esq. Adam H. Wierzbowski, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN 1251 Avenue of the Americas, 44th Floor New York, NY 10020 Telephone: (212) 554-1400 - and - Chad A. Carder, Esq. BARRACK RODOS & BACINE One Gateway Center, Suite 2600 Newark, NJ 07102 Telephone: (212) 688-0782 - and - James M. Fee, Esq. FEGAN SCOTT 140 Broadway, 46th Floor New York, NY 10016 Telephone: (212) 907-0700 - and - James M. Ficaro, Esq. THE WEISER LAW FIRM 200 Barr Harbor Drive Four Tower Bridge, Suite 400 West Conshohocken, PA 19428 Telephone: (610) 225-0206 - and - Richard D. Gluck, Esq. GARVEY SCHUBERT BARER 1000 Potomac Street, N.W., Suite 200 Washington, DC 20007 Telephone: (202) 298-1786 - and - Jacob A. Goldberg, Esq. ROSEN MOSS SNYDER 1300 Virginia Drive, Suite 310 Fort Washington, PA 19034 Telephone: (215) 600-2817 - and - Mark S. Goldman, Esq. GOLDMAN SCARLATO & PENNY 161 Washington Street 8 Tower Bridge, Suite 1025 Conshohocken, PA 19428 Telephone: (484) 342-0700 EVER AFTER: Music Festival Organizers May Face Refund Class Suit ---------------------------------------------------------------- Casey Taylor, writing for CityNews Everywhere, reports that what was meant to be three days of fun and music has seemingly turned into a three-year ordeal. It seems a years' long struggle continues for those who've sunk hundreds if not thousands of dollars into plans to attend the Ever After Music Festival. "Absolutely, I had two kids between now and buying those tickets," said Emma Catto, a would-be festival-goer who says she spent nearly $400 on a pair of passes back when the festival was supposed to be held in Kitchener -- in 2019. In the years since, the festival has seen multiple delays and a change in venue. It had been supposed to run at Burl's Creek in Oro-Medonte in mid-August but that too was cancelled after the township denied organizers a required permit. "So I know that many are now out thousands of dollars in plane tickets and hotel fees and so-on and so-forth," said Catto. "Whereas I'm somewhat lucky as being closer to the event grounds and only being out the cost of a ticket, a lot of people have lost a lot more on this." Shortly after suggesting they were still looking for a path forward, organizers were forced to cancel the three-day festival and took to social media to say an email had been sent out containing all the information needed to obtain a refund. Since then though, those waiting for their money back say it's been radio silence. "There's no way to contact Ever After," Catto said. "I know several people have tried contacting them through social media and they'd get back and say they'd do something about it and basically just go 'ghost' on them there." In an Instagram post dated August 16, festival organizers suggested refunds were being processed but it could take up to 15 business days for some to receive them. "What they've been doing [since] is they've been taking away the abilities for ticket buyers to comment on any of these new updates on social media so there's no way to show that no one's receiving their refunds," Catto said, adding people had taken to commenting on older posts instead. "And they're still not answering anything, they're actually deleting the posts so that people can't see that the refunds haven't been issued yet," she said. At last check, the festival's website also appears to have been taken offline. CityNews 570 did attempt to reach out to festival organizers for an update through the event's PR firm but even that was a dead-end. "I'm still trying to figure out something because it's not pocket change losing $400 to a festival that never happened and I know that there are many people in a worse situation than me," said Catto. "The only next step would be grouping with some others in a class action lawsuit of sorts or just keep on waiting, but at this point I don't think we can trust [the organizers] to do the right thing and refund everyone who bought tickets their money." She went on to say, one way or the other, this experience has likely taught her and many others a valuable lesson. "As far as buying any tickets for a festival, I'm definitely going to be reading those terms and conditions fully to make sure that I'm protected in a circumstance like this," Catto said. "And as for this festival, I hope that it never runs again." [GN] EXECUPHARM INC: Third Circuit Revives Data Breach Class Action -------------------------------------------------------------- Harris Freier, Esq., of Genova Burns LLC, in an article for JDSupra, reports that the Third Circuit Court of Appeals has given new life to a putative class action suit led by a former employee of a company that suffered a ransomware attack, leading to her sensitive information being released onto the Dark Web. In February 2021, the District Court for the Eastern District of Pennsylvania dismissed her case for lack of standing, due to the "speculative nature" of the injuries to the employees. However, on September 2, 2022, the United States Court of Appeals for the Third Circuit vacated the judgment of the District Court, and remanded the case for consideration on the merits (a fresh examination of the evidence and facts presented), giving the potential class of plaintiffs a new chance for relief. Facts Jennifer Clemens is a former employee of biopharmaceutical company ExecuPharm, Inc. ("ExecuPharm"), a subsidiary of Parexel International Corp., headquartered in Newton, Massachusetts. Upon her hire, Clemens was required to provide to the company a long list of personal information, including her address, social security number, bank and financial account numbers, insurance and tax information, her passport, and information relating to her husband and child. Her employment agreement provided that ExecuPharm would "take appropriate measures to protect the confidentiality and security" of the personal information. However, in March 2020, after Clemens had already left the company, ExecuPharm was subject to a phishing attack, in which their servers were hacked, and sensitive information of former and current employees was stolen. The hackers initiated a ransomware attack, installing malware to encrypt the hacked data, and threatening to release the information from the server if ExecuPharm did not pay a ransom. ExecuPharm did not pay this ransom, and as a result, this personal data, including the sensitive information of Clemens, was posted on the Dark Web, a hidden portion of the Internet where individuals sell and purchase illegal products such as stolen personal data, to commit identity theft or fraud. After Clemens was informed by ExecuPharm of the breach, she took swift action by reviewing her financial records and credit reports, switching banks and purchasing credit monitoring services. Clemens did not suffer any actual identity theft or fraud. However, she still feared that she would suffer harm from this incident in the future. As a result, she sued ExecuPharm and Parexel in the United States District Court for the Eastern District of Pennsylvania under the Class Action Fairness Act, with claims for negligence, breach of contract, breach of fiduciary duty and breach of confidence. District Court Dismisses the Case In February 2021, the District Court dismissed Clemens's case based on lack of standing. To bring a suit in federal court, a plaintiff must have Constitutional standing, known as "Article III Standing." That means that the plaintiff must demonstrate a personal stake in the suit's outcome. In order to show standing, a plaintiff must, among other things, demonstrate that "he or she suffered an injury in fact that is concrete, particularized, and actual or imminent." The District Court found that allegations of an increased risk of identity theft based on a data breach, without actual identity theft occurring, are insufficient to establish standing in federal court. The Court reasoned that the risk of future harm as a result of the hack was "speculative" in nature, and the money that she spent mitigating this speculative risk was insufficient to create standing. Clemens appealed this dismissal with the Third Circuit Court of Appeals, in front of a three-judge panel. Court of Appeals Decision The Third Circuit Court of Appeals unanimously vacated the District Court's dismissal of Clemens's complaint, and remanded the entire case for consideration on the merits of Clemens's claims. The Court clarified that an injury can be "imminent" in order to qualify for standing, and does not need to have actually taken place at the time of suit being filed. Based on precedent in the area of data breaches, the Court of Appeals determined that the substantial risk of future injury qualifies for standing based on imminence, especially in the event of an intentional, targeted attack by a hacking group. The Court followed the trend of other jurisdictions, which found that actual misuse of the data is not necessarily required in this context. Finally, to conclude its analysis for standing, the Court also determined that an intangible injury, such as the injury in question, can count as sufficiently concrete. The emotional distress that a victim of a data breach experiences is sufficient. As for the contract, tort and secondary contract claims, the Court of Appeals determined that for the pleading stage of the litigation, Clemens had successfully set forth that her injuries came as a "direct and proximate" result of ExecuPharm's failure to safeguard her information, which they had contracted to do, and established a duty to do. As a result, the Court of Appeals ruled that the District Court should consider her claims on their merits. From a public policy perspective, the Court of Appeals warned of "uniquely drastic consequences" of failing to uphold these provisions in the digital age. Bottom Line In this new age of cybersecurity threats, companies must make a considerable effort to protect their employees' personal and sensitive information stored on their servers. Businesses must engage in data minimization by attempting to only collect the personally identifiable information of employees and customers which is absolutely needed for their business. The Third Circuit decision makes it easier than ever for victims of data breaches to pursue class actions even if they have not yet been harmed. Businesses should also consider cyber insurance due to the increasing threats of data breaches and resulting class action litigation. Obviously preventing cyber security attacks and responding appropriately if and when the breaches occur, are the best ways to reduce potential class action liability. Our firm is well equipped to assist your company both in the prevention and response to cyber-attacks. Even the best preparation cannot always prevent litigation, and to the extent you are faced with a class action resulting from a data breach, our litigators will work with you to put your company in the best possible position for success. [GN] FIRST TACTICAL: Ortiz Files ADA Suit in W.D. New York ----------------------------------------------------- A class action lawsuit has been filed against First Tactical, LLC. The case is styled as Joseph Ortiz, on behalf of himself and all other persons similarly situated v. First Tactical, LLC, Case No. 1:22-cv-00708 (W.D.N.Y., Sept. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. First Tactical -- https://www.firsttactical.com/ -- offers tactical gear for elite operators, law enforcement officers, and first responders around the globe.[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 FLORIDA: A&M Students File Suit Over Racially Biased Funding Gap ---------------------------------------------------------------- Khristopher J. Brooks at cbsnews.com reports that black students at Florida Agricultural & Mechanical University are suing the state over alleged racial discrimination, claiming that local political leaders have deliberately denied the historically black college equal funding with the University of Florida, a predominantly White school. The class-action lawsuit, filed in federal court in Florida, also accuses state higher education officials of duplicating academic programs Florida A&M (FAMU) is known for in an attempt to siphon enrollment from the school. The lawsuit names six FAMU students as plaintiffs and Florida's higher education system, including Chancellor Marshall Criser III, as defendants. FayeRachel Peterson, a graduate student in chemistry, said she was motivated to file the lawsuit after realizing early last month that she was paid really poorly as a research assistant at FAMU while her friend at Florida State University doesn't have to worry about working while studying for a master's degree. Peterson said she believes her graduate stipend is so low because FAMU isn't receiving the same amount of funding as the other Florida public universities. "Even if I can't get more funding, I would hope in the future that other students can have better opportunities," Peterson told CBS MoneyWatch. Neither the State University System of Florida nor Gov. Ron DeSantis' office responded to a request for comment. The lawsuit is noteworthy because FAMU and the U. of Florida are both land-grant universities, which means under federal law they should receive equal per-student funding. Over the past 30 years, however, state leaders have created a $1.3 billion funding gap between UF and FAMU, the lawsuit contends. Between 2018 and 2021, FAMU received $98.4 million in state aid, compared with $415.6 million for UF. Peterson and the other students are asking the Florida court to order state leaders to repay FAMU the state aid it should have received all those years and to begin providing the school the same amount of per-student funding as UF within the next five years, attorney Barbara Hart, who is also representing the students, told CBS MoneyWatch. The underfunding has forced FAMU to fall behind on maintenance of its facilities, such as school buildings and student housing, according to the suit. A $111 million facilities debt in 2020 forced the university to temporarily shutter its 60,000-square-foot recreation center until February of last year. Last month, the school also briefly closed one of its dorms due to flood damage and pest issues. "Our school has always made a little go a long way, but we shouldn't have to," Britney Denton, a FAMU doctoral student and plaintiff in the case, said in a statement. "We're proud to be here and we want Florida to be proud to support us and other HBCUs equally." Historically Black colleges and universities, or HBCUs, date back to the 1800s, and they have been underfunded for decades, according to higher education experts. Billions of dollars in state aid that they say should have gone to those schools have been diverted by lawmakers for other purposes. A Forbes investigation found that FAMU has been underfunded by $1.9 billion since 1987, the second-largest disparity behind North Carolina Agricultural and Technical State University at $2.8 billion. HBCU leaders say the denial of state funding to their colleges largely comes down to old-school racism. State legislators, who largely control funding for higher education, have long viewed such institutions as inferior, HBCU officials told CBS MoneyWatch. That has constrained the schools in offering more competitive salaries for faculty and scholarships for top students, school officials said. "This deliberate indifference toward HBCUs is not unique to Florida, but FAMU is where we're joining the fight to ensure the education is fair for everyone," one of the students' lawyers, Josh Dubin, said in a statement. Public HBCUs are funded by both states and the federal government. Congress sets aside millions annually for each school, depending on a formula that's based on enrollment, scholarly pursuits and other metrics and the state where the school resides is supposed to match that funding dollar-for-dollar. For example, if Alcorn State University was awarded $50 million in federal aid, then state lawmakers in Mississippi are supposed to chip in an additional $50 million for a total of $100 million to the school. Yet HBCU presidents and education experts said that the so-called $1-to-$1 match rarely happens in practice, pointing to a general refusal by state lawmakers over many years to match the federal investment. "Throughout its history and up to the present day, Florida has purposefully engaged in a pattern and practice of racial discrimination, principally through disparate funding, that has prevented HBCUs, including FAMU, from achieving parity with their traditionally White institution counterparts," the complaint alleges. The FAMU lawsuit marks what could be the beginning of restoring millions of lost dollars to the Tallahassee school. Lawyers representing FAMU students said they demand the state begin giving the university equal funding to UF within five years. HBCUs in Maryland and Tennessee are also pushing to reclaim millions of dollars in state aid they never received. [GN] FLORIDA: Seeks Dismissal of Class Action Over Medicaid Program -------------------------------------------------------------- Jim Saunders, writing for Daily Business Review, reports that Florida is trying to fend off a potential class-action lawsuit alleging that the Medicaid program is denying coverage for incontinence supplies in violation of laws such as the Americans with Disabilities Act. Attorneys for the state filed documents in federal court in Jacksonville disputing that two named plaintiffs had legal standing to pursue the case and arguing that it should not be considered as a class action. The lawsuit, filed in July, said the Medicaid program stopped providing incontinence supplies to plaintiffs Blanca Meza and Destiny Belanger after they turned 21, though they are incontinent and unable to care for themselves. It alleges the state is violating federal Medicaid law and laws including the Americans with Disabilities Act. But in a document filed to answer the complaint, attorneys for the state argued, in part, that the women did not have legal standing because they "have not been exposed to an unreasonable and serious risk of unnecessary institutionalization." Also, the attorneys wrote that the state Medicaid program operates under regulations approved by the federal Centers for Medicare & Medicaid Services. "Defendant (the state) has a comprehensive, effectively working plan for providing qualified individuals with necessary services to prevent unnecessary institutionalization," the document said. "Alternatively, any relief the court deems necessary should be limited to narrowly address the harm before it and not unnecessarily affect defendant's otherwise comprehensive, effectively working plan for the delivery of Medicaid services that has been reviewed and approved by CMS (the Centers for Medicare & Medicaid Services)." The lawsuit said the state provides incontinence supplies, such as briefs, diapers and underpads, for Medicaid beneficiaries under age 21 and for certain adults, including people in nursing homes and people in what are known as Medicaid home- and community-based services "waiver" programs. But that coverage does not apply to Meza, a Duval County resident, and Belanger, a St. Johns County resident. As an example of their disabilities, the lawsuit said Meza "is diagnosed with spastic quadriplegic cerebral palsy, muscle spasticity, neuromuscular scoliosis and partial epilepsy." "Plaintiffs are medically fragile adults each with bladder and bowel incontinence," said the lawsuit, which also includes the advocacy organization Disability Rights Florida as a plaintiff. "As low-income Florida residents with significant disabilities, they receive their health services through Florida's Medicaid program. Plaintiffs' physicians have prescribed certain incontinence supplies, including briefs and underpads, as medically necessary to treat plaintiffs' incontinence, keep their skin dry and clean, prevent skin breakdowns and infections and maintain their ability to live in the community." The lawsuit names as a defendant Simone Marstiller, the secretary of the Florida Agency for Health Care Administration, which operates the massive Medicaid program. The plaintiffs also are seeking a preliminary injunction. A judge in 2010 ordered the state to provide incontinence briefs to Medicaid beneficiaries under age 21, the lawsuit said. Medicaid also provides incontinence supplies for adults in nursing facilities; adults with AIDS and a history of "AIDS-related opportunistic infection;" and adults enrolled in the state's long-term care and iBudget waiver programs, according to documents in the case. The iBudget program, for instance, serves people with developmental disabilities. But the lawsuit, filed by attorneys for the Florida Health Justice Project and Disability Rights Florida, said the waiver programs have long waiting lists, and Meza and Belanger receive care in their families' homes. The lawsuit said Meza's family faces $188 a month in costs, while Belanger's family faces $200 a month in costs. In addition to disputing underlying arguments in the lawsuit, attorneys for the state also contended that the case should not move forward as a class action on behalf of a broad number of Medicaid beneficiaries. "Here, the alleged commonality of the proposed class and typicality of the named plaintiffs must fail because neither the named plaintiffs nor the proposed class suffer the same harms that depend on the resolution of a common contention," the state's attorneys, Erik Figlio and Alexandra Akre, wrote. [GN] FLOWERS FOODS: Salgado Sues Over Unpaid Statutorily Required Wages ------------------------------------------------------------------ James Salgado, on behalf of himself and all others similarly situated v. Flowers Foods, Inc., a Georgia corporation, and Holsum Bakery, Inc., an Arizona corporation, Case No. 4:22-cv-00420-JGZ (D. Ariz., Sept. 15, 2022), is brought against the Defendants for violations of the Fair Labor Standards Act and the Arizona wage laws as a result of the Defendants' misclassification of their Arizona bakery distributor drivers as "independent contractors" and failed to pay them statutorily required wages. The Plaintiff alleges that they are entitled to unpaid wages including unpaid minimum wage and overtime for all hours worked exceeding 40 in a workweek, liquidated damages, and attorneys' fees and costs, pursuant to the FLSA; and that they are entitled to timely payment of all wages due, plus interest, treble damages, and penalties as allowed by the Arizona Wage Statute, and that they are entitled to payment of the minimum wage, plus interest, statutory damages, and penalties as allowed by the Arizona Minimum Wage Statute, says the complaint. The Plaintiff worked for the Defendants as a Distributor in Arizona and performs delivery and merchandizing services to local retailers of bakery and snack food products manufactured or sold by Flowers and Holsum Bakery. Flowers Foods, Inc. and its subsidiary, Holsum Bakery, Inc. are in the wholesale bakery business.[BN] The Plaintiff is represented by: Ty D. Frankel, Esq. YEN PILCH ROBAINA & KRESIN PLC 6017 N. 15th Street Phoenix, AZ 85014 Phone: (602) 682-6450 Email: TDF@yprklaw.com - and - Patricia N. Syverson, Esq. YEN PILCH ROBAINA & KRESIN PLC 9655 Granite Ridge Drive, Suite 200 San Diego, CA 92123 Phone (619) 756-7748 Email: PNS@yprklaw.com FREEDOM FINANCIAL: Rainford Sues Over Unpaid Overtime Premiums -------------------------------------------------------------- Nickeisha Rainford, individually and on behalf of all similarly situated individuals v. FREEDOM FINANCIAL NETWORK, LLC, Case No. 3:22-cv-05260 (N.D. Cal., Sept. 15, 2022), is brought to recover an award of unpaid wages and overtime premiums, liquidated damages, penalties, injunctive and declaratory relief, attorneys' fees and costs, pre- and post-judgment interest, and any other remedies to which he and the putative Classes may be entitled under the Fair Labor Standards Act, the Arizona Wage Act, and alleged contractual obligations (or unjust enrichment if no contract is found), and other appropriate rules, regulations, statutes, and ordinances. The Defendant subjected the Plaintiff to the Defendant's policy and practice of failing to compensate its call center employees for their necessary boot-up work, which resulted in the failure to properly compensate them as required under applicable federal and state laws. Throughout Plaintiff's employment with Defendant, Plaintiff regularly worked at least 40 hours per workweek. The Defendant knew, or should have known, that the FLSA requires the Defendant to compensate non-exempt employees who work in excess of 40 hours in a workweek at a rate of one and one-half times their regular rate of pay—including the compensable boot-up work performed. Despite this, Defendant failed to compensate Plaintiff, and all other current and/or former CSRs, for their boot-up work performed in excess of 40 hours in a workweek at one and one- half times their regular rates of pay, says the complaint. The Plaintiff worked for the Defendant as a Customer Service Representative from 2019 to April 2021. The Defendant operates customer service call center locations and/or employs remote customer service employees in Arizona and Texas.[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 - Jacob R. Rusch, Esq. Zackary S. Kaylor, Esq. JOHNSON BECKER, PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Phone: (612) 436-1800 Fax: (612) 436-1801 Email: jrusch@johnsonbecker.com zkaylor@johnsonbecker.com GEORGETOWN FLOWERS: Zinnamon Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Georgetown Flowers & Gifts, LLC. The case is styled as Warren Zinnamon, on behalf of himself and all others similarly situated v. Georgetown Flowers & Gifts, LLC, Case No. 1:22-cv-08003 (S.D.N.Y., Sept. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Georgetown Flowers & Gifts -- https://www.georgetownflowers.com/ -- is a florist in Georgetown, Kentucky.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com GILBANE FEDERAL: Morrobel Sues to Recover Unpaid Overtime Wages --------------------------------------------------------------- Frances Morrobel, and other similarly situated individuals v. Gilbane Federal Company a/k/a Innovative Technical Solutions, Inc. d/b/a Gilbane Building Company, Case No. 3:22-cv-00998 (M.D. Fla., Sept. 15, 2022), is brought to recover money damages for unpaid half-time overtime wages under the Fair Labor Standards Act. The Plaintiff worked a total of 66 hours weekly, but she was not paid for overtime hours as established by law. The Plaintiff clocked in and out, but she was authorized to report only 40 hours weekly. The Defendant instructed Plaintiff to report only 40 hours weekly, but the Plaintiff's superiors demanded her to work off-the-clock hours. The Defendant knew about the total number of hours worked by Plaintiff. Therefore, the Defendant willfully failed to pay Plaintiff overtime hours at the rate of time and one-half her regular rate for every hour that she worked over 40, in violation of the FLSA, says the complaint. The Plaintiff was employed by Defendant as a non-exempted, full-time, salaried employee from March 26, 2018, to February 14, 2022. Gilbane Building Company is a building general contractor and facility management services firm.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com GOLDEN STATE: Denial of Bid for Arbitration in Hunt Suit Affirmed ----------------------------------------------------------------- In the case, BILLY HUNT, JR., et al., Plaintiffs and Respondents v. GOLDEN STATE BORING & PIPE JACKING, INC., Defendant and Appellant, Case No. E076407 (Cal. App.), the Court of Appeals of California for the Fourth District, Division Two, affirms the superior court's order granting in part and denying in part the Defendant's motion to compel arbitration. Plaintiffs Billy Hunt, Jr., and Thomas Ray, individually and on behalf of a putative class, sued their former employer, Defendant and Appellant Golden State Boring & Pipe Jacking (GSB), for violations of various provisions of California's wage and hour laws. GSB moved to compel arbitration pursuant to the collective bargaining agreements (CBA) between it and the labor unions representing the Plaintiffs. The superior court granted the motion as to Ray but denied it as to Hunt on the ground the arbitration provisions in his CBAs were not explicit, clear and unmistakable. The Plaintiffs were union employees of GSB. Hunt's employment from January 1997 to August 2019 was subject to two different CBAs: Hunt's 2013 CBA and Hunt's 2016 CBA. Ray's employment from October 2006 to August 2019 was subject to two different CBAs: Ray's 2015 CBA and Ray's 2018 CBA. On Oct. 11, 2019, the Plaintiffs initiated the action seeking to represent a class comprising current and former nonexempt employees of GSB. By way of their second amended complaint, they assert six claims against GSB: (1) failure to pay overtime wages, (2) improper deductions from earned wages, (3) failure to provide accurate itemized wage statements, (4) failure to pay all wages within the required time and upon separation of employment, (5) violation of Business and Professions Code section 17200 et seq., and (6) civil penalties under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, Section 2698 et seq.; PAGA). On March 13, 2020, GSB moved to compel arbitration of the Plaintiffs' individual claims on the ground their grievances are covered by the arbitration provisions in their CBAs. GSB also sought to dismiss the class action claim on the ground the arbitration provisions in their CBAs do not permit collective actions. The initial hearing on the motion was continued to allow supplemental briefing on, inter alia, whether the arbitration provisions in the CBAs "'clearly and unmistakably'" waive the Plaintiffs' right to bring these claims in a judicial forum. GSB relied on section L, of article XVI, entitled, "Working Rules," in Hunt's 2013 CBA: "Sanitation, Safety and Rest Periods: 1. All approved Safety Orders of the California Division of Industrial Safety will be observed by the Contractor and the employees: (a) The parties to this agreement recognize Industrial Wage Order 16-2001 covering, 'On Site Construction, Mining, Drilling, and Logging Industries.' Any dispute or grievance arising from the Wage Order will be processed under and in accordance with Article V, Procedure for Settlement of Grievances and Disputes of this agreement." The italicized language in article XVI, section L, subparagraph 1(a), is a verbatim wording of the waiver found to be sufficient to compel arbitration of claims arising under Industrial Welfare Commission wage order No. 16-2001 (wage order 16). However, the provision in Hunt's 2013 CBA is found only under article XVI, section L, entitled, "Sanitation, Safety and Rest Periods." Hunt's 2016 CBA expands the arbitration provision in article XVI, section L, subparagraph 1(a). In both of Hunt's CBAs, the remaining subparagraphs of article XVI, section L, address various sanitation and safety issues, including safety gear (subparagraph 2), safety measures and practices (subparagraph 3), providing heaters when the outside temperature is below 40 degrees Fahrenheit (subparagraph 4), air-conditioned cabs (subparagraph 5), and drinking water (subparagraph 6). Section L also addresses rest period guidelines (subparagraphs 7 & 8) and reinstatement of an employee who was unjustifiably disciplined (subparagraph 9). Neither of Hunt's CBAs has a table of contents or appendix. In contrast, Ray's CBAs contain a table of contents setting forth the various sections, and appendix C entitled, "Grievance of Disputes." Within appendix C are two subsections: "A. Arbitration of Employment Related Claims," and "B. Procedure for Arbitration of Disputes." Similar to Hunt's CBAs, Ray's CBAs contain an arbitration provision embedded in article XVI, entitled, "Holidays, Payment of Wages, Meal Periods, Rest Periods (Breaks), & Heat Illness Preventative Recovery Period." Although placed under the section dealing with breaks/rest periods, there is no reference to breaks/rest periods. The remaining sections of article XVI address holidays (Section A), payment of wages (Section B), a meal period (Section C), and a heat illness preventative recovery period (Section E). However, the final section, (Section F), is untitled and contains language not found in either of Hunt's CBAs. On Nov. 13, 2020, the superior court granted GSB's motion as to Ray (only as to his individual claims), but denied it as to Hunt on the grounds the arbitration provisions in his CBAs were not "'explicit, clear, and unmistakable.'" Acknowledging that the language in article XVI, section L, subparagraph 1(a), is a verbatim wording of the waiver found to be explicit, clear, and unmistakable in Cortez, the court distinguished the case based on the waiver's placement under article XVI, section L, entitled, "Sanitation, Safety and Rest Periods." According to the court, Hunt was not suing for "rest period violations or for any cause of action related to sanitation or safety." Also, it observed that the limitation in article V "undermines any interpretation that claims under Wage Order 16 and the Labor Code (as opposed to claims under the CBA) can be addressed under the procedures set forth in Article V it found that read in totality, a more reasonable interpretation of Article V is that it addresses disputes brought by the union." GSB appeals. It contends the superior court erred in denying the motion to compel arbitration as to Hunt's claims because it incorrectly applied the case law defining an "'explicit, clear, and unmistakable'" waiver of a judicial forum in an arbitration agreement and wrongly considered the headings in Hunt's CBAs to be dispositive. The Court of Appeals finds no error. First, it agrees with the superior court that a more reasonable interpretation of Article V is that it addresses disputes brought by the union. The reference to article V does not clarify the issue regarding arbitration because article V establishes a "Labor-Management Adjustment Board" to interpret and enforce the provisions in the Hunt's 2013 CBA and provides that any "dispute or grievance" arising therefrom "may be referred to arbitration." By its language, article V, section A, addresses disputes or grievances between GSB and the union representative on behalf of any employees which involve interpretation or enforcement of the CBAs. Section B, subparagraphs 2 through 5, prescribe the following steps: (1) a discussion between the union representative and the authorized representative of GSB; (2) a meeting between the union representative, GSB, and the labor relations representative of the employee's association (Engineering Contractors Association, Inc.); (3) referral of the dispute or grievance to the board for consideration and decision; and (4) decision by the joint chairmen of the board or arbitrator. Thus, while article V, section A, subparagraph 2, sets out an arbitration procedure, it does not mandate arbitration: "In the event the Labor-Management Adjustment Board does not reach a decision for reasons of its own, any dispute or grievance may be referred to arbitration by either or both parties." Moreover, it limits the arbitrator's power. Turning to Hunt's 2016 CBA, the Court of Appeals again agrees with the superior court that it contained "important additions, perhaps intended to cure the problems with the early CBA." The additional language in Hunt's 2016 CBA -- which may be interpreted as requiring arbitration of employees' statutory claims -- is hidden in the middle of the paragraph that begins by addressing disputes, complaints, or grievances brought by the union, and remains under article XVI, section L, concerning sanitation, safety, and rest periods. By burying the arbitration provision within article XVI, section L, the implication is that arbitration is required for those types of claims and not others such as the ones raised in the lawsuit. Contrary to GSB's assertion, the labeling and placement of an arbitration provision is relevant and important when assessing whether the language in a CBA clearly states the parties' intent to arbitrate statutory claims. After examining Hunt's 2013 CBA and Hunt's 2016 CBA, the Court of Appeals concludes that neither clearly and unmistakably mandates arbitration of his claims. For these reasons, the order denying the motion to compel arbitration is affirmed. The Respondent is awarded costs on appeal. A full-text copy of the Court's Sept. 14, 2022 Opinion is available at https://tinyurl.com/v4wu6ym9 from Leagle.com. Atkinson, Andelson, Loya, Ruud & Romo, Scott K. Dauscher -- sdauscher@aalrr.com -- Jon M. Setoguchi -- jsetoguchi@aalrr.com -- and David Kang -- david.kang@aalrr.com -- for the Defendant and Appellant. James Hawkins, APLC, James R. Hawkins -- info@jameshawkinsaplc.com -- Samantha A. Smith -- samantha@jameshawkinsaplc.com -- and Lance E. Dacre, for the Plaintiffs and Respondents. GOODTHINGS INCORPORATED: Dicks Files ADA Suit in S.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against Goodthings, Incorporated. The case is styled as Valerie Dicks, on behalf of herself and all others similarly situated v. Goodthings, Incorporated, Case No. 1:22-cv-07917-JLR (S.D.N.Y., Sept. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. GoodThings -- https://shopgoodthings.com/ -- is a multi-store, family-owned boutique retailer.[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 GOOGLE LLC: Stellman Sues Over Deceptive Price Optimization Program ------------------------------------------------------------------- Michael Stellman, individually and on behalf of all others similarly situated v. GOOGLE LLC and ALPHABET INC., Case No. 5:22-cv-05273-SVK (N.D. Cal., Sept. 15, 2022), is brought to seeks appropriate equitable relief, damages and suffered economic losses as a result of Google's unfair and deceptive Reserve Price Optimization program. Google is an advertising company that makes billions of dollars a year by deceptively using individuals' personal information to engage in targeted digital advertising. Google has extended its reach from search advertising to dominate the online advertising landscape for image-based ads on the web, called "display ads." In their complexity, the markets for display ads resemble the most complicated financial markets: publishers and advertisers trade display inventory through brokers on electronic exchanges and networks at lightning speed. Google is a company standing at the apex of power in media and advertising, earning revenue over $65 billion per quarter, or $712 million per day, almost all from advertising. Google's advertising apparatus extends across the "ad exchanges" and brokers through which display ads trade. Indeed, nearly all of today's online publishers (be they large or small) depend on one company--Google--as their middleman to sell their online display ad space in ad exchanges, i.e., the centralized electronic trading venues where display ads are bought and sold. Conversely, nearly every consumer goods company, e-commerce entity, and small business now depends on Google as their respective middleman to purchase display ads through exchanges in order to market their goods and services to consumers. In addition to representing both the buyers and the sellers of online display ads, Google also operates the largest exchange, AdX. Google increased its exchange fees by surreptitiously implementing a secret auction manipulation program known as "Reserve Price Optimization." This program operated to override publishers' exchange floor prices and deceptively increase the amount advertisers must pay for impressions on AdX. Like the other class members, Plaintiff dealt directly with Google in its capacity as display advertising broker, having placed online display and search advertisements using Google's services, says the complaint. The Plaintiff paid Google directly to broker the placement of his display advertisements on third-party websites. Google LLC is a technology company that provides internet-related services and products, including online advertising technologies and a search engine.[BN] The Plaintiff is represented by: Tina Wolfson, Esq. Robert Ahdoot, Esq. Theodore Maya, Esq. Carlynne A. Wagner, Esq. AHDOOT & WOLFSON, PC 10728 Lindbrook Drive Los Angeles, CA 90024 Phone: (310) 474-9111 Facsimile: (310) 474-8585 Email: twolfson@ahdootwolfson.com radhoot@ahdootwolfson.com tmaya@ahdootwolfson.com cwagner@ahdootwolfson.com GRAVITY DEFYER: Mosher-Clark Sues Over False Advertising -------------------------------------------------------- Cecelia Mosher-Clark, individually and on behalf of all others similarly situated v. GRAVITY DEFYER MEDICAL TECHNOLOGY CORPORATION, Case No. 4:22-cv-05288-LB (N.D. Cal., Sept. 16, 2022), is brought against the Defendant for the manufacture, marketing, and sale of shoes and sneakers sold under the brand name "Gravity Defyer" andusing VersoShock technology (the "Footwear") which it claims are "clinically proven" to provide significant pain relief, including neck, knee, back, ankle, and foot pain which is false and misleading. Since at least 2016, Defendant has advertised that the Footwear contains soles with VersoShock technology, which it claims are "clinically proven" to provide significant pain relief, including neck, knee, back, ankle, and foot pain. In reality though, the Footwear is not "clinically proven" to provide pain relief, including relief for knee pain, back pain, ankle pain, and foot pain, nor does it provide pain relief at all. As part of its marketing approach, Defendant makes extensive "clinically shown" or "clinically roven" claims about the pain-relieving properties of its Footwear. Defendant purports to back up its claims with a double-blind study conducted by the Olive View UCLA Medical Center. This study bears significant flaws and is unreliable, however, and Defendant's use of this study to bolster its claims about the Footwear is highly misleading. Had Defendant disclosed that the Footwear was not in fact "clinically proven" to provide extensive neck, back, knee, ankle, and foot pain relief, and that the Footwear did not in fact provide pain relief, Plaintiff and members of the Class would not have purchased the Footwear, or would have paid significantly less for the Footwear than they did. Plaintiff and members of the Class were accordingly injured by the price premium they paid for the Footwear due to Defendant's misrepresentation that the Footwear was clinically proven to provide extensive neck, knee, back, ankle, and foot pain relief, when in fact, the Footwear does not provide such pain relief at all, let alone that it is not "clinically proven" to do so, says the complaint. The Plaintiff purchased a pair of Gravity Defyer Pain Relief Women's G-Defy Mighty Walk Athletic Shoes, one of the Footwear products, for $135 from Amazon.com on April 2, 2021. The Defendant has manufactured, marketed, sold, and distributed footwear to consumers since 2011.[BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com GULF WINDS: Appeal Filed in Hauser Class Suit --------------------------------------------- An appeal from a lower tribunal ruling was filed in the lawsuit entitled Shelia Hauser, Plaintiff, v. Gulf Winds Credit Union, Defendant, Case No. 2022-CA-000012, in the Lower Court of Escambia County, Florida. The appellate case is captioned Shelia Hauser, on behalf of herself and all others similarly situated vs. Gulf Winds Credit Union, Case No. 22-2693, in the Florida First District Court of Appeal, filed on August 26, 2022. The case type is stated as Non-Final Civil Other Notice.[BN] H&K ENGINEERING: Ledet Sues to Recover Unpaid Overtime Wages ------------------------------------------------------------ Lance Ledet, individually and for others similarly situated v. H&K ENGINEERING, LLC and ORBITAL ENGINEERING INC, Case No. 2:22-cv-01324-NBF (W.D. Pa., Sept. 15, 2022), is brought to recover unpaid overtime wages and other damages from the Defendant under the Fair Labor Standards Act. The Defendants do not pay overtime to their hourly employees as required by the FLSA. Instead, the Defendants pay these workers the same hourly rate for all hours worked, including those hours worked in excess of 40 in a workweek. The Defendants did not pay their hourly workers a guaranteed salary. While working for the Defendants, the Plaintiff and other workers like him, did not receive overtime as required by the FLSA, says the complaint. The Plaintiff worked as a QA Field Technician for the Defendants from May 2020 through April 1, 2021. The Defendants provide engineering, procurement, and construction management services to the refining, chemical, and pulp and paper industries.[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 - and - Joshua P. Geist, Esq. GOODRICH & GEIST PC 3634 California Ave. Pittsburgh, PA 15212 Phone: 412-766-1455 Facsimile: 412-766-0300 Email: josh@goodrichandgeist.com H. N. FERNANDEZ: Dicks Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed H. N. Fernandez, Inc. The case is styled as Valerie Dicks, on behalf of herself and all others similarly situated v. H. N. Fernandez, Inc., Case No. 1:22-cv-07821 (S.D.N.Y., Sept. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. H. N. Fernandez, Inc. doing business as Cafe Du Monde -- https://shop.cafedumonde.com/ -- is an iconic New Orleans cafe known for café au laits, chicory coffee & beignets since 1862.[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 HARBOR MARINAS: Zinnamon Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Harbor Marinas, LLC. The case is styled as Warren Zinnamon, on behalf of himself and all others similarly situated v. Harbor Marinas, LLC, Case No. 1:22-cv-08000 (S.D.N.Y., Sept. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Safe Harbor -- https://shmarinas.com/ -- is the largest and most diversified marina owner and operator in the world.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com HEALTHMARKETS INSURANCE: Minor Files TCPA Suit in N.D. Texas ------------------------------------------------------------ A class action lawsuit has been filed against Healthmarkets Insurance Agency, Inc. The case is styled as Heather Lee Minor, individually, and on behalf of all others similarly situated v. Healthmarkets Insurance Agency, Inc., Case No. 4:22-cv-00830-P (N.D. Tex., Sept. 19, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. HealthMarkets Insurance Agency, Inc. -- https://www.healthmarkets.com/ -- is licensed as an insurance agency in all 50 states and DC.[BN] The Plaintiff is represented by: Stefan Louis Coleman, Esq. COLEMAN PLLC 66 West Flagler Street, Suite 900 Miami, FL 33131 Phone: (877) 333-9427 Email: law@stefancoleman.com - and - Avi Robert Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Phone: (305) 469-5881 Email: kaufman@kaufmanpa.com - and - Katherine Hendler Fayne, Esq. KATHERINE FAYNE LAW PLLC 6301 Gaston Avenue, Suite 1128 Dallas, TX 75214 Phone: (214) 770-1322 Email: katherine@katherinefaynelaw.com HEALTHWORKS AGENCY: Johnson Sues Over Unsolicited Telemarketing --------------------------------------------------------------- Virginia Johnson, Thomas Matthews, And Priscilla Guidry, on behalf of themselves and all others similarly situated v. HEALTHWORKS AGENCY, LLC, Case No. 1:22-cv-05025 (N.D. Ill., Sept. 15, 2022), is brought against the Defendant regarding the Defendant's violations of the Telephone Consumer Protection Act for unsolicited telemarketing calls made by or on behalf of Defendant. Prior to the calls at issue in this action, the Plaintiffs had not had any contact with Defendant nor used any of the Defendant's services. They have never consented in writing, or otherwise, to receive telemarketing calls from the Defendant. All of the unsolicited telemarketing calls at issue were made by the Defendant or on behalf of Defendant for the purposes of selling health insurance policies. The Defendant knowingly made (and continues to make) unsolicited telemarketing calls to the telephones of the Plaintiffs and other consumers without the prior express written consent of the call recipients. In making these calls, the Defendant not only invaded the personal privacy of the Plaintiff and members of the putative Class, but also intentionally and repeatedly violated the TCPA. Such calls are also harassing and a nuisance for the Plaintiffs and putative class members, says the complaint. The Plaintiffs received calls from the Defendant and/or one of the Defendant's agents on their cellular telephones multiple times. Healthworks Agency, LLC is a limited liability company organized under the laws of Illinois.[BN] The Plaintiffs are represented by: Yitzchak Kopel, Esq. BURSOR & FISHER, P.A 888 Seventh Ave. New York, NY 10019 Phone: (646) 837-7150 Facsimile: (212) 989-9163 Email: ykopel@bursor.com HEALTHY PAWS PET: Benanav Suit Transferred to E.D. Pennsylvania --------------------------------------------------------------- The case styled as Steven Benanav, Bryan Gage, Monica Kowalski, Lindsay Purvey, Stephanie Caughlin, Katherine Thomas, on behalf of themselves and all others similarly situated v. Healthy Paws Pet Insurance LLC, Case No. 2:20-cv-00421 was transferred from the U.S. District Court for Western District of Washington, to the U.S. District Court for Eastern District of Pennsylvania on Sept. 13, 2022. The District Court Clerk assigned Case No. 2:22-mc-00052-WB to the proceeding. The nature of suit is stated as Other Contract for Motion to Compel. Healthy Paws -- https://www.healthypawspetinsurance.com/ -- offers accident and illness pet insurance policies with smartphone-based, form-free claims submissions.[BN] The Plaintiffs are represented by: Kenneth J. Grunfeld, Esq. GOLOMB SPIRT GRUNFELD, P.C. 1835 Market Street, Suite 2900 Philadelphia, PA 19103 Phone: (215) 985-9177 Fax: (215) 985-4169 Email: kgrunfeld@GolombLegal.com HILCORP SAN JUAN: White River Suit Removed to D. New Mexico ----------------------------------------------------------- The case styled as White River Royalties, LLC, on behalf of itself and a class of similarly situated royalty owners v. Hilcorp San Juan, L.P., Case No. D-117-CV-22-00162 was removed from the First Judicial District Court, to the U.S. District Court for District of New Mexico on Sept. 19, 2022. The District Court Clerk assigned Case No. 1:22-cv-00692-KK-LF to the proceeding. The nature of suit is stated as Other Contract. Hilcorp San Juan, L.P. -- https://www.hilcorp.com/ -- provides crude oil and natural gas exploration and production services.[BN] The Plaintiff is represented by: Douglas A. Baker, Esq. Justin D. Rodriguez, Esq. ATKINSON, BAKER & RODRIGUEZ, PC 201 Third Street, NW, Suite 1850 Albuquerque, NM 87102 Phone: (505) 764-8111 Fax: (505) 764-8374 Email: dbaker@abrfirm.com jrodriguez@abrfirm.com The Defendant is represented by: John C. Anderson, Esq. Nathan Robert Jurgensen, Esq. HOLLAND & HART LLP P.O. Box 2208 110 N. Guadalupe Street, Suite 1 Santa Fe, NM 87504-2208 Phone: (505) 988-4421 Email: jcanderson@hollandhart.com nrjurgensen@hollandhart.com - and - Robert J. Sutphin, Esq. HOLLAND & HART, LLP PO Box 2208 Santa Fe, NM 87504-2208 Phone: (505) 988-4421 Fax: (505) 983-6043 Email: rsutphin@hollandhart.com HUDSON VALLEY: Denial of Arbitration Bid in Zachman Suit Vacated ---------------------------------------------------------------- In the case, NICOLE ZACHMAN, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellee v. HUDSON VALLEY FEDERAL CREDIT UNION, Defendant-Appellant, Docket No. 21-999-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit vacates the district court's denial of the Defendant's motion to compel arbitration. The U.S. District Court for the Southern District of New York (Briccetti, J.) issued a judgment denying HVCU's motion to compel arbitration of Zachman's putative class action claims for breach of contract, breach of the covenant of good faith and fair dealing, and claims under New York law and the federal Electronic Fund Transfer Act. HVCU is a not-for-profit credit cooperative and financial institution that provides checking account services and other financial products to its members. Zachman is an active member of HVCU, where she maintains a checking account and debit card. On Feb. 21, 2020, Zachman filed a class-action complaint, alleging that HVCU's practice of collecting overdraft or insufficient funds fees on accounts that were not actually overdrawn violated New York General Business Law Section 349 and the Electronic Fund Transfer Act, 15 U.S.C. Section 1693 et seq., and its implementing regulation, known as Regulation E, 12 C.F.R. Section 1005. In response, HVCU moved to dismiss the complaint, which the district court construed as a motion to compel arbitration. The district court ordered limited arbitration-related discovery for the purpose of deciding the motion. Joyce Keehan, HVCU's senior compliance officer, testified that the modified Account Agreement containing the arbitration provision and class action waiver was published to the HVCU website. HVCU customers can access the agreement via the HVCU website in two ways: 1) a user may run a search in the website's search bar which will bring up the Account Disclosures webpage with a hyperlink to the account agreement; or 2) a user can reach the Account Disclosures webpage by selecting the "Resources" tab on the right-side of an options menu on HVCU's website. Keehan also testified that users can obtain a physical copy by either requesting a hard copy be mailed to them or going to a brick-and-mortar HVCU branch. Ms. Keehan testified that she was not aware whether HVCU mailed or emailed Zachman a copy of the revised Account Agreement containing the mandatory arbitration and class action waiver provisions. HVCU did not post a notice of the added arbitration and class action waiver provisions in its quarterly newsletters or in members' electronic statements, and it did not otherwise provide written notice of those provisions to Zachman. Additionally, HVCU did not implement a "banner" notification on the webpage, provide a summary of any changes made to the Account Agreement on the webpage where the agreement is hyperlinked, or otherwise indicate any changes had been made to the Account Agreement. Mark Timmerman, HVCU's vice president of legal, corporate compliance and risk, explained in an affidavit that in October 2019 HVCU converted to a new online banking system. To use HVCU's online banking services, users must first register their accounts online. Registration requires that users first click through and agree to various HVCU disclosures including an "Internet Banking Disclosure and Agreement." The Internet Banking Agreement informs members that they are bound by the terms and conditions of, among other things, the Account Agreement and provides URLs to access the relevant agreements, which include a "Mandatory Arbitration" provision and "Class Waiver" provision. Timmerman attested that Zachman first signed into the new online banking system on Oct. 23, 2019. A user audit report reflects that Zachman registered and accepted the disclosures, including the Internet Banking Agreement, on Oct. 23, 2019. Ms. Zachman asserts that she was not aware HVCU revised the 2012 Account Agreement to add mandatory arbitration or class action waiver provisions. She also attested that she never searched for or viewed the Account Agreement on the HVCU website. Ms. Zachman alleged that HVCU wrongly assessed and collected overdraft fees and insufficient funds fees on checking accounts that were not actually overdrawn. As relevant to this appeal, HVCU moved to compel arbitration on the basis that Zachman was bound by a mandatory arbitration clause and class action waiver provision in the Truth-in-Savings Standard Disclosure and Account Agreement. Zachman contends that when she opened her account with HVCU in 2012, the Account Agreement did not contain any mandatory arbitration clauses or class action waiver provisions, and that because she was never notified of the addition of those provisions to the Account Agreement, she is not bound by them. HVCU argued below that Zachman was on inquiry notice of the modified Account Agreement. It contended that when Zachman signed up for online banking with HVCU in 2019, she agreed to an Internet Banking Agreement that incorporated by reference the revised Account Agreement containing the arbitration and class action waiver provisions; and that HVCU published the modified Account Agreement on the HVCU website which Zachman used for online banking. The district court agreed with Zachman, finding that she was not on actual or inquiry notice of the terms of the mandatory arbitration clause or class action waiver provisions. It denied HVCU's motion to compel arbitration. HVCU appealed. The Second Circuit concludes that the record is insufficiently developed on the issue of whether the parties entered into an agreement to arbitrate and, as a consequence, it cannot determine the matter of arbitrability "as a matter of law." The record is insufficiently developed to determine whether Zachman was placed on inquiry notice of the amended Account Agreement containing the mandatory arbitration and class action provisions when she began to use HVCU's internet banking site. Therefore, the district court's outright denial of the motion to compel arbitration, which had the effect of determining that Zachman is not bound by the amended Account Agreement's arbitration clause, was premature; the record was not sufficiently developed to indicate whether Zachman knowingly agreed to the arbitration clause. Given the lingering issues as to the matter of arbitrability, the district court should have required further evidence or proceeded to trial on that issue. Therefore, the Second Circuit remands for the district court to consider further evidence or, if necessary, hold a trial. The Second Circuit further concludes that the record does not contain screenshots of the webpage(s) used to register HVCU customers for online banking. Therefore, it cannot engage in this analysis, and it was error for the district court to engage in the inquiry notice analysis based on the copy of the Internet Banking Agreement, which does not depict the content and design of the webpage as seen by users signing up for online banking. On remand, the district court should consider the design and content of the Internet Banking Agreement as it was presented to users in determining whether Zachman assented to its terms. And it should assess whether the Account Agreements are clearly identified and available to the users based on the Second Circuit's precedents. For the reasons given, the Second Circuit concludes that the district court erred in engaging in the inquiry notice analysis, which requires an examination of the "design and content" of the webpage, without reviewing the actual screenshots of the web-based contract. Therefore, it vacates the district court's judgment and remands for further proceedings consistent with its Opinion. A full-text copy of the Court's Sept. 14, 2022 Opinion is available at https://tinyurl.com/3myu73ky from Leagle.com. JAMES R. BRANIT -- Branit@LitchfieldCavo.com -- Litchfield Cavo LLP, (Brian S. Gitnik -- gitnik@litchfieldcavo.com -- Keith L. Gibson -- keith.gibson@practus.com -- on the brief), New York, N.Y., for Defendant-Appellant Hudson Valley Federal Credit Union. SOPHIA GOREN GOLD -- admin@kalielgold.com -- Kaliel Gold PLLC, Washington, D.C., for Plaintiff-Appellee Nicole Zachman. SUE J. NAM -- snam@reesellp.com -- Reese LLP, (on the brief), New York, N.Y., for Plaintiff-Appellee Nicole Zachman. KEYSTONE RV: 9th Cir. Affirms Summary Judgment Order in Cole Suit ----------------------------------------------------------------- In the case, JUDITH COLE, a single person, et al., Plaintiffs-Appellants v. KEYSTONE RV COMPANY, FKA Keystone RV Company LLC, Defendant-Appellee, Case No. 21-35701 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the district court's order granting summary judgment to Keystone and denial of class certification. Plaintiffs Judith Cole, Louise Michael, and David Johnson appeal the district court's order granting summary judgment to Keystone on their Washington Consumer Protection Act ("CPA") claims and the court's denial of class certification pursuant to Federal Rule of Civil Procedure 23. The Ninth Circuit reviews de novo a district court's decision granting summary judgment. The Plaintiffs' claims arise under Washington law. As to their CPA Claims, the Plaintiffs rely on the theory that the Defendant engaged in an unfair or deceptive act or practice because the Owner's Manual available on its website did not adequately describe the health hazards associated with using Keystone RVs. The Washington Court of Appeals recently addressed similar arguments in Axon v. Freedom R.V., Inc., No. 38068-III, 2022 WL 1316283 (Wash. Ct. App. May 3, 2022). There, the court rejected two Keystone RV purchasers' Washington CPA arguments that the Keystone RV Owner's Manual--the same Owner's Manual that is at issue in this case--is deceptive by minimizing the risks of full-time residential use. To prevail in a private CPA claim under Washington law, the plaintiff must prove: "(1) an unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) affecting the public interest; (4) injury to a person's business or property; and (5) causation." The Ninth Circuit agrees with the Washington Court of Appeals in Axon that the Owner's Manual and website provide consumers with sufficient information addressing the hazards of mold, formaldehyde, and prolonged occupancy. The Plaintiffs' theory premised on the sufficiency of the warnings contained in the Owner's Manual does not satisfy the CPA's first element. The Ninth Circuit does not opine on omission-based CPA theories separate from the content of the Owner's Manual that the Plaintiffs advanced for the first time during oral argument on appeal. Nor does it decide whether Washington courts would consider information "easily discoverable" by a reasonable consumer for purposes of the CPA where the information is published online in an Owner's Manual. The Plaintiffs did not raise these issues or on appeal; rather, their CPA arguments in their opposition to summary judgment and motion for reconsideration focused on the adequacy of the warnings contained in the Owner's Manual, and their briefing on appeal did not challenge the district court's conclusion that "because the fact were posted on a public website, they were easily discoverable." Thus, it affirms the district court's grant of summary judgment on the Plaintiffs' CPA claims. Regarding their claims under the Washington Auto Dealer Practices Act ("ADPA"), the Plaintiffs argue that their allegations, which the district court dismissed as time barred, sufficiently establish a per se violation of the CPA. Violations of the ADPA are deemed to affect the public interest and constitute a violation of the CPA. The Ninth Circuit finds that this argument nonetheless fails because a claim under the ADPA requires showing the Defendant affirmatively made a "statement or representation with regard to the sale, lease, or financing of a vehicle which is false, deceptive, or misleading." The Plaintiffs' ADPA claims fail because they were premised on the same allegations underlying their CPA claims. As explained, those allegations did not establish that Keystone made any affirmative statements that were false, deceptive, or misleading. Because the Ninth Circuit holds that summary judgment was properly granted, there can be no class action, so it need not decide the issues on appeal related to the district court's orders denying class certification and granting the Defendant's Rule 702 motion. The Plaintiffs also argue that the district court abused its discretion by partially denying their motions to compel and motion for reconsideration. The Ninth Circuit sees no abuse of discretion in these discovery rulings. A full-text copy of the Court's Sept. 14, 2022 Memorandum is available at https://tinyurl.com/8nvarcn9 from Leagle.com. MAJOR LEAGUE: Agrees to Pay $185M Settlement in Labor Class Suit ----------------------------------------------------------------- Paul Kasabian at bleacherreport.com reports that Major League Baseball has agreed to pay $185 million as part of the settlement reached in the Senne v. MLB class-action lawsuit, ESPN's Jeff Passan reported. Passan added that "thousands" of minor league players dating back to 2009 will be eligible to join the class. Players will see more than $120 million of the $185 million agreed upon in the settlement, according to Passan. The Athletic's Evan Drellich reported on May 10 that the two sides reached a settlement agreement as a June 1 trial date soon approached. Alex Rahmanan of Law in Sport explained the basis for the suit's filing in a Sept. 2021 article: "Thousands of current and former minor leaguers are suing MLB and all 30 MLB clubs for allegedly failing to pay them a fair wage, overtime pay, and compensation for other required activities," Rahmanan wrote in part. "In this class action suit, the minor leaguers accuse MLB and the clubs of violating the federal Fair Labor Standards Act (FLSA) and other state wage and hour laws, and are seeking damages in the form of years of backpay." The United States Supreme Court previously denied MLB's request to dismiss the lawsuit in 2020. Major League Baseball has come under fire in recent years due to a combination of long-standing pay and working condition concerns. Many minor leaguers went on the record about a litany of problems. Emily Waldon of The Athletic did an exhaustive breakdown of minor leaguers' issues in March 2019, with a host of players speaking about the grind. However, many were off-the-record for fear of being blackballed. "You talk about this, you're canned," a High-A ball player on an AL West team said to The Athletic. "Nobody wants to have you in your organization anymore. You can't talk about it. If you come up in arms about fair wage or just being able to put food on the table for yourself, you'll get released. I know 100 guys that would wanna talk to you about this, but they won't." Many current and ex-minor leaguers have provided their takes on the experience. "People don't understand the mental strain that comes along with that-that you don't know how much money you're going to have at the end of each month and not knowing how you're going to make ends meet," ex-Los Angeles Angels minor leaguer Shane Kelso told ESPN's Joon Lee in Sept. 2021. "I was a late-rounder. I didn't sign for a lot of money. The vast majority of players are in my position." Brittany Ghiroli of The Athletic also did a deep dive on the rampant problems in the minor leagues. "I definitely know of some players who have spent nights in their car where the dates didn't line up with their road trip and AirBnbs," a Pirates' minor leaguer told Ghiroli. "When you think about it, it's crazy. You are a foul tip away from getting called up (in Triple-A)." Some good news emerged in Nov. 2021 after MLB owners unanimously agreed to provide housing for approximately 90 percent of minor league players, per Steve Gardner of USA Today. As noted by Drellich and Daniel Kaplan of The Athletic, a federal magistrate judge ruled against MLB in March, ruling that minor leaguers are MLB employees throughout the year and were owed damages. Minor leaguers did see a bump in pay last year, with the Associated Press (h/t ESPN.com) providing the details. "Players at rookie and short-season levels will see their minimum weekly pay raise from $290 to $400, and players at Class A will go from $290 to $500. Double-A will jump from $350 to $600 and Triple-A from $502 to $700." However, the non-profit More Than Baseball group did a three-year study, released to The Athletic, that advocated for a minimum $35,000 salary that would "bring players above the federal poverty line and put them in line with living wage standards." At any rate, marks a massive win for minor leaguers, and Advocates for Minor Leaguers released a statement through Twitter on the matter: Per Passan, the advocacy group is speaking with the Senate Judiciary Committee on MLB's antitrust exemption. [GN] MERCK & CO: Gardasil Class Action Conference Set on October 11 -------------------------------------------------------------- Ronald V. Miller, Jr., Esq., of Miller & Zois, LLC, disclosed that the law firm's lawyers are helping victims who want to bring a Gardasil HVP vaccine lawsuit throughout the United States. Gardasil is a vaccine intended to prevent human papillomavirus (HPV) which can sometimes lead to cervical cancer in women. Gardasil was developed by the embattled pharmaceutical company Merck & Co. Merck obtained FDA approval for Gardasil back in 2006 based on deceptive research and clinical trials which misrepresented the efficacy of the vaccine while concealing its safety risks and side effects. Merck then launched an aggressive and highly misleading marketing campaign to include millions of parents vaccinating their pre-teen daughters with Gardasil. Filing a Gardasil lawsuit is not an anti-vax statement. A Gardasil vaccine lawsuit is a statement that this specific vaccine that we all assumed was safe might not be. You can get a free consultation for your Gardasil claim online. Gardasil Lawsuit - September 2022 Update The judge in the newly formed Gardasil class action lawsuit will hold his first initial conference with lawyers for all parties on October 11, 2022. The primary focus at this initial conference will be the appointment of lawyers to serve on the plaintiffs' leadership committee (also known as a "steering committee"). The committee will make important decisions on behalf of all the plaintiffs in the MDL class action. Other topics that will be discussed at the conference will include a proposed discovery plan and the creation of master pleading forms. Gardasil Lawsuit - August 2022 Update We now have a Gardasil class action lawsuit. The panel that oversees federal multidistrict litigation agreed to form a new class action MDL for consolidated handling of all Gardasil HPV product liability lawsuits in federal courts. The Western District of North Carolina was selected as the venue for the new MDL (In re: Gardasil Prod. Liab. Lit., MDL No. 3036). The panel agreed to the MDL consolidation despite strong objections by defendant Merck who argued that the MDL would conflict with federal vaccine laws and promote vaccine hesitancy. The case has been assigned to Judge Robert Conrad Jr. Parenthetically, Judge Conrad played point guard for Clemson over 40 years ago. Gardasil Lawsuit - July 2022 Update Lawyers for a large group of plaintiffs filed a motion asking the JPML to create a new MDL Gardasil HPV vaccine class action lawsuit, seeking consolidation of all current and future HPV lawsuits alleging health complications from Merck's Gardasil HPV vaccine. A total of 34 pending Gardasil lawsuits in 25 different federal districts were identified in the motion. The volume of Gardasil product liability cases is expected to grow very rapidly over the next year. The plaintiffs are claiming that the Gardasil HPV vaccine caused them to develop auto immune and/or neurologic disorders because Merck failed to properly research it before pushing it on the market. New Gardasil HPV Research Leading to a Lawsuit New research has shown that Gardasil can induce and increase the risk of auto-immune diseases, and a host of other serious health complications including Postural Orthostatic Tachycardia Syndrome, Neuropathy, and Fibromyalgia. Gardasil has also been linked to premature ovarian failure and infertility. (Our lawyers are getting a lot of Gardasil infertility lawsuit inquiries.) What is even more unsettling, however, is that there is also evidence to suggest that rather than preventing cervical cancer, the Gardasil HPV vaccine may increase the risk of cervical cancer. Our firm is currently seeking new Gardasil HPV vaccine lawsuit cases. If you had the Gardasil HPV vaccine and subsequently developed serious side effects, call us today at 800-553-8082 or get a free consultation online. Gardasil HPV Vaccine HPV is a common virus that is easily passed through skin contact. HPV is the most common STD, and it is estimated that 2/3 of the adult population will have an HPV infection during their lifetime. Most HPV cases are totally harmless. But a very small percentage of HPV cases in women can potentially contribute to the development of cervical cancer. So a safe drug that can fight HPV and cervical cancer would be meaningful. Merck fast-tracked approval for Gardasil from the FDA in 2006. Gardasil's approval came right on the heels of Merck's Vioxx disaster which cost the company billions in losses. Gardasil was viewed as Merck's next big blockbuster drug that was going to pull the company out of its financial hole. Unfortunately, however, Merck apparently learned very little from the Vioxx disaster because they repeated many of the exact same mistakes. About Human Papillomavirus (HPV) HPV stands for human papillomavirus. HPV is an exceedingly common type of virus that lives in the skin. Over 200 different strains of the HPV virus have been medically identified. About 2/3 of these strains of HPV are basically benign and have zero symptoms. A handful of HPV strains are known to cause growth in the skin or mucous membrane. These growths are commonly called "warts." HPV is highly transmissible via skin-to-skin contact, including sexual or other types of intimate contact such as kissing. Around 40 of the known HPV strains are transmitted primarily through sexual contact. Genital HPV is so ubiquitous that experts estimate that over 75% of the sexually active adult population will have genital HPV at some point in their life. Most people with genital HPV never have any physical symptoms at all and the infection simply goes away on its own without the individual even realizing they were infected. 2 of the 40 genital HPV strains are known to cause genital warts. Most HPV infections occur unnoticed and resolve on their own without any long-term consequences. However, there are a few strains of HPV that do not clear up on their own and can eventually lead to abnormal growths that could develop into cancer. These strains of HPV are called "high-risk" HPV. Out of the 40 types of genital HPV, only 12 strains are classified as high-risk and potentially can lead to cancer. Two of these 12 high-risk HPV types account for over 80% of all cancer cases. High-risk HPV is primarily a concern for women because it can develop into cervical cancer. These types of HPV can gradually cause the formation of abnormal growths on the cervical tissue. If these growths are not promptly removed they will often develop into cervical cancer. Pap smear examinations are intended to identify these abnormal growths and remove them before they lead to cervical cancer. Although cervical cancer is the most common, HPV can also lead to other types of cancer including anal and penis. Merck Brings Gardasil to Market with Fraudulent Marketing Campaign Leading up to and after the 2006 approval of Gardasil, Merck launched a massive marketing campaign to manufacture demand for its HPV vaccine. Prior to Gardasil, there was little or no demand for an HPV vaccine, and HPV was never viewed as a pressing public health emergency. To ensure the financial success of its new vaccine, Merk preceded the release of Gardasil with expensive HPV "disease awareness" marketing. This marketing campaign greatly exaggerated the health risks of HPV. After Gardasil was approved in 2006, Merck expanded its propaganda campaign with advertising which falsely overstated the effectiveness of the Gardasil vaccine. Merck then targeted marketing at parents of adolescent girls scaring and guilting them into inoculating with Gardasil. Merck's Gardasil marketing blitz was the largest and most expensive such effort in the history of the company. Gardasil Can Induce or Increase the Risk of Auto-Immune Diseases In order to get Gardasil approved by the FDA, Merck allegedly manipulated its clinical trials to conceal risks and falsely enhance the safety profile of the vaccine. Now we are begging to realize why Merck did this. In the years since Gardasil was released, medical research revealed that Gardasil could induce autoimmune disorders in a certain percentage of patients. Various scientific studies have linked Gardasil to the following autoimmune diseases: Guillain-Barre syndrome Orthostatic Intolerance Small Fiber Neuropathy Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) Systemic Lupus Erythematosus Multiple Sclerosis Autoimmune Pancreatitis Autoimmune Hepatitis Gardasil has also been connected to a host of other health conditions that are closely linked to autoimmune conditions. These include fibromyalgia, dysautonomia, chronic fatigue syndrome, chronic regional pain syndrome, encephalitis syndrome, autonomic dysfunction, and joint pain. Gardasil Lawsuit The emerging scientific evidence establishing the connection between Gardasil HPV vaccines and autoimmune health conditions has led to a growing wave of Gardasil HPV lawsuits against Merck. The first few Gardasil lawsuits started getting filed in the second half of 2020. The volume of Gardasil cases increased slowly but steadily over the course of 2021. But more victims are filing a Gardasil vaccine lawsuit as awareness of the issues with Gardasil emerges from both victims and Gardasil HPV vaccine lawyers are starting to see the potential size of these claims. The plaintiffs in the Gardasil lawsuits are women (and some men) who received Gardasil vaccinations and subsequently developed autoimmune diseases and other serious health conditions linked to Gardasil such as postural orthostatic tachycardia syndrome ("POTS"). The HPV Gardasil vaccine side effects lawsuits allege that Merck fraudulently concealed evidence about the health risks of the vaccine while at the same time misrepresenting that Gardasil could prevent cervical cancer. The tort claims being asserted against Merck in the Gardasil lawsuits include traditional product liability tort claims such as failure to warn, manufacturing defect, and negligence. They also include fraud claims that are not commonly seen in product liability cases. Gardasil Lawsuit and the National Vaccine Injury Compensation Program A Gardasil lawsuit in the District of Nevada was recently dismissed - mostly without prejudice, which means it can be refiled. The judge found that the plaintiff's claims were "partially" preempted under the National Vaccine Injury Compensation Program. The Vaccine Act is a law that says vaccine manufacturers cannot be sued for certain types of claims, including design defect claims and some failure to warn claims. The purpose of the Act is to make it hard to sue vaccine manufacturers even when they screw up to keep vaccine prices stable and to encourage manufacturers to make vaccines. Claims for negligence are allowed. In Flores v. Merck & Co., a Nevada schoolteacher filed a Gardasil lawsuit alleging she has never been the same since taking the HPV vaccine at age 14. Specifically, she believes she developed postural orthostatic tachycardia syndrome ("POTS"), as a result of receiving Merck's HPV vaccine. POTS is an injury that is a definite focus of this litigation. Merck filed a motion to dismiss. The judge found that the plaintiff did not plead in her lawsuit a viable negligence claim. The court ruled her Gardasil lawsuit was really just a design defect claim that was barred under the Vaccine Act. So the plaintiff's failure to warn claim, as worded in her Gardasil vaccine lawsuit, was also held to be barred under the Vaccine Act. Despite the dismissal of all of the plaintiff's claims, this Gardasil lawsuit is not over. The plaintiff's primary claims were dismissed "without prejudice," meaning that the plaintiff and her lawyers get a chance to "try again" by filing an amended complaint restating the claims. The amended complaint will need to reshape the negligence claim so as to make it clear that it is not based on any alleged defect design of the Gardasil vaccine. The failure to warn claim also needs to be reshaped so as to clarify the allegations that Merck failed to warn the plaintiff's medical providers about specific risks associated with the Gardasil vaccine. Plaintiff's Gardasil lawyer has already filed a new lawsuit. Merck has filed an 18-page motion to dismiss the claim. The motion argues, among other things, that the Vaccine Act "explicitly protects vaccine manufacturers from liability 'for damages arising from a vaccine-related injury that is 'associated with the administration of a vaccine due to the 'drugmaker's failure to provide direct warnings….'" The point of all this is that Gardasil lawyers have some work to do to get these cases past the Vaccine Act. But with the new Gardasil vaccine side effects class action lawsuit becoming an MDL, these concerns have been alleviated to some degree. Still, it will take refinement of how these Gardasil lawsuits are pled to avoid preemption under the Vaccine Act. This case will be closely watched as the Gardasil side effects litigation progresses. Contact an HPV Vaccine Lawyer Our firm is currently seeking new Gardasil HPV vaccine lawsuits for individuals who received the Gardasil vaccine and subsequently developed an autoimmune disorder or other serious health conditions that have been linked to Gardasil. Contact us online today or call 800-553-8082 to see if you qualify for a Gardasil HPV vaccine lawsuit. [GN] META PLATFORM: Suit Tackles Mental Health Effects of Social Media ----------------------------------------------------------------- Top Class Actions reports that did you know that heavy use of the most popular social media platforms -- Facebook and Instagram -- has been linked to detrimental mental health effects including behaviors such as self-harm, suicidal ideation, attempted suicide, and suicide; and eating disorders like anorexia, bulimia and binge eating particularly in young women and teenage girls? Recently, powerful internet giant, Meta Platform, Inc. -- owner of Facebook and Instagram -- has come under fire for putting profits ahead of their users' mental health and well-being. Meta-Facebook and Instagram- as well as several other top sharing social media platforms have been accused of creating a toxic environment for young users, increasing engagement at the cost of their mental health and sometimes even their lives. Young adults and teens, particularly women and girls, who use Facebook, Instagram, and other major social media sites reported feeling bad about themselves after using the platforms to company researchers in 2019. Researchers told higher-ups about the mental health problems affecting the rapidly growing teen base of a popular photo-sharing site at the time, but the reports were minimized, according to The Wall Street Journal. In 2021, a former employee of the largest social media platform Facebook, Frances Haugen, blew the whistle on the company's troubling practices, providing documents to regulators and law enforcement and also appearing on 60 Minutes to detail concerns she has about how social media platforms keep users engaged. Now, social media companies face mounting evidence that they eschewed safety precautions for young users in the name of increased time spent on their platforms to generate profit from advertising on their sites. Do You Qualify? The link between social media and mental health has been revealed to regulators and the public. The companies that profit off of those using their platforms may have known about these problems but failed to make social media safe for teens and young adults. If you are a young adult or adolescent that uses social media and suffers from any of the following mental health conditions, you may qualify to participate in a lawsuit investigation: Eating disorders like anorexia, bulimia, binge eating, and others Self-harm, such as cutting Suicidal ideation Attempted suicide Suicide Fill out the form on this page for more information. Social Media and Mental Health According to the Pew Research Center, more than 70 percent of Americans use social media. Social media use allows people to connect with others and entertain themselves, but research has shown that the endless scrolling has taken a toll on users' mental health. In addition to grilling the CEOs of major social media companies, the government has noted its concerns about the effect of these platforms on young users. "Business models are often built around maximizing user engagement as opposed to safeguarding users' health and ensuring that users engage with one another in safe and healthy ways," states a 2021 report by the US Surgeon General on Youth Mental Health. The report goes on to explain: "This translates to technology companies focusing on maximizing time spent, not time well spent." Why is Social Media Toxic? Social media platforms are powerful tools that allow individuals to connect almost immediately with others, including relatives, friends, and even celebrities. Heavy use of social media has been linked to negative effects on mental health, warns MedicalNewsToday. According to research conducted between 2015 and 2020, heavy use of social media, up to nine hours a day as reported by some users, can trigger a sense of isolation, depression, and anxiety. Rather than making users feel more connected, research has found that social media use can actually distance them from friends and family. Users report feelings of missing out and a compulsion to check their social media feeds at the cost of in-person relationships. Teen users of social media themselves have reported high rates of cyberbullying, up to 50 percent according to one study. These platforms can amplify toxic patterns, spreading abuse or destructive rumors far beyond someone's immediate social circle, potentially leading to lasting harm. Further, social media users, particularly young women and teen girls, report feeling worse about their bodies after viewing photo-sharing apps. Hours of viewing the highly edited and virtually impossible to obtain bodies of influencers may trigger eating disorders, self harm, suicidal ideation and other mental health issues for users. In fact, the rate of teen suicide attempts has risen along with social media use between 2009 and 2017 in the US, found one study. Social Media Safety: Who is Responsible? While individuals and parents can take steps to limit social media use, the companies that run these powerful platforms designed special machine learning products and features to increase viewing time and shares. Furthermore, they continued to deploy the products even when they were aware of the harm it was causing young users, especially teens, turning a blind eye, while exacerbating the problem. Teens have reported to these companies that they have felt "addicted" to these photo sharing and other social media apps, disliking the amount of time they spend on them, but unable to stop. In the face of these mounting reports, instead of dismantling their products and features, or even warning users of them, social media companies added fuel to the fire by allowing machine learning algorithms to go on "learning" its users and foist harmful content on vulnerable teens, all in an effort to increase the time they would spend on the platforms. Join a Social Media and Mental Health Mass Injury Lawsuit Investigation If you or your child is a heavy social media user and suffers from eating disorders like anorexia, bulimia, binge eating, and others; self-harm; suicidal ideation; attempted suicide; or if they died by suicide, you may be able to join legal action against these companies. If you or your loved one suffered a mental health condition from social media use, you may qualify to participate in a lawsuit investigation. [GN] MGM GRAND: Shortchanges Guests by Not Dispensing Change, Suit Says ------------------------------------------------------------------ fox17.com reports that MGM Resorts is facing a lawsuit alleging that it's shortchanging guests millions of dollars by not dispensing change when vouchers are redeemed at its casinos' kiosks. The lawsuit was filed in U.S. District Court for the Southern District of Mississippi on behalf of New Orleans resident Leane Scherer and seeks class action status. Scherer stayed at the Beau Rivage Resort and Casino in Biloxi, Mississippi this past June, according to the suit. She played a penny slot machine, cashed out with a voucher for $18.19 and went to redeem it at a kiosk. Scherer received $18 in cash and a ticket for 19 cents. The suit claims she was unaware that the ticket had to be redeemed at the casino cage, and she left without redeeming the ticket, which expired 30 days later. Many casino redemption machines stopped offering exact change during the COVID-19 pandemic due to a coin shortage. Still, the suit says Scherer received exact change from kiosks during her visits to other casinos on the same day as her trip to Beau Rivage. The lawsuit claims MGM did not have any signage at its machines indicating they did not pay exact change and failed to provide players with reasonable notice that vouchers could only be redeemed in person at the casino cages. "For the last few years, defendants have essentially been keeping the change off of hundreds of thousands of gaming vouchers, essentially robbing their customers a few cents at a time, on millions of transactions," the complaint states. The suit seeks to represent anyone who visited an MGM casino in the last 10 years and did not receive change from a redemption kiosk. [GN] MONEY STORE: Mazzei Appeals Atty. Fee Bid Ruling to 6th Cir. ------------------------------------------------------------ The Money Store, et al., filed an appeal from a court ruling entered in the lawsuit entitled JOSEPH MAZZEI, INDIVIDUALLY AND ON BEHALF OF THE FEE-SPLIT CLASS, Plaintiffs v. THE MONEY STORE, ET AL., Defendants, Case No. 01-cv-5694, in the U.S. District Court for the Southern District of New York (New York City). In 2001, Joseph Mazzei initiated a putative class action against Defendants The Money Store, TMS Mortgage Inc., and HomEq Servicing Corp., advancing claims relating to fees that the Defendants, who were in the mortgage lending business, charged to their borrowers. One of the principal claims in the action was that the Defendants had charged Mazzei and those similarly situated for purported "attorney's fees" in connection with their mortgages, when in reality those fees were allegedly being shared improperly with Fidelity National Foreclosure Solutions, the Defendants' legal outsourcer, in violation of the Defendants' contractual commitments. In January 2013, the Court certified a nationwide class of individuals, who paid purported attorney's fees to the Defendants that allegedly included amounts that were paid to Fidelity (the "Fee-Split Class"). Mazzei and the Fee-Split Class's claims went to trial in December 2014 and the jury returned a verdict on their fee-split claims in favor of the Defendants. That verdict was upheld following post-trial motions before the Court and an appeal to the Court of Appeals for the Second Circuit. As reported in the Class Action Reporter on June 24, 2022, Judge John G. Koeltl of the Southern District of New York issued a Memorandum Opinion and Order denying (a) the Plaintiffs' motion for attorney's fees and expenses; and (b) the Defendants' request for attorney's fees pursuant to Rule 37(a) of the Federal Rules of Civil Procedure. On June 23, 2022, the Plaintiff filed a motion for reconsideration. On August 5, 2022, the Court denied the Plaintiffs' motion for reconsideration. The appellate case is captioned as Mazzei v. The Money Store, Case No. 22-1959, in the United States Court of Appeals for the Second Circuit, filed on Sept. 6, 2022.[BN] Plaintiff-Appellant Joseph Mazzei, on behalf of himself and all others similarly situated, is represented by: Paul Stuart Grobman, Esq. 555 5th Avenue New York, NY 10017 Telephone: (212) 983-5880 Defendants-Appellees The Money Store; TMS Mortgage, Incorporated; and Homeq Servicing Corporation, are represented by: Thomas J. Kavaler, Esq. CAHILL GORDON & REINDEL LLP 32 Old Slip New York, NY 10005 Telephone: (212) 701-3406 - and - Edward Thomas McDermott, Esq. MCCARTER & ENGLISH, LLP 245 Park Avenue New York, NY 10167 Telephone: (212) 609-6903 - and - Amy Pritchard Williams, Esq. TROUTMAN SANDERS LLP 301 South College Street Charlotte, NC 28202 Telephone: (704) 998-4102 - and - Anthony Zaccaria, Esq. EMBLEMHEALTH 55 Water Street New York, NY 10041 Telephone: (917) 815-2170 NATIONAL BANK: Ontario Court Certifies Mutual Funds Class Action ---------------------------------------------------------------- The Superior Court of Justice of Ontario has certified a class action which permits a defined group of investors (the "Class") to pursue claims against National Bank Investments Inc. and Natcan Trust Company ("Defendants"). It is alleged that the Defendants paid excessive, inflated, and/or unearned trailing commissions to Discount Brokers out of the assets of the National Bank and NBI Private Portfolio Mutual Fund trusts. The class action claims monetary damages on behalf of the Class. The allegations made in the class action have not been proven and are contested by the Defendants. If you wish to participate in the class action, DO NOTHING. If you do not wish to participate in the class action, be bound by or receive any benefits from it, you must opt out by sending the opt-out form to RicePoint Administration Inc. by December 23, 2022. To obtain a copy of the opt-out form or for other important information regarding the class action: Visit https://www.siskinds.com/class-action/mutual-fund-trailing-commissions/ Call toll-free 1 800 461 6166 ext 4399 (North America) Call 416 594 4399 (Outside North America) The publication of this notice was authorized by the Superior Court of Justice of the Province of Ontario. [GN] NELNET SERVICING: Cordaro Files Suit in D. Nebraska --------------------------------------------------- A class action lawsuit has been filed against Nelnet Servicing, LLC. The case is styled as Christopher Cordaro, individually, and on Behalf of All Others Similarly Situated v. Nelnet Servicing, LLC, Case No. 4:22-cv-03207 (D. Neb., Sept. 15, 2022). The nature of suit is stated as Other P.I. for Personal Injury. Nelnet -- https://nelnetinc.com/ -- is the largest operating businesses engage in student loan servicing, tuition payment processing and school information systems, and communications.[BN] The Plaintiff is represented by: Joel B. Strauss, Esq. KAPLAN, FOX LAW FIRM 850 Third Avenue, 14th Floor New York, NY 10022 Phone: (212) 687-1980 Email: jstrauss@kaplanfox.com - and - Laurence D. King, Esq. KAPLAN, FOX LAW FIRM - OAKLAND 1999 Harrison Street, Suite 1560 Oakland, CA 94612 Phone: (415) 772-4700 Email: lking@kaplanfox.com NONNI'S FOODS: Misleads Consumers as to Lemon Content in Cookies ---------------------------------------------------------------- Abraham Jewett at topclassactions.com reports that Nonni's Foods misleads consumers about the amount of lemon in its Nonni's Limone Biscotti cookies, a new class action lawsuit alleges. Plaintiff Nancy Goldstein claims Nonni's uses misleading labeling and imagery on the packaging for its biscotti cookies to allegedly deceive consumers into believing they contain more lemon than they actually do. "The representations are false, deceptive and misleading because the Product contains a de minimis amount of lemon," the Nonni's class action states. Consumers prefer to purchase food products that get their taste from a "characterizing food ingredient" rather than an "added flavoring ingredient," the Nonni's class action alleges. Nonni's class action claims Limone Biscotti cookies 'devoid of any lemon ingredients' Nonni's biscotti cookies - despite representations allegedly to the contrary - actually contain a "de minimis amount of lemon" as proven by the ingredient list being "devoid of any lemon ingredients," the Nonni's class action claims. "According to flavor expert Bob Holmes, if the Product was providing 'all the flavor depth of the lemon itself,' the ingredients would include lemon juice, lemon extract or lemon zest oil," the lawsuit states. Goldstein claims Nonni's is guilty of fraud, negligent misrepresentation and unjust enrichment and in violation of the Magnuson Moss Warranty Act and the Florida Deceptive and Unfair Trade Practices Act, among other things. She demands a jury trial and requests declaratory and injunctive relief along with an award of monetary, statutory and/or punitive damages for herself and all class members. Goldstein wants to represent a Florida class and multistate consumer fraud subclass of individuals who have purchased Nonni's Limone Biscotti cookies. A separate class action lawsuit was filed against Nonni's in 2011 over claims the company misrepresented its biscotti cookies as all natural, despite them allegedly containing a synthetic ingredient. The case was dismissed in 2014. The plaintiff is represented by Spencer Sheehan of Sheehan & Associates, P.C., and Will Wright of The Wright Law Office, P.A. The Nonni's biscotti cookies class action lawsuit is Goldstein v. Nonni's Foods LLC, Case No. 9:22-cv-81462, in the U.S. District Court for the Southern District of Florida. [GN] NOTIFIES CO-DIAGNOSTICS: Lead Plaintiff Appointment Due Oct. 17 --------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC reminds investors that a class action lawsuit has been filed against the following publicly-traded companies. You can review a copy of the Complaints by visiting the links below or you may contact Peretz Bronstein, Esq. or his Law Clerk and Client Relations Manager, Yael Nathanson of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss, you can request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Notifies Co-Diagnostics, Inc. (NASDAQ:CODX) Class Period: May 12, 2022 - August 11, 2022 Deadline: October 17, 2022 For more info: www.bgandg.com/codx The Complaint alleges that defendants made false and/or misleading statements, as well as failed to disclose material adverse facts to the market. On August 11, 2022, Co-Dx shocked investors when the Company issued a press release and filed a report with the U.S. Securities and Exchange Commission that disclosed its financial results for the quarter ended June 30, 2022. The Company disclosed revenue of $5.0 million for the quarter ended June 30, 2022, down from $27.4 million during the prior year period, a decline of almost 82%. The Company primarily attributed the decrease to lower demand of the Logix Smart™ COVID-19 Test. On this news, Co-Dx's common stock price fell $1.98 per share, or 30.65%, to close at $4.48 per share on August 12, 2022. MINISO Group Holding Limited(NYSE:MNSO) Class Period: MINISO securities pursuant and/or traceable to the registration statement and related prospectus (collectively, the "Registration Statement") issued in connection with MINISO's October 2020 initial public offering (the "IPO"). Deadline: October 17, 2022 For more info: www.bgandg.com/mnso The Complaint alleges that the Registration Statement featured false and/or misleading statements and/or failed to disclose that: (1) defendants and other undisclosed related parties owned and controlled a much larger amount of MINISO stores than previously stated; (2) as a result, MINISO concealed its true costs; (3) the Company did not represent its true business model; (4) defendants, including the Company and its Chairman, engaged in planned unusual and unclear transactions; (5) as a result of at least one of these transactions, the Company is at risk of breaching contracts with Chinese authorities; (6) the Company would imminently and drastically drop its franchise fees; and (7) as a result, Defendants' statements about the Company's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. [GN] ONETOUCHPOINT INC: Faces Class Action Suits Over Data Breach ------------------------------------------------------------ topclassactions.com reports that if you are a California resident who received a letter informing you that your personal information was compromised in the OneTouchPoint data breach that occurred in April 2022, you may have a legal claim. In April 2022, OneTouchPoint, which provides printing and mailing services for health insurance providers, experienced a data breach that compromised the personally identifiable information of more than one million people. Sensitive information such as customer names, addresses, birth dates, service description, diagnosis codes, member identification and health assessment information was potentially exposed to unauthorized third-parties. Several class action lawsuits have already been filed by consumers in other states whose information was exposed in the data breach. Now, attorneys are reaching out to California residents who may have been affected by the breach. Joining a OneTouchPoint data breach class action lawsuit may be a way to gain compensation under California consumer protection and privacy laws and hold OneTouchPoint accountable if they failed to protect consumer information. OneTouchPoint clients include a range of healthcare providers. If you visited one of the healthcare providers who was a client of OneTouchPoint or if you were an employee of one of OneTouchPoint's clients, your information may have been compromised. Affected healthcare providers include, but are not limited to: Anthem Affiliated Covered Entities Common Ground Healthcare Cooperative Banner Medicare Advantage Dual Blue Cross Blue Shield of Arizona MediSun, Inc. d/b/a Blue Cross Blue Shield of Arizona Advantage Health Choice Arizona, Inc Blue Cross Blue Shield of Massachusetts Blue Cross Blue Shield of Rhode Island Blue Cross Blue Shield of South Carolina Commercial BMC HealthNet Plan / Well Sense Health Plan CareFirst Advantage Commonwealth Care Alliance ElderPlan/HomeFirst EmblemHealth Plan, Inc. Florida Blue Geisinger Health Alliance Plan of Michigan HAP Midwest Health Plan Health First Health New England Health Plan of San Mateo HealthPartners Highmark Health Humana Kaiser Permanente KS Plan Administrators, LLC MVP Health Care Pacific Source Premera Blue Cross Medicare Advantage Plans Prime Time Health Plan Point32Health Regence BlueCross BlueShield of Oregon Regence BlueCross BlueShield of Utah Regence BlueShield Regence BlueShield of Idaho, Inc. UPMC Health Plan Matrix Medical Network Individuals affected by the data breach have likely already received a notice that their data was compromised in the OneTouchPoint data breach. Consumers may have received the notice directly from OneTouchPoint, or they may have received a notice from their healthcare provider. Effects of data breaches The fact that you have not experienced any damages resulting from the OneTouchPoint data breach does not mean your information could not be misused in the future. It may be several years before hackers sell personal data on the dark web to those who aim to perpetrate crimes including identity theft, fraud, or ransom. Data breaches can cause serious financial injury. If a thief makes fraudulent purchases using a victim's personal information, a victim may be on the hook for thousands of dollars in fraudulent purchases. Even if a bank does not hold a victim responsible for such purchases, a victim's credit may be affected. Can you sue for a data breach in California? Yes. The California Consumer Privacy Act (CCPA), as well as other California consumer protection laws, allow California residents to bring a cause of action against businesses that suffer data breaches. The CCPA provides for statutory damages between $100 and $750 dollars per consumer per incident. Consumers may also receive actual damages (in lieu of statutory damages if they are greater), injunctive or declaratory relief, and any other relief the court deems proper. [GN] OPTAVIA LLC: Class Settlement in Douglass Suit Gets Prelim. Nod --------------------------------------------------------------- In the case, BLAIR DOUGLASS, Plaintiff v. OPTAVIA LLC, Defendant, Case No. 2:22-CV-00594-CCW (W.D. Pa.), Judge Christy Criswell Wiegand of the U.S. District Court for the Western District of Pennsylvania grants the Plaintiff's Motion to Certify the Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement. On April 21, 2022, Mr. Douglass, who is blind, filed a class-action complaint against Optavia, alleging that it "failed to make its digital properties accessible to blind individuals" in violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Sections 12181-12189. Specifically, Mr. Douglass alleges that he attempted to access Optavia's online store using a screen reader but was unable to because Optavia's online store is incompatible with screen-access software. He brought a single claim under the ADA, seeking injunctive, declaratory, and monetary relief including attorneys' fees. Mr. Douglass' suit came after he first contacted Optavia in June 2021 about its online store's accessibility issues. Although the parties did not reach a resolution, they apparently agreed that Mr. Douglass filing suit would be the best path forward. Shortly thereafter, on May 25, 2022, Mr. Douglass filed the instant Motion, seeking preliminary approval of a class-action settlement and conditional certification of a class for settlement purposes, which Optavia does not oppose. Under the proposed settlement, Judge Weigand finds that the class members will avoid the risks associated with trial and obtain comprehensive injunctive relief in line with comparable cases, all without giving up the right to any monetary relief that they might otherwise recover. There being "no obvious deficiencies" and the settlement "fall[ing within the range of reason," she finds for the purposes of preliminary approval that the proposed settlement appears to be "fair, reasonable, and adequate." Turning to provisional certification of the settlement class, Mr. Douglass seeks to certify "a national class" under Rule 23(b)(2), including all Blind or Visually Disabled individuals who use screen reader auxiliary aids to navigate digital content and who have accessed, attempted to access, or been deterred from attempting to access, or who may access, attempt to access, or be deterred from attempting to access, the Website from the United States. Judge Weigand finds that, for the purposes of provisional certification, the proposed class meets the criteria set forth in Rule 23(a) and Rule 23(b)(2). She holds that (i) Optavia's website is available throughout the United States, where there are approximately 2 million people who are blind and another 8.1 million people who have difficulty seeing; (ii) the commonality and typicality requirements are met because Mr. Douglass, who is blind, and each class member have the same interest in ensuring the accessibility of Optavia's digital platforms based on the same legal theory under the ADA; and (iii) Mr. Douglass and his counsel are free from conflicts of interest and competent and qualified to represent the class, such that they are adequate representatives. Next, Judge Weigand opines that Optavia failed to maintain its digital platforms in a manner that made them compatible with screen-access software -- grounds that apply generally to all members of the class. The injunctive relief sought will remedy the deficiencies in Optavia's digital platforms, making it appropriate for the class as a whole. Thus, the proposed class appears to satisfy Rule 23(b)(2) in addition to rule 23(a) and provisional certification in therefore appropriate. Finally, Judge Weigand considers the parties' plan for the dissemination of notice. She has reviewed (1) the proposed notice form; (2) the proposed notice plan, including its provisions ensuring that blind individuals have access to the plan using screen readers; and (c) the timeline for disseminating notice, for filing applications for attorneys' fees and costs, for filing the incentive award application, and for filing objections. Upon this review, she finds each of these proposals to be reasonable and appropriate under the applicable Rule 23(e) standard. Accordingly, she grants the parties' request and approves their proposed notices and notice plan generally. For the foregoing reasons, Judge Weigand grants the instant Motion and enters an Order (1) preliminarily approving the parties' proposed settlement; (2) preliminarily certifying a class under Rule 23(a) and (b)(2) for settlement purposes only, pursuant to Rule 23(e); (3) approving the parties' proposed form of notice; and (4) setting a fairness hearing. A full-text copy of the Court's Sept. 14, 2022 Amended Memorandum Opinion is available at https://tinyurl.com/5dmtktpw from Leagle.com. ORGANIC NATURAL: Miller Files TCPA Suit in M.D. Florida ------------------------------------------------------- A class action lawsuit has been filed against Organic Natural Healing LLC. The case is styled as Veronica Miller, individually and on behalf of all others similarly situated v. Organic Natural Healing LLC doing business as: Your CBD Store, Case No. 2:22-cv-00588 (M.D. Fla., Sept. 15, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Organic Natural Healing LLC doing business as Your CBD Store -- https://www.getsunmed.com/ -- is the largest hemp retailer in the US and the exclusive home of award-winning, hemp-derived SUNMED products.[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 PETCO HEALTH: Court Grants Bid to Compel Arbitration in Jordan Suit ------------------------------------------------------------------- In the case, NOAH R. JORDAN, on behalf of himself and all others similarly situated, Plaintiff v. PETCO HEALTH AND WELLNESS COMPANY, INC. trading and doing business as PETCO, Defendant, Civil Action No. 2:21-cv-1858 (W.D. Pa.), Judge William S. Stickman, IV, of the U.S. District Court for the Western District of Pennsylvania: (i) denies Jordan's Motion for Remand; and (ii) grants Petco's Motion to Compel Individual Arbitration and Stay Litigation. Mr. Jordan filed a putative class action Complaint asserting that Petco overcharged his purchase of dog food because it failed to account for coupon-based discounts when it calculated the sales tax. His Complaint asserts claims for conversion and misappropriation (Count I), breach of constructive trust or agency (Count II), injunction (Count III), unjust enrichment (Count IV), violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Count V), and violation of the Pennsylvania Fair Credit Extension Uniformity Act (Count VI). (Id.). Before the Court are Jordon's Motion for Remand and Petco's Motion to Compel Individual Arbitration and Stay Litigation. Before the Court are Jordon's Motion for Remand and Petco's Motion to Compel Individual Arbitration and Stay Litigation. On May 11, 2022, the Court sua sponte issued an order staying the case pending the decision of the United States Court of Appeals for the Third Circuit in Lisowski v. WalMart Stores, Inc., No 21-2501, 2022 WL 2763698 (3d Cir. July 15, 2022), as that case raised similar claims and presented similar issues with respect to whether the Tax Injunction Act ("TIA"), 28 U.S.C. Section 1341, mandates remand to state court. The Third Circuit issued its decision in Lisowski on July 15, 2022, and the parties submitted notices clarifying their respective positions. In his Motion to Remand, Jordan argues that the case should be remanded on two grounds. First, he contends that TIA requires remand because it deprives the Court of the ability to "enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." Next, he argues that broader factors of comity summarized in Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010) warrant remand. The Court stayed the case pending the outcome of the appeal in Lisowski. There, the Third Circuit affirmed the district court's determination that the TIA was not implicated by the plaintiff's claims that sales tax was improperly assessed on a non-taxable dietary supplement and, therefore, remand was not required. In so ruling, the Third Circuit aptly held that "Lisowski's claims rest solely on Walmart's allegedly improper collection of a charge that it was not authorized to take. And the mere potential for Walmart to eventually raise a tax-based defense did not strip the District Court of jurisdiction." The Third Circuit also rejected the plaintiff's generalized comity-related arguments in favor of remand: "It is well established that federal courts have a 'virtually unflagging obligation to exercise the jurisdiction given them.'" Thus, it held that the district court was within its discretion in declining to remand to state court on comity grounds, even if the case includes considerations relating to state taxation. Judge Stickman recognizes that the decision in Lisowski was designated as non-precedential. It is, nevertheless, persuasive when faced with the same issue in a substantially similar case. He will adopt and rely upon the persuasive jurisprudence enunciated in Lisowski, and reject Jordan's arguments in favor of remand. He says, Jordan's attempts to distinguish this case are unavailing. It is, with respect to both the TIA issue and the general request for comity-based remand, substantially similar to the facts and issues in Lisowski. Jordan's claims "rest solely on Petco's allegedly improper collection of a charge that it was not authorized to take. And the mere potential for Petco to eventually raise a tax-based defense does not strip the District Court of jurisdiction." Nor are there any other special considerations of state law raised in this case that would warrant the Court to decline to exercise its jurisdiction. Federal courts frequently encounter and apply issues of state law, including novel issues, when exercising their diversity jurisdiction. Judge Stickman will, therefore, follow the guidance set forth in Lisowski and deny the Motion to Remand. In its Motion to Compel Arbitration, Petco moves to compel arbitration based on an arbitration clause in the Pals Rewards Program to which Jordon twice indicated agreement and which provided him with the coupons that form the basis of his overcharge claims. Jordan argues that the Motion to Compel arbitration should be denied on multiple grounds. His arguments can be distilled into three general theories: first, that the Court should remand and allow the state court to decide the motion; second, that the conduct alleged in the Complaint falls outside the scope of the arbitration clause; and third, that the arbitration agreement is unconscionable. First, Judge Stickman finds no merit to Jordan's argument. The Court has jurisdiction over the case and it may address the issues presented in the Motion to Compel arbitration. Next, he says Jordan agreed to be bound by the terms when he accepted the Petco Terms of Use. He holds that in light of the broad language of the arbitration clause, coupled with the strong federal presumption in favor of arbitration, there is no question that the claims asserted by Jordan fall within the scope of the arbitration clause. Last, the Arbitration Agreement is not unconscionable and will be enforced. Because Jordan has failed to demonstrate procedural unconscionability, it is unnecessary for the Court to determine whether the arbitration clause in the Terms of Use of the Petco Pals Rewards Program are substantively unconscionable. Jordan has failed to demonstrate unconscionability. As such, the arbitration clause will stand and the parties will be compelled to arbitrate. The Third Circuit follows the plain language of the FAA and has unequivocally held that district courts are obligated to grant the stay until arbitration concludes. Judge Stickamn, therefore, stays, rather than dismisses, the action pending arbitration. For the reasons set forth, Judge Stickman denies Jordan's Motion for Remand. He grants Petco's Motion to Compel Arbitration and Stay Litigation. The case is stayed pending the arbitration proceedings. An Order of Court will follow. A full-text copy of the Court's Sept. 14, 2022 Memorandum Opinion is available at https://tinyurl.com/3e2eu58k from Leagle.com. PNC FINANCIAL: Agrees to Face Class Action Over 401(k) Plan Fees ---------------------------------------------------------------- Jacklyn Wille, writing for Bloomberg Law, reports that PNC Financial Services Group Inc. agreed to litigate a challenge to the fees in its $5.7 billion 401(k) plan as a class action covering more than 65,000 plan participants and beneficiaries, a filing in Pittsburgh federal court shows. The stipulation, filed on Sept. 13, comes nearly six months after Judge Christy Criswell Wiegand allowed the plan participants to move forward with claims of fiduciary breach based on PNC's alleged failure to negotiate a better deal on 401(k) recordkeeping fees. Wiegand, who had previously dismissed the case in its entirety, said the participants' amended complaint included a detailed table comparing the plan's fees. [GN] PROCTER & GAMBLE: Palmer Sues Over False and Misleading Labeling ---------------------------------------------------------------- Stephanie Palmer, individually and on behalf of all others similarly situated v. The Procter & Gamble Company, Case No. 1:22-cv-05036 (N.D. Ill., Sept. 15, 2022), seeks damages and an injunction to stop the Defendant's false and misleading labeling and marketing practices with regards to its women's hygiene products represented as "Pure Cotton*" under the Tampax brand ("Product"). By describing the Product as "Pure Cotton*," consumers will expect all of its components to be made from cotton Despite the front label promise the Product was "Pure Cotton," the non-core ingredients are not pure because they are significantly altered from their original or natural state. Polypropylene is a synthetic resin built up by the polymerization of propylene. Polyester is a synthetic fiber made from petroleum. Polyester is not a "pure" ingredient because it is created through a chemical reaction between ethylene glycol and more terephthalic acid. While glycerin can be sourced from vegetable oils, its extensive use by the personal care industry means it must be obtained as a byproduct in biodiesel production. The non-cotton ingredients are not pure, and according to the European Union, titanium dioxide is potentially harmful to consumers. Only a small asterisk next to "cotton" refers to a smaller statement indicating the entire Product is not "pure," only that it "Contains a 100% Organic Cotton Core." The Defendant makes other representations and omissions which are false and misleading. The Defendant sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers. As a result of the false and misleading representations, the Product is sold at a premium price, approximately no less than $11.49 for 24 tampons, excluding tax and sales, higher than similar products, represented in a non-misleading way, and higher than it would be sold for absent the misleading representations and omissions, says the complaint. The Plaintiff purchased the Product on one or more occasions. The Procter & Gamble Company manufactures, markets, and sells women's hygiene products represented as "Pure Cotton" under the Tampax brand and operates the Tampax brand of women's personal care products.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd., Ste. 409 Great Neck NY 11021-3104 Phone: (516) 268-7080 Email: spencer@spencersheehan.com PURPLE NON STOP: Rangel Sues Over Unpaid Minimum, Overtime Wages ---------------------------------------------------------------- Aaron Rangel, on behalf of himself and others v. PURPLE NON STOP, INC.; MAJID MOHAMMAD LOO; and DOES 1 to 25, Inclusive, Case No. 22STCV30242 (Cal. Super. Ct., Los Angeles Cty., Sept. 15, 2022), is brought against the Defendant for their failure to pay minimum and overtime wages in violation of the California Labor Code. The Defendants did not provide Plaintiff and other similarly situated aggrieved employees with the minimum wages to which they were entitled for work performed "off the clock" and as such did compensate Plaintiff and others for all hours worked, pursuant to California Labor Code. The Defendants had a policy of disproportionately rounding down hours worked to the detriment of employees in that they were not paid for all hours worked, including the minimum wages. Moreover, and to the extent that Plaintiff and others had to work through their meal periods while "off the clock", that would also constitute a minimum wage violation, says the complaint. The Plaintiff was a delivery driver for the Defendants starting on 2019 or 2020. PURPLE NON STOP, INC. is and was a California corporation, doing business in Los Angeles County, California.[BN] The Plaintiff is represented by: Harout Messrelian, Esq. MESSRELIAN LAW INC. 500 N. Central Ave., Suite 840 Glendale, CA 91203 Phone: (818) 484-6531 Facsimile: (818)956-1983 Email: hm@messrelianlaw.com RBP CHEMICAL: King Sues Over Unpaid Overtime Wages -------------------------------------------------- William King, on behalf of himself and all others similarly situated v. RBP CHEMICAL TECHNOLOGY, INC., Case No. 2:22-cv-01064-SCD (E.D. Wis., Sept. 14, 2022), is brought pursuant to the Fair Labor Standards Act of 1938 and the Wisconsin's Wage Payment and Collection Laws for purposes of obtaining relief under the FLSA and WWPCL for unpaid overtime compensation, liquidated damages, costs, attorneys' fees, declaratory and/or injunctive relief, and/or any such other relief the Court may deem appropriate. The Defendant operated an unlawful compensation system that deprived and failed to compensate the Plaintiff and all other current and former employees for all hours worked and work performed each workweek, including at an overtime rate of pay for each hour worked in excess of 40 hours in a workweek, by shaving time (via electronic timeclock rounding) from Plaintiff's weekly timesheets for pre-shift hours worked and/or work performed, to the detriment of said employees and to the benefit of Defendant; failing to compensate the Plaintiff for daily rest breaks and/or rest periods of short duration that lasted less than 20 minutes in duration; failing to compensate the Plaintiff for daily meal periods during which they were not completely relieved of duty or free from work for at least 30 consecutive minutes; and failing to include all forms of non-discretionary compensation, such as monetary bonuses, incentives, awards, and/or other rewards and payments, in said employees' regular rates of pay for overtime calculation purposes, all in violation of the FLSA and WWPCL, says the complaint. The Plaintiff was hired by the Defendant as an hourly-paid, non-exempt employee working at the Defendant's Milwaukee, Wisconsin location. The Defendant is a chemical producer and supplier.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Phone: (262) 780-1953 Fax: (262) 565-6469 Email: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com SARAYA USA: Scott Sues Over False and Deceptive Marketing --------------------------------------------------------- Laquisha Scott, on behalf of herself and all others similarly situated v. SARAYA USA, Inc., Case No. 5:22-cv-05232-SVK (N.D. Cal., Sept. 13, 2022), is brought seeking challenge the Defendant's false and deceptive practices in the marketing and sale of several of its products, which are marketed as monk fruit sweetened items. Monk fruit, also known as Luo Han Guo, is a premium fruit which consumers value given its nutritional values, lack of impact on blood sugar, antioxidant levels, and more. Specifically, Defendant has marketed the Products as "Sweetened with Monk Fruit" or "Monk Fruit Sweetened" (together, the "Monk Fruit Representations"), representing to consumers that its Products are entirely, or at the very least predominantly, sweetened with monk fruit. Despite the Monk Fruit Representations, and unbeknownst to consumers, the Products are predominantly sweetened with erythritol. Erythritol is a highly processed sugar alcohol which is a less premium sweetener than monk fruit. Erythritol is also known to cause a host of problems for consumers, including being disruptive to gut health. The Plaintiff and other consumers purchased the Products and paid a premium price based upon their reliance on the Monk Fruit Representations. Had the Plaintiff and other consumers been aware that the Monk Fruit Representations were false, they would not have purchased the Products or would have paid significantly less for them. Accordingly, the Plaintiff and Class members have been injured by Defendant's deceptive business practices, says the complaint. The Plaintiff purchased the Lakanto No Sugar Added Keto Granola Cinnamon Almond Crunch Product from a Grocery Outlet store in San Jose, California. The Defendant operates "Lakanto", the nation's leading brand of products marketed as being sweetened with monk fruit.[BN] The Plaintiff is represented by: Robert Abiri, Esq. CUSTODIO & DUBEY, LLP 445 S. Figueroa Street, Suite 2520 Los Angeles, CA 90071 Phone: (213) 593-9095 Facsimile: (213) 785-2899 Email: abiri@cd-lawyers.com - and – Joshua Nassir, Esq. Benjamin Heikali, Esq. Ruhandy Glezakos, Esq. TREEHOUSE LAW, LLP 10250 Constellation Blvd., Suite 100 Los Angeles, CA 90067 Phone: (310) 751-5948 Email: jnassir@treehouselaw.com bheikali@treehouselaw.com rglezakos@treehouselaw.com SATELLITE HEALTHCARE: Sued Over Unpaid Minimum, Overtime Wages -------------------------------------------------------------- Maria Carralez, on behalf of herself and all others similarly situated employees v. SATELLITE HEALTHCARE, INC. corporation; and DOES 1-100, inclusive, Case No. 2:22-cv-01613-KJM-DB (E.D. Cal., Sept. 14, 2022), is brought for violations of the California Labor Code, Fair Labor Standards Act, and the Business and Professions Code as a result of the Defendant's unfair business practices by failing to properly pay all minimum and overtime wages due, failing to provide compliant meal and rest breaks, and failing to properly compensate employees for statutorily required sick leave. Throughout the Plaintiff's employment Satellite has either (a) failed to include these non-discretionary bonuses, commissions, and other items of compensation when calculating Plaintiff's and its non-exempt employees' regular rate of pay for purposes of overtime, or (b) miscalculated Plaintiff's and its non-exempt employees' regular rate of pay for purposes of overtime. The Plaintiff and Satellite's other non-exempt California employees were also not properly paid for all hours worked, including overtime. Specifically, because of issues with Satellite's timekeeping practices, Plaintiff and Satellite's other non-exempt California employees were routinely credited for less hours than they actually worked. The Plaintiff and Satellite's other non-exempt California employees were also not consistently authorized or permitted to take meal and rest breaks as required by California law. Satellite required Plaintiff and its other non-exempt California employees to work through meal and rest breaks due to understaffing and work demands, says the complaint. The Plaintiff was hired by Satellite in August 2019 as a non-exempt employee. Satellite Healthcare, Inc. is a California corporation which does business in California and throughout the United States.[BN] The Plaintiff is represented by: Robert J Wassermann, Esq. Nicholas F Scardigli, Esq. Vladimir J Kozina, Esq. MAYALL HURLEY P.C. 2453 Grand Canal Boulevard Stockton, CA 95207-8253 Phone: (209) 477-3833 Facsimile: (209) 473-4818 Website: www.mayallaw.com Email: rwassermann@mayallaw.com nscardigli@mayallaw.com vjkozina@mayallaw.com SCOOT EDUCATION: McCrary Sues Over Unpaid Overtime Wages -------------------------------------------------------- Michael James McCrary, an individual, on behalf of himself, all aggrieved employees, and the State of California as a Private Attorneys General v. SCOOT EDUCATION, INC., a Delaware corporation, and DOES 1-50, inclusive, Case No. 22STCV29832 (Cal. Super. Ct., Los Angeles Cty., Sept. 13, 2022), is brought against the Defendant who has been engaged in many unlawful employment practices which resulted in underpayment for hours worked each pay period. The Defendant has had a consistent policy and/or practice of: failing to pay for all hours worked, including overtime hours worked; failing to pay wages due upon termination; failing to provide rest breaks; failing to provide uninterrupted meal breaks and second meal breaks; failing to reimburse for required business expenses; and failing to provide accurate wage statements and maintain accurate payroll records. Defendant is therefore liable for civil penalties under the Cal. Labor Code, including the Private Attorney General Act, says the complaint. The Plaintiff is a former hourly paid, non-exempt employee of the Defendant, who worked for Defendant until October of 2021. The Defendant is a corporation which provides substitute teachers and educators to education facilities throughout California.[BN] The Plaintiff is represented by: Nazo Koulloukian, Esq. KOUL LAW FIRM 3435 Wilshire Blvd., Suite 1710 Los Angeles, CA 90010 Phone: (213) 761-5484 Facsimile: (818) 561-393 Email: nazo@koull aw.com SEED TO STEM: Jones Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Seed to Stem, LLC. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. Seed to Stem, LLC, Case No. 1:22-cv-07865-JGK (S.D.N.Y., Sept. 14, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Seed to Stem -- https://www.shopseedtostem.com/ -- is a carefully curated lifestyle and plant boutique centrally located in Worcester, Massachusetts.[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 SEMA4 HOLDINGS: Faces Helo Suit Over Share Price Decline -------------------------------------------------------- NABIL HELO, individually and on behalf of all others similarly situated, Plaintiff v. SEMA4 HOLDINGS CORP., ERIC SCHADT, KATHERINE STUELAND, ISAAC RO, and RICHARD MIAO, Defendants, Case No. 3:22-cv-01131 (D. Conn., Sept. 7, 2022) is a class action on behalf of the Plaintiff and all persons and entities that purchased or otherwise acquired Sema4 securities between March 14, 2022 and August 15, 2022, inclusive, pursuing claims against the Defendants under the Securities Exchange Act of 1934. On August 15, 2022, after the market closed, Sema4 announced changes to its research and development leadership team, including that Defendant Schadt was stepping down from his roles as President and Chief R&D Officer. The Company also disclosed that it was eliminating approximately 13% of its workforce as part of a series of restructuring and corporate realignments. During the related conference call, Sema4 revealed that it had "reversed $30.1 million of revenue this quarter related to prior periods," in connection with negotiations with "one of [Sema4's] larger commercial payors regarding the potential recoupment of payments for Sema4 carrier screening services rendered from 2018 to early 2022." On this news, Sema4's stock allegedly fell $0.80, or 33.3%, to close at $1.60 per share on August 16, 2022, on unusually heavy trading volume. Throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that there was a significant risk that Sema4 would reverse a material amount of previously recognized revenue that it could not recoup from third party payors; (2) that the Company was experiencing declining selling prices for its reproductive health segment; (3) that, as a result of the foregoing, Sema4's financial results would be adversely affected; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis, says the suit. 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, the suit alleges. Sema4 Holdings Corp. is a health company that uses artificial intelligence to enable personalized medicine.[BN] The Plaintiff is represented by: David A. Slossberg, Esq. Kristen L. Zaerhinger, Esq. HURWITZ, SAGARIN, SLOSSBERG & KNUFF, LLC 147 North Broad Street Milford, CT 06460 Telephone: (203) 877-8000 Facsimile: (203) 878-9800 E-mail: DSlossberg@hssklaw.com KZaehringer@hssklaw.com - and - Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 SHALOM HOME CARE: Mendoza Sues Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Jose Mendoza, individually and on behalf of all others similarly situated v. SHALOM HOME CARE, INC., Case No. 1:22-cv-00128 (W.D. Tex., Sept. 15, 2022), is brought against the Defendant under the Fair Labor Standards Act as a result of the Defendant's violation the FLSA by failing to pay its hourly-paid home care workers at one and one-half times their regular rates of pay for all hours worked in excess of forty hours within a workweek. The Plaintiff has actually worked between 46 and 48 hours almost every week, if not every week, since March 2020. Between March 16, 2020, and May 31, 2021, the Defendant routinely and systematically paid the Plaintiff for five to seven hours fewer per week than he actually worked and reported working via the Defendant's timekeeping system. When the Plaintiff asked about his unpaid overtime premium, Shalom's administrative staff told the Plaintiff that Shalom simply did not pay overtime. The Defendant has knowingly, willfully, or with reckless disregard carried out its illegal pattern or practice of failing to pay overtime compensation to Plaintiffs, says the complaint. The Plaintiff has been employed by the Defendant as a home care provider caring for a single patient throughout his employment with the Defendant from December 2016 through the present. Shalom Home Care, Inc. is a home care company that employs individuals to provide personal assistance to patients in their homes, including assistance with healthcare needs and household chores.[BN] The Plaintiff is represented by: Aaron Johnson, Esq. FAIR LABOR LAW 314 E. Highland Mall Blvd, Ste. 401 Austin, TX 78752 Phone: (512) 277-3505 Fax: (512) 277-3254 Email: ajohnson@fairlaborlaw.com - and - Duchoang Daniel Pham, Esq. EQUAL JUSTICE CENTER 2925 Richmond Ave., Ste. 1231 Houston, TX 77098 Phone: (832) 441-4787 Fax: (512) 474-0008 Email: dpham@equaljusticecenter.org - and - Caitlin Boehne, Esq. EQUAL JUSTICE CENTER 314 E. Highland Mall Blvd., Ste. 401 Austin, TX 78752 Phone: (512) 474-0007, ext. 110 Fax: (512) 474-0008 Email: cboehne@equaljusticecenter.org SHARP CHULA: Underwood Labor Suit Removed to S.D. California ------------------------------------------------------------ The case styled JANE UNDERWOOD on behalf of herself and all others similarly situated, Plaintiff v. SHARP CHULA VISTA MEDICAL CENTER, a California Corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 37-2022-00028436-CU-OE-CTL, was removed from the Superior Court of the State of California, County of San Diego, to the U.S. District Court for the Southern District of California on Sept. 7, 2022. The Clerk of Court for the Southern District of California assigned Case No. 3:22-cv-01340-AJB-BGS to the proceeding. The suit alleges wage-and-hour violations. Sharp Chula Vista Medical Center is a not-for-profit health care system based in California.[BN] The Defendant is represented by: Jody A. Landry, Esq. Krystal N. Weaver, Esq. LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101-3577 Telephone: (619) 232-0441 Facsimile: (619) 232-4302 E-mail: jlandry@littler.com kweaver@littler.com TAHOE RESOURCES: Court Temporarily Lifted Stay of Securities Suit ----------------------------------------------------------------- Judge Richard F. Boulware, II, of the U.S. District Court for the District of Nevada issued an Amended Order temporarily lifting the temporary stay of the case, In re TAHOE RESOURCES, INC. SECURITIES LITIGATION. This Document Relates to: All Actions, Case No. 2:17-cv-01868-RFB-NJK (D. Nev.), for the sole purpose of deciding the Motion of Tiffany Huynh for Substitution as Lead Plaintiff. Tiffany Huynh is substituted for Kevin Nguyen as Lead Plaintiff in the putative securities class action. A full-text copy of the Court's Sept. 14, 2022 Amended Order is available at https://tinyurl.com/bdzh8nxm from Leagle.com. Martin A. Muckleroy -- martin@muckleroylunt.com -- MUCKLEROY LUNT, LLC, Las Vegas, NV. James M. Wilson, Jr. -- jwilson@faruqilaw.com -- (pro hac vice), Robert W. Killorin -- rkillorin@faruqilaw.com -- (pro hac vice), Katherine M. Lenahan -- klenahan@faruqilaw.com -- (pro hac vice), FARUQI & FARUQI, LLP, New York, NY, Counsel for the proposed Class. TATE & KIRLIN: Carter Sues Over Unlawful Disclosure of Debt ----------------------------------------------------------- Dawayna Carter, on behalf of herself and all other similarly situated consumers v. TATE & KIRLIN ASSOCIATES, INC., Case No. 220901272 (Pa. Ct. of Common Pleas, Philadelphia Cty., Sept. 14, 2022), is brought for damages arising from the Defendant's violations of the Fair Debt Collection Practices Act as a result of the Defendant's disclosure of the Plaintiff's personal information to a third party. On a date better known to the Defendant, the Plaintiff allegedly incurred a debt. The debt allegedly incurred was for personal, familial, and household purposes. The debt was then transmitted to T&K for collections. In an attempt to collect the debt, the Defendant sent the Plaintiff a collection letter dated September 14th, 2021.The letter was not sent from Defendant itself; Defendant utilized a third-party vendor to send the letter. In doing so, Defendant disclosed Plaintiff's personal information to a third party in violation of the FDCPA, including the fact that Plaintiff owed a debt, says the complaint. The Plaintiff is a natural person who has resided in Philadelphia, Pennsylvania, and is a "consumer." Tate & Kirlin Associates, Inc. is a corporation that regularly conducts business in Pennsylvania.[BN] The Plaintiff is represented by: Nicholas Linker, Esq. ZEMEL LAW LLC 660 Broadway, Paterson, NJ 07514 Phone: (862) 227-3106 Email: nl@zemellawllc.com TESLA INC: Faces False Ads Class Action Over Self-Driving Cars -------------------------------------------------------------- Derek Fung, writing for 7News, reports that an owner is suing Tesla over false advertising about its Autopilot, Enhanced Autopilot, and Full Self-Driving systems -- the latter is still in beta mode but available to around 100,000 owners who have high safety scores. The lawsuit was filed in a federal court in San Francisco and is seeking unspecified damages on behalf of people who bought a Tesla from 2016 onwards equipped with either Autopilot, Enhanced Autopilot, or Full Self-Driving. Briggs Matsko, the plaintiff named in case, claims Tesla and its CEO Elon Musk misled the public by saying the technologies were either fully functioning or "just around the corner" even though they knew otherwise. In the lawsuit filing, Matsko says, "Tesla has yet to produce anything even remotely approaching a fully self-driving car". He goes on to say that when software updates are installed, owners "effectively act as untrained test engineers". Problems found by owners include cars steering into oncoming traffic, running red lights, and failing to make routine turns. Matsko says the company hyped up its assisted driving technology to "generate excitement" about its cars in order to attract investors, drive up its stock price, and improve sales. It also helped the automaker stave off bankruptcy, and become the "dominant player" in the EV market. In early November, Musk stated on Twitter: "Closest we got [to bankruptcy] was about a month. The Model 3 ramp was extreme stress & pain for a long time -- from mid 2017 to mid 2019. Production & logistics hell." The controversially-named Tesla Autopilot is classified a Level 2 self-driving system, meaning the car can drive itself but it needs driver attention and monitoring. The lawsuit follows on from a case filed in early August by the California Department of Motor Vehicles (DMV) against Tesla alleging "untrue or misleading statements" about its Autopilot and Full Self-Driving technology. The DMV says the company's website promoted "short and long-distance trips with no action required by the person in the driver's seat" while a later disclaimer contradicts this stating the tech "[requires] active driver supervision and do not make the vehicle autonomous". As part of its filing, the DMV is seeking to suspend or revoke the company's licence to sell cars in the state, as well as restitution to parties who have suffered damage or financial loss. To date the US National Highway Traffic Safety Administration (NHTSA) has opened 38 special cases related to Tesla's advanced driver assist features, 19 of those involved deaths. [GN] TESLA INC: Matsko Sues Over Misleading and Deceptive Statements --------------------------------------------------------------- Briggs A. Matsko, on behalf of himself and all others similarly situated v. TESLA, INC., dba TESLA MOTORS, INC.; TESLA LEASE TRUST; and TESLA FINANCE LLC, Case No. 3:22-cv-05240 (N.D. Cal., Sept. 14, 2022), is brought to hold Tesla and its representatives, including CEO Elon Musk, accountable for years of making misleading and deceptive statements regarding the company's advanced driver assistance systems ("ADAS") technology and for violations of the federal Magnuson-Moss Warranty Act and California's False Advertising Law, Consumer Legal Remedies Act, and Unfair Competition Law, as well as common law claims for fraud and deceit, negligent misrepresentation, negligence, and unjust enrichment. For years, Tesla has deceptively and misleadingly marketed its ADAS technology as autonomous driving technology under various names, including "Autopilot," "Enhanced Autopilot," and "Full Self-Driving Capability" ("FSD"), the latter two of which Tesla charges consumers thousands of additional dollars to add to their new vehicle. Tesla has deceived and misled consumers regarding the current abilities of its ADAS technology and by representing that it was perpetually on the cusp of perfecting that technology and finally fulfilling its promise of producing a fully self-driving car. Although these promises have proven false time and time again, Tesla and Musk have continued making them to generate media attention, to deceive consumers into believing it has unrivaled cutting-edge technology, and to establish itself as a leading player in the fast-growing electric vehicle market. Despite portraying itself as a leader in autonomous vehicle technology, Tesla's ADAS features have been surpassed by numerous automaker competitors that have developed autonomous driving technology far more advanced than Tesla's, and now available in some consumer markets. At the same time, former Tesla employees and investigations have revealed damning information that now makes clear that, contrary to Tesla's repeated promises that it would have a fully self-driving car within months or a year, Tesla has never been remotely close to achieving that goal. The reality of Tesla's ADAS technology is far different from what Tesla and Musk have spent years telling consumers. Instead of providing its customers the "Full Self-Driving Capability" they paid for, Tesla uses them as untrained test engineers to test drive its experimental FSD Beta software on public roadways, which generates data that Tesla can use to improve its software. Along the way, scores of Tesla owners who believed Tesla's and Musk's deceptive and misleading statements about the capabilities of Tesla's ADAS technology have been killed and seriously injured when that technology failed, often in the face of routine roadway scenarios. Tesla had represented its ADAS technology would make the vehicle fully self-driving in some situations and would soon make it fully self-driving in all situations. It is now four years later, and Tesla has never provided Plaintiff anything remotely approaching the fully self-driving car it promised to provide, says the complaint. Plaintiff Briggs Matsko is California resident who purchased a new 2018 Tesla Model X and paid Tesla $5,000 additional dollars above the vehicle's base price for the Enhanced Autopilot version of Tesla's ADAS technology. The Defendant designs, develops, manufactures, tests, markets, distributes, sells, and leases electric vehicles under the brand name "Tesla."[BN] The Plaintiff is represented by: Joseph W. Cotchett, Esq. Frank M. Pitre, Esq. Nabilah A. Hossain, Esq. Andrew F. Kirtley, Esq. COTCHETT, PITRE & McCARTHY LLP San Francisco Airport Office Center 840 Malcolm Road Burlingame, CA 94010 Phone: (650) 697-6000 Fax: (650) 697-0577 Email: jcotchett@cpmlegal.com fpitre@cpmlegal.com nhossain@cpmlegal.com akirtley@cpmlegal.com TURQUOISE HILL: New York Court Dismisses Securities Class Action ---------------------------------------------------------------- Turquoise Hill Resources Ltd. (TSX: TRQ) (NYSE: TRQ) ("Turquoise Hill" or the "Company") on Sept. 14 disclosed that a federal court in New York has dismissed all claims made against the Company and three of its current or former executives in a putative class action, backed by Pentwater Capital Management LP ("Pentwater'), filed in October 2020. The lead plaintiff in the case, a group of private investment funds advised by Pentwater (the "Pentwater Funds"), alleged in its complaint that the Company and three of its executives had violated United States securities laws by making false or misleading statements about the progress and expected cost of the development of the Oyu Tolgoi underground mine in Mongolia. The Pentwater Funds brought the claims on behalf of a putative class of investors who purchased Turquoise Hill securities from July 17, 2018, to July 31, 2019, in the United States. On September 2, 2022, the federal judge presiding over the litigation issued a 134-page ruling granting in full Turquoise Hill's motion to dismiss all of the claims asserted against both the Company and its three executives, ruling that the claims were not adequately pleaded and failed to state a claim for relief. The case was captioned In re Turquoise Hill Resources, Ltd. Securities Litigation, 20-cv-08585 (LJL), and was filed in the United States District Court for the Southern District of New York. Paul, Weiss, Rifkind, Wharton & Garrison LLP represented the Company in the action. [GN] TWITTER INC: Bids for Lead Plaintiff Appointment Due November 14 ---------------------------------------------------------------- Bernstein Liebhard LLP on Sept. 14 disclosed that a securities class action lawsuit has been filed on behalf of investors who purchased or acquired the securities of Twitter, Inc. ("Twitter" or the "Company") (NYSE: TWTR) between August 3, 2020 and August 23, 2022, inclusive (the "Class Period"). The lawsuit was filed in the United States District Court for the Central District of California and alleges violations of the Securities Exchange Act of 1934. Twitter purports to be a global social media platform for public self-expression and conversation in real time. In 2010, the Federal Trade Commission ("FTC") filed a complaint against Twitter for mishandling users' private information and for having too many employees with access to Twitter's central controls. On March 11, 2011, the FTC agreed to a settlement with Twitter. As part of the settlement, Twitter agreed it would be "barred for 20 years from misleading consumers about the extent to which it protects the security, privacy, and confidentiality of nonpublic consumer information, including the measures it takes to prevent unauthorized access to nonpublic information and honor the privacy choices made by consumers." Plaintiff alleges that Defendants made materially false and misleading statements throughout the Class Period concerning security issues. Specifically, Plaintiff alleges that Defendants failed to disclose that: (1) Twitter knew about security concerns on their platform; (2) Twitter actively worked to hide the security concerns from the board, the investing public, and regulators; (3) contrary to representations in SEC filings, Twitter did not take steps to improve security; and (4) Twitter's active refusal to address security issues increased the risk of loss of public goodwill. On August 23, 2022, before market hours, CNN published an article entitled "Ex-Twitter exec blows the whistle, alleging reckless and negligent cybersecurity policies". The article stated that "Twitter has major security problems that pose a threat to its own users' personal information, to company shareholders, to national security, and to democracy, according to an explosive whistleblower disclosure obtained exclusively by CNN and The Washington Post." The article further reported that "[t]he disclosure, sent last month to Congress and federal agencies, paints a picture of a chaotic and reckless environment at a mismanaged company that allows too many of its staff access to the platform's central controls and most sensitive information without adequate oversight. It also alleges that some of the company's senior-most executives have been trying to cover up Twitter's serious vulnerabilities, and that one or more current employees may be working for a foreign intelligence service." On this news, the Company's shares fell $3.15, or over 7%, to close at $39.86 per share on August 23, 2022. If you wish to serve as lead plaintiff, you must move the Court no later than November 14, 2022. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased Twitter securities, and/or would like to discuss your legal rights and options please visit Twitter, Inc. Shareholder Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information: Peter Allocco Bernstein Liebhard LLP https://www.bernlieb.com (212) 951-2030 pallocco@bernlieb.com [GN] UNION PACIFIC: Motions in Limine in Baker Suit Granted in Part -------------------------------------------------------------- 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 grants in part the parties' motions in limine. The matter is before the Court on the Plaintiff's motions in limine: 1) to sequester witnesses, Filing No. 383; 2) to preclude evidence of train accidents, Filing No. 385, 3) to preclude evidence of FMLA leave, Filing No. 387; 4) to preclude evidence of the ability to grieve the adverse actions, Filing No. 389; 5) to preclude evidence of railroad retirement income and his wife's income, Filing No. 391; and on Defendant Union Pacific Railroad Company's ("U.P.") motion in limine Numbers 1-14, Filing No. 394. This is an action for disability discrimination that was set for trial on Sept. 19, 2022. First, Judge Bataillon grants motion to sequester witnesses, Filing No. 383, as U.P. does not object to it. Second, he overrules the motion to preclude evidence of train accidents, Filing No. 385, without prejudice to its reassertion via timely objection at trial. U.P. states that it will only offer evidence about two recent accidents (the Goodwell accident and the Arden accident), both of which: (a) involved Union Pacific trains, and (b) played an important role in its decision to temporarily restrict Baker from safety-sensitive work. Baker argues the causes of the train accidents in question are wholly unrelated to the reasons for holding Baker out of work. Judge Bataillon is unable to evaluate the relevance or admissibility of the accident evidence in the context of a pretrial motion. The evidence may be relevant to provide background for the Railroad's practices or policies. However, generally speaking, it would seem that unless the accident is close on its facts to Baker's situation, it would either be irrelevant or its relevance would be outweighed by the potential of such evidence to confuse the issues, cause undue delay, or waste the court's time. Nevertheless, Judge Bataillon will reserve ruling until he hears the evidence in context and Union Pacific has had an opportunity to explain the relevance of the evidence. Accordingly, he will deny the motion without prejudice to reassertion at trial. The parties should approach the bench before presenting the evidence. The motion in limine should be overruled at this time, without prejudice to its reassertion via timely objection at trial. Third, Judge Bataillon grants the motion to preclude evidence of FMLA leave, Filing No. 387. U.P. intends to offer evidence on Baker's self-reporting of his medical condition and the leave he was granted specifically for such condition. Baker disputes the Railroad's characterization of the FMLA leave and requests the Court grants the Plaintiff's motion as to FMLA leave, with the understanding that the parties each intend to offer evidence pertaining to the Plaintiff's removal from work in the fall of 2014 and whether that removal constituted a granting of leave. Fourth, U.P. states it does not intend to offer evidence on Union activities. Accordingly, the motion to preclude that evidence will be granted. Fifth, U.P states it does not intend to offer evidence on Railroad Retirement Benefits or spousal income. Baker responds that U.P.'s characterization of the RRB evidence is too broad and clarifies that he does not seek to preclude all its representations to the RRB about Baker's condition and his ability to work. Judge Bataillon cannot evaluate the relevance of that evidence in the context of a pretrial motion. Accordingly, the motion will be granted with respect to evidence of the amount of Baker's RRB income at the time of his removal, but denied in other respects, without prejudice to reassertion at trial. Sixth, as to the Defendant's Motions in Limine, Filing No. 394, Judge Bataillon will (i) grant it to the extent that it precludes evidence or argument that U.P. is required by law to conduct the in-person examination but will not exclude evidence that an in-person exam was not conducted; (ii) deny the motion to preclude arguments that Baker's lack of episodes or other neurological events since Feb. 26, 2015 suggests Union Pacific made the "wrong" or "incorrect" medical decision, without prejudice to reassertion at trial; (iii) deny the motion to preclude arguments about other ADA lawsuits against Union Pacific, including Dr. Trangle and Dr. Devereaux's experience in other cases; (iv) grant the motion to preclude arguments or evidence of Baker's subjective belief about discrimination; and (v) deny the motion to preclude arguments or evidence about alleged lost benefits, at this time, without prejudice to reassertion at trial. Moreover, Judge Bataillon holds that (i) as to the motion to preclude arguments or evidence about the Federal Motor Carrier Safety Administration ("FMCSA") Guidelines, including alleged removal of the Medical Examiner Handbook from one section of the FMCSA website, evidence that relates to the FMCSA standards is relevant to explain the defendant's position and to understand the facts in context; (ii) as to motion to preclude arguments or evidence about accommodations that Baker never identified or requested, U.P. has not established that Baker cannot maintain a reasonable accommodation claim; (iii) he will deny the motion to preclude arguments that the plaintiff has a "record of" disability because Baker does not allege that he has an actual disability, but that his medical records misclassify him as such; and (iv) he will grant the motion to preclude arguments or evidence about Baker's claim for damages From Nov. 6, 2014 to Feb. 1, 2015, as to that the damages period beginning Jan. 26, 2015, but deny with respect to the five-day period to Feb. 1, 2015. Judge Bataillon further holds that (i) the motion to preclude an expert opinion that was not disclosed, including opinions from treating providers about the reasonableness of the restrictions placed on the Plaintiff by U.P. that did not arise in the course and scope of treatment should be denied at this time, without prejudice to reassertion at trial if testimony exceeds those bounds; (ii) the motion to preclude arguments or evidence of or reference to pretrial motions, including, but not limited to, discovery motions, motions for summary judgment and motions in limine, will be granted; (iii) the motion to preclude arguments or evidence about discovery disputes, objections to discovery, and assertions of privilege will be granted; and (iv) the motion to preclude witnesses' opinions that Baker was treated unfairly, or that U.P. violated the law will be granted with respect to other witnesses, but denied with respect to the testimony of Chad Bilson, without prejudice to reassertion at trial. The Defendant's motion to preclude any solicitation of juror promises will be denied because Judge Bataillon cannot rule on the motion in the pretrial context. The motion is more in the nature of an objection at trial. Any inappropriate questions can be stricken from the record should the situation arise. Finally, motion to preclude the Plaintiff's expert Michael Devereaux's testimony that U.P.'s actions were "punitive" will be denied without prejudice to reassertion at trial because Judge Bataillon cannot resolve the dispute without hearing the testimony. The parties are advised to approach the bench before eliciting any such testimony. In light of the foregoing, Judge Bataillon grants in part and denies in part the parties' motions in limine (Filing Nos. 383, 385, 387, 389, 391 and 394) as set forth in his Memorandum and Order. A full-text copy of the Court's Sept. 14, 2022 Memorandum & Order is available at https://tinyurl.com/ysd66u99 from Leagle.com. UNITED STATES: Air Force Fails to Repeal Class Cert. in COVID Suit ------------------------------------------------------------------ Bethany Blankley, writing for The Ohio Star, reports that a panel of three Sixth Circuit judges have denied the Air Force's attempt to overturn class certification granted to all members of the Air Force by a federal district court judge in July. In doing so, they handed another win to roughly 10,000 airmen and women fighting against the Department of Defense's COVID-19 vaccine mandate. The appeals court judges denied an emergency motion made by the Air Force requesting it stay the class certification and injunction granted in Hunter Doster, et al. v. Hon Frank Kendall, et al., by U.S. District Judge Matthew W. McFarland of the Southern District of Ohio. In July, McFarland granted class status and issued a preliminary injunction preventing retaliation against those in the Air Force who don't comply with the mandate as the lawsuit continues. His order remains in effect. McFarland ordered that the protected class includes all "active-duty, active reserve, reserve, national guard, inductees, and appointees of the United States Air Force and Space Force, including but not limited to Air Force Academy Cadets, Air Force Reserve Officer Training Corps (AFROTC) Cadets, Members of the Air Force Reserve Command, and any Airman who has sworn or affirmed the United States Uniformed Services Oath of Office or Enlistment and is currently under command and could be deployed, who: (i) submitted a religious accommodation request to the Air Force from the Air Force COVID-19 vaccination requirement, where the request was submitted or was pending, from September 1, 2021 to the present; (ii) were confirmed as having had a sincerely held religious belief substantially burdened by the Air Force's COVID-19 vaccination requirement by or through Air Force Chaplains; and (iii) either had their requested accommodation denied or have not had action on that request." He also ordered the Air Force and "any person acting in concert with Defendants" be prevented from taking any adverse action against those in the protected class who don't comply with the order. The plaintiffs allege the Air Force discriminated against them by denying their religious accommodation requests and violated their rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the U.S. Constitution. Department of Defense Secretary Lloyd Austin has argued that the vaccine mandate is necessary for mission readiness and ordered that those who don't comply face disciplinary action, discharge, and even court martial. The Air Force has maintained throughout the case that "in today's global climate, it is in the public's interest for the armed services to remain at full strength, rather than separating thousands of Airmen due to their refusal to get the COVID-19 vaccine." The Air Force has also argued that the thousands of airmen and women who oppose the mandate have their cases tried separately; combined, they don't meet the requirements for class certification. It's also argued that the plaintiffs' RFRA claim can't be litigated class wide because it says it doesn't have a general policy to deny all requests for religious exemptions. Instead, it's argued that it uses "an individualized process that accounts for facts particular to each service member." But the appellate judges in their 11-page ruling point out that the Air Force has granted thousands of medical and administrative exemptions but no religious exemptions, arguing, "we think the district court was likely correct when it held that, on this record, that contention supports litigation of both a RFRA claim and a First Amendment free-exercise claim class-wide." They held that RFRA allows the federal government to "substantially burden a person's exercise of religion" only when doing so "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." They also argue the Air Force's defense "provide[s] no basis on which we may grant a stay. Moreover, our own review of the record does nothing to convince us that the Department is likely to prevail on" its argument against granting class status. The appellate judges also said the "most remarkable" aspect of the motion brought by the Air Force was that it hadn't "made any argument as to whether the First Amendment claim (as opposed to the RFRA claim) was improperly certified. That certification stands unchallenged; that claim can support class-wide relief as much as the RFRA claim can; and that omission is an independent reason to deny the Department's motion to stay the class-wide preliminary injunction." The Air Force has yet to state whether it will ask the full court to weigh in on the case. [GN] UNITEDHEALTH GROUP: Court Enters Final Judgment in MSSNY ERISA Suit ------------------------------------------------------------------- In the case, THE MEDICAL SOCIETY OF THE STATE OF NEW YORK, et al., Plaintiffs v. UNITEDHEALTH GROUP, INC., et al., Defendants, Case No. 16-CV-5265 (JPO) (S.D.N.Y.), Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York issued his Findings of Fact and Conclusions of Law, finding in favor of the Defendants on all counts. The central issue in the class action is whether a health insurer violated ERISA (the Employee Retirement Income Security Act of 1974, 29 U.S.C. Sections 1001, et seq.) when it determined that physicians performing office-based surgeries in the state of New York are not entitled to a "facility fee." The Plaintiffs are two organizations -- the Medical Society of the State of New York ("MSSNY") and the Society of New York Office Based Surgery Facilities ("NYOBS") -- and a Manhattan medical practice, Columbia East Side Surgery, P.C. The Defendants are UnitedHealth Group Inc., United HealthCare Services, Inc., United HealthCare Insurance Co., United HealthCare Service LLC, Optum Group, LLC, Optum, Inc., and Oxford Health Plans LLC (collectively, "United"). A five-day bench trial was held before the Court in February 2022. The parties subsequently filed post-trial briefs and response briefs. United administers ERISA-governed health benefit plans. While some of these plans are fully insured, the majority are self-funded, which means that the plan sponsor pays any benefits and United acts only as a third-party administrator (known as "Administrative Services Only" or "ASO" plans). A Certificate of Coverage ("COC") governs fully insured plans and the terms of the ASO plans are described in a Summary Plan Description ("SPD"). United has developed processes for adjudicating the many claims it receives every day. It maintains template plan language setting forth its standard coverage and reimbursement terms. United's templates, plan documents, and plan interpretations are updated to reflect legislative developments. As relevant in the case, when New York enacted New York Public Health Law ("NY PHL") Section 230-d in 2007, United prepared a legislative bulletin alerting various business units to the law, and itss in-house counsel analyzed the "wording of the law," "other state statutes," and published DOH guidance regarding the law, including a set of Frequently Asked Questions ("FAQs") posted on the DOH website, among other things. No plan sponsor has ever requested that United interpret or apply its plan to pay "facility fees" to physician offices. And the New York Department of Financial Services ("DFS") -- which approves the plan terms used in all New York COCs (and prescribes them today) -- has never directed United to pay facility fees to office-based surgeries under its COCs. Although the plan terms administered by United vary somewhat, they include similar structures and provisions. Importantly, while the plans administered or insured by United cover outpatient surgical services, they distinguish between "facilities" and "physician offices" and generally reserve "facility fees" only for facilities. All the plans at issue apply United's standard claim reimbursement policies for administering plan benefits. For in-network providers, the plans commonly refer to the contracted amounts as the "allowed" or "eligible" expenses for reimbursement. And for out-of-network providers, there are two reimbursement methodologies: The reimbursement amounts are either (1) a percentage of Medicare's reimbursement amounts for the same services, or (2) a percentage of the charges that are "reasonable and customary" in the industry. Neither of the reimbursement approaches for out-of-network providers allows for payment of a separate "facility fee" to an office for an office-based procedure. When a United plan uses a Medicare-based methodology for reimbursing out-of-network services, United uses the Medicare reimbursement fee schedule. When a plan's chosen methodology for paying out-of-network claims is based on "reasonable and customary" charges in the industry, United pays a global professional fee and estimates the amount of the practice expense based on a professional charge database. Under Article 28 of the New York Public Health Law ("NY PHL"), inpatient and outpatient hospitals and freestanding ambulatory surgery centers ("ASCs") are all categorized as hospitals that may perform "ambulatory surgery," including outpatient surgery that cannot "be performed safely in a private physicians' office." In 2007, the New York Assembly adopted NY PHL Section 230-d, which created new restrictions on physicians who choose to perform certain surgical procedures in their offices. Physician offices operate under the physician's medical license. Further, NY PHL Section 230-d(h) defines "office-based surgery" as "any surgical or other invasive procedure performed by a licensee in a location other than a hospital, as such term is defined in article twenty-eight of this chapter," explicitly distinguishing office-based surgical procedures from those conducted in an Article 28 facility. Neither New York's Medicaid program, nor the health plan that covers state employees, nor the program implementing the State's "no-fault" law pays or prescribes separate facility fees to physician's offices. After a plan's terms are determined by United and the plan's sponsor, United compiles key terms in a "benefit summary" or "BDR" and then uses those documents to program its claims adjudication system with those terms. Around 2005, United became aware that some physician offices were obtaining facility fees by using the "facility" code when submitting claims. United then changed its standard claim adjudication to interrupt automated payments to offices that were seeking facility fees. Under this process, known as a "C Flag," once a physician office is identified by United as billing facility fees, United places a "flag" on the provider to prevent facility-fee claims from being paid and sends a letter to the provider inviting them to provide proof of facility licensure. When the state legislature enacted NY PHL Section 230-d in 2007, United considered whether this law required it to alter its reimbursement practice of reimbursing physician office services through professional fees and concluded that it did not. It therefore made no changes to its C Flag process. However, it began using the list of Article 28-licensed facilities available on the DOH website to help identify providers that were not on the Article 28 list. Though United's claim reimbursement policies apply to both network and out-of-network providers, United has contracted with some in-network physicians to provide non-standard reimbursement practices for office-based surgeries and other procedures. Columbia East Side operates under the license of its physician owner, Dr. Darrick Antell, and has never been licensed as an Article 28 facility. As a result, neither Medicare nor any private payer has ever regularly paid Columbia East Side a facility fee. United has informed Dr. Antell on numerous occasions that his office did not qualify as a "facility" and thus was not entitled to bill for facility fees. In Count I, Columbia East Side alleges that United violated ERISA by failing to pay facility fees to it in accordance with the applicable plans. Columbia East Side maintains thirty-one benefit claims on behalf of twenty-nine patients. The benefits claims seek a total of $1,507,102.33 for a "facility fee." United has paid Dr. Antell $400,000 in professional fees for these procedures. In Count Two, Columbia East Side, joined by MSSNY and NYOBS, asserts a class-wide claim for prospective injunctive and declaratory relief, alleging that United has systematically violated ERISA by failing to adequately review the plans to determine whether facility fees should be paid to physician offices for office-based surgeries. Judge Oetken first addresses Count II of the Complaint, which seeks declaratory and injunctive relief that United's systematic application of its refusal to pay facility fees to physician offices violates ERISA. He then addresses Count I, which covers Columbia East side's benefit claims. As to declaratory and injunctive relief, Judge Oetken concludes that the Plaintiffs have failed to demonstrate that United's process for adjudicating the claims at issue violates ERISA. United implemented reasonable systems designed to ensure that coverage determinations accord with plan terms and sufficiently explained to the Plaintiffs why they were denied facility fee claims submitted for office-based procedures. He therefore finds for United on Count II. For the same reasons detailed, Judge Oetken concludes that the Plaintiffs have failed to demonstrate that United erred in its adjudication of the claims filed on behalf of Columbia East Side's patients. United had discretion to determine coverage questions, and Plaintiffs have not shown that United's interpretation of the plans at issue was without reason. Even more compelling is the fact that the plans covering these thirty-one claims distinguish between "offices" and "facilities," and some of the plans explicitly define "facility" to require an Article 28 license. Not one of the plans explicitly confers "facility fee" benefits for physician offices. Because Columbia East Side is not an Article 28 license facility, and he concludes that United was reasonable in determining that offices without an Article 28 license are not entitled to separate facility fees, Judge Oetken finds for United on Count I. Based on these findings of fact and conclusions of law, Judge Oetken finds in favor of the Defendants on all counts. The Clerk of Court is directed to enter final judgment in favor of the Defendants and to close the case. A full-text copy of the Court's Sept. 14, 2022 Findings of Fact & Conclusions of Law is available at https://tinyurl.com/yfn9uajk from Leagle.com. WENTZVILLE R-IV: C.K.-W. Appeals Preliminary Injunction Bid Denial ------------------------------------------------------------------ Plaintiffs C.K.-W., et al., filed an appeal from a court ruling entered in the lawsuit entitled C.K.-W., a minor by and through her parent T.K.; D.L., by and through his parent Z.L.; individually and on behalf of those similarly situated v. Wentzville R-IV School District, Case No. 4:22-cv-00191, in the U.S. District Court for the Eastern District of Missouri - St. Louis. The Plaintiffs filed this suit on February 15, 2022 challenging the policy of Defendant Wentzville R-IV School District of removing books from school libraries because of officials' dislike of the ideas contained in the books and with the intent and purpose to prescribe what is generally or traditionally accepted as right or true in matters of opinion, and of automatically removing books upon any complaint against the books by a parent, student, or guardian -- sometimes with the possibility of further review and, in other cases, permanently -- in violation of Plaintiffs' First and Fourteenth Amendment rights. On March 14, 2022, the Plaintiffs filed a motion for preliminary injunction which the Court denied on August 5, 2022 through an Order signed by District Judge Matthew T. Schelp. The Plaintiffs seek a review of this ruling in their appellate case captioned as C.K.-W., et al. v. Wentzville R-IV School District, Case No. 22-2885, in the U.S. Court of Appeals for the Eighth Circuit, filed on Sept. 6, 2022. The briefing schedule in the Appellate Case states that: -- Appendix is due on Oct. 17, 2022; -- BRIEF OF APPELLANT C.K.-W., D.L., Missouri State Conference of the National Association for the Advancement of Colored People and St. Charles County Missouri Unit of the National Association for the Advancement of Colored People is due on Oct. 17, 2022; and -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant.[BN] Plaintiffs-Appellants C.K.-W., a minor by and through her parent T.K., individually and on behalf of those similarly situated, et al., are represented by: Molly E. Carney, Esq. Emily Lazaroff, Esq. Anthony E. Rothert, Esq. Jessie M. Steffan, Esq. AMERICAN CIVIL LIBERTIES UNION OF MISSOURI 906 Olive Street, Suite 1130 Saint Louis, MO 63101 Telephone: (314) 669-3422 - and - Vera Eidelman, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004-2400 Telephone: (212) 549-2556 - and - Gillian R. Wilcox, Esq. ACLU OF MISSOURI FOUNDATION 406 W. 34th Street, Suite 420 Kansas City, MO 64111 Telephone: (816) 470-9938 Defendant-Appellee Wentzville R-IV School District is represented by: Jeffrey Andrew Marriott, Esq. EDCOUNSEL, L.L.C. 201 N. Forest Avenue, Suite 200 Independence, MO 64050 Telephone: (816) 252-9000 - and - Matthew D. Wilson, Esq. EDCOUNSEL, LLC 2833 E. Battlefield Street, Suite B100 Springfield, MO 65804 Telephone: (417) 755-7190 WEST VIRGINIA: Crouch Appeals Summary Judgment in Fain Suit ----------------------------------------------------------- WILLIAM CROUCH, in his official capacity as Cabinet Secretary of the West Virginia Department of Health and Human Resources, et al., filed an appeal from court rulings entered in the lawsuit entitled CHRISTOPHER FAIN, SHAUNTAE ANDERSON, individually and on behalf of all others similarly situated, Plaintiffs v. WILLIAM CROUCH, in his official capacity as Cabinet Secretary of the West Virginia Department of Health and Human Resources; CYNTHIA BEANE, in her official capacity as Commissioner for the West Virginia Bureau for Medical Services; WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, BUREAU FOR MEDICAL SERVICES, Defendants, Case No. 3:20-cv-00740, in the U.S. District Court for the Southern District of West Virginia at Huntington. The putative Class Action Complaint asserts several claims, each of which is rooted in the same theory: That the Defendants discriminated against Plaintiffs by denying coverage for gender-confirming health care. The Complaint defines "gender-confirming care" as health care which "includes, but is not limited to, counseling, hormone replacement therapy, and surgical care for the treatment of gender dysphoria -- the clinically significant distress that can result from the dissonance between an individual's gender identity and sex assigned at birth." According to the Complaint, these treatments are denied to transgender individuals despite being available to cisgender individuals. The Complaint raises two types of individual and class action claims: (1) those brought by Medicaid recipients against the WVDHHR Defendants and (2) those brought by state employees and their dependents against Ted Cheatham, the Director of the West Virginia Public Employee Insurance Administration, and The Health Plan, a health maintenance organization permitted to offer health plans to state employees through PEIA. As reported in the Class Action Reporter on Aug. 18, 2022, Judge Robert C. Chambers of the U.S. District Court for the Southern District of West Virginia, Huntington Division, granted the Plaintiffs' Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. Judge Chambers found that certification of the class seems appropriate given that the exclusion applies broadly to all members of the proposed class and certification is warranted, as the exclusion affects all proposed class members, and the declaratory and injunctive relief sought would benefit all class members. On Aug. 2, 2022, the Court entered a Memorandum Opinion and Order in response to May 31, 2022 motions: granting Plaintiffs' motion for summary judgment; denying Defendants' motion for summary judgment; and denying as moot the motion to exclude expert testimony of Stephen B. Levine, M.D. On Aug. 17, 2022, the Court entered judgment in favor of Plaintiffs Christopher Fain and Shauntae Anderson. The Defendants are now filing this appeal to review the class certification and summary judgment rulings. The appellate case is captioned as William Crouch, et al. v. Christopher Fain, Case No. 22-1927, in the U.S. Court of Appeals for the Fourth Circuit, filed on Sept 6, 2022.[BN] Defendants-Appellants WILLIAM CROUCH, in his official capacity as Cabinet Secretary of the West Virginia Department of Health and Human Resources, et al., are represented by: Kimberly M. Bandy, Esq. Lou Ann S. Cyrus, Esq. Roberta Frances Green, Esq. SHUMAN, MCCUSKEY & SLICER, PLLC P. O. Box 3953 Charleston, WV 25339 Telephone: (304) 345-1400 Plaintiffs-Appellees CHRISTOPHER FAIN and SHAUNTAE ANDERSON, individually and on behalf of all others similarly situated, are represented by: Walt Auvil, Esq. EMPLOYMENT LAW CENTER, PLLC 1208 Market Street Parkersburg, WV 26101-0000 Telephone: (304) 485-3058 - and - Tara Lynn Borelli, Esq. LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 1 West Court Square Decatur, GA 30030 Telephone: (470) 225-5341 - and - Carl Solomon Charles, Esq. LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC 120 Wall Street New York, NY 10005-3904 Telephone: (404) 897-1880 - and - Anna Purna Prakash, Esq. NICHOLS KASTER, LLP 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 WESTCO CHEMICALS: Diaz Appeals Summary Judgment in ERISA Suit ------------------------------------------------------------- Plaintiffs Merry Diaz, et al., are appealing a summary judgment ruling entered in the lawsuit entitled Merry Russitti Diaz and Kater Perez, individually and on behalf of all others similarly situated v. Westco Chemicals, Inc.; Ezekiel "Alan" Zwillinger; and Steven Zwillinger, Case No. 2:20-cv-02070, in the U.S. District Court for the Central District of California, Los Angeles. The complaint, filed on March 3, 2020, alleges that the Defendants violated the Employee Retirement Income Security Act as fiduciaries of the Westco Chemicals Defined Benefit Pension Plan. The Plaintiffs contend that the Defendants never intended for the Pension Plan to be a legitimate Pension Plan that provided meaningful retirement income to their employees, or to otherwise comply with existing laws and regulations that govern such plans. Rather, the Plaintiffs allege, the Defendants created and have since used the Pension Plan primarily to funnel the money in the Pension Plan to themselves and their relatives. On May 4, 2020, the Defendants filed a motion to dismiss which was denied on September 1, 2020. On February 8, 2021, the Plaintiffs filed a motion to certify class which the Court granted on March 9, 2021 pursuant to Rule 23(a) of the Federal Rules of Civil Procedure. On February 15, 2022, the Defendants filed a motion for summary judgment which Judge Otis D. Wright, II granted on August 18, 2022. On August 19, 2022, Judge Wright, II entered judgment, ruling that Defendants Westco Chemicals, Inc.; Alan Zwillinger; and Steven Zwillinger shall have JUDGMENT in their favor; Plaintiffs Merry Russitti Diaz and Kater Perez shall recover nothing from Defendants; and the Plaintiffs' complaint is dismissed on the merits and with prejudice. The appellate case is captioned as Merry Diaz, et al. v. Westco Chemicals, Inc., et al., Case No. 22-55823, in the United States Court of Appeals for the Ninth Circuit, filed on Sept. 6, 2022. The briefing schedule in the Appellate Case states that: -- Appellants Merry Russitti Diaz and Kater Perez Mediation Questionnaire was due on Sept. 13, 2022; -- Appellants Merry Russitti Diaz and Kater Perez opening brief is due on November 7, 2022; -- Appellees Westco Chemicals, Inc., Alan Zwillinger and Steven Zwillinger answering brief is due on December 7, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants MERRY RUSSITTI DIAZ and KATER PEREZ, individually and on behalf of all others similarly situated, are represented by: Michael Craig McKay, Esq. MCKAY LAW LLC 5635 N. Scottsdale Road, Suite 170 Scottsdale, AZ 85250 Telephone: (480) 681-7000 Defendants-Appellees WESTCO CHEMICALS, INC.; ALAN ZWILLINGER, erroneously sued as Ezekiel Alan Zwillinger; and STEVEN ZWILLINGER, are represented by: Joseph C. Faucher, Esq. TRUCKER HUSS, APC 135 Main Street, 9th Floor San Francisco, CA 94105 Telephone: (415) 788-3111 WP OPERATIONS: Settlement Deal in Clements Wins Initial Nod ----------------------------------------------------------- In the class action lawsuit captioned as MITCHELL CLEMENTS, on behalf of himself and all others similarly situated, v. WP OPERATIONS, LLC, Case No. 3:19-cv-01051-wmc (W.D. Wisc.), the Hon. Judge William M. Conley entered an order that: 1. The Plaintiff's motions to certify the class under Rule 23 and defendant's motion to file an amended answer are denied as moot. 2. The Plaintiff's unopposed motion for preliminary approval of settlement agreement is granted. 3. The court certifies the following Rule 23 classes for settlement purposes: -- Railcar Operator Subclass "All individuals who were hourly-paid, non-exempt employees employed by or working at the Defendant, WP Operations, LLC, between December 26, 2017, and continuing through the present, in the State of Wisconsin in the position of Railcar Operator (or Railcar Lead Operator, to the extent such a separate title designation is made in Company records), who utilized Defendant's electronic timekeeping system(s), Orbit Solutions and/or Ulti-Pro (or UKG), to track or record their hours worked. -- Production Employee Subclass "All individuals who were hourly-paid, non-exempt employees employed by or working at Defendant, WP Operations, LLC, between December 26, 2017 and continuing through the present in the State of Wisconsin in any position other than the position of Railcar Operator (or Railcar Lead Operator, to the extent such a separate title designation is made in Company records), who utilized Defendant's electronic timekeeping system(s), Orbit Solutions and/or Ulti-Pro (or UKG), to track or record their hours worked." 4. The court certifies the following Fair Labor Standards Act (FLSA) collectives for settlement purposes: -- Operator Collective "All individuals who were hourly-paid, non-exempt employees employed by or working at Defendant, WP Operations, LLC, between December 26, 2016, and continuing through the present, in the State of Wisconsin in the position of Railcar Operator or Railcar Lead Operator, who utilized Defendant's electronic timekeeping system(s), Orbit Solutions and/or Ulti-Pro (or UKG), to track or record their hours worked. -- Production Employee Collective "All individuals who were hourly-paid, non-exempt employees employed by or working at Defendant, WP Operations, LLC, between December 26, 2016, and continuing through the present, in the State of Wisconsin in any position other than the position of Railcar Operator or Railcar Lead Operator, who utilized the Defendant's electronic timekeeping system(s), Orbit Solutions and/or Ulti-Pro (or UKG), to track or record their hours worked. 5. This case is conditionally certified as a collective action under 29 U.S.C. section 216(b) of the Fair Labor Standards Act for purposes of discovery and sending notice to the putative plaintiffs as defined above; 6. The Plaintiff Mitchell Clements is appointed as class representative and Walcheske & Luzi, LLC is appointed as class counsel. A copy of the Court's order dated Sept. 6, 2022 is available from PacerMonitor.com at https://bit.ly/3BSaN8t at no extra charge.[CC] YOURTRAVELBIZ.COM: Faces Class Action Over Illegal Pyramid Scheme ----------------------------------------------------------------- George Dooley at travelagentcentral.com reports that the problems of Wood River, IL-based YourTravelBiz.com (YTB) multiplied following legal action by the California Attorney General after a class action law suit was filed in a federal court in Illinois and a regional Better Business Bureau (BBB) released complaints about YTB. The federal action was filed in the U.S. District Court for Southern Illinois, according to a report by The Telegraph, a major regional newspaper. The action charges that YTB was an illegal pyramid scheme. The action names two specific plaintiffs, Faye Morris of St. Louis and Kwame Thompson of Atlanta. The action seeks class action status on behalf of as many as 1,000 people who were members of the YTB travel network. As with the California suit, the defendants are YTB International Inc., YourTravelBiz.Com, YTB Travel Network Inc., YTB Travel Network of Illinois and its technology unit Rezconnect Technologies. Officers of YTB are also named in the action including founder J. Lloyd Tomer and YTB executives J. Scott Tomer, J. Kim Sorensen, Andrew Cauthen and Michael Brent. Compounding YTB's problems, a report filed by the Better Business Bureau of Eastern Missouri and Southern Illinois was released. The BBB alleges that YTB has faced consumer complaints filed in at least 31 states. The new Illinois federal action alleges that YTB violated Illinois law by using an illegal pyramid sales scheme and illegal chain of referral sales techniques that caused the plaintiffs to suffer actual damages, according to the Telegraph. Reports of the action by California's Attorney General sparked angry debate among travel agents across the U.S., including defenders of YTB's program and critics of YTB. Many agents assert that YTB's program encourages non-professional "pseudo" agents to enter the industry. The St. Louis Post Dispatch, a major daily, reported that YTB had responded to the BBB's complaints via a statement by Chief Executive Officer Scott Toner, who said they were "unaware" of any unresolved BBB complaints. "We are proud of our business model and how our operations are conducted in an ethical and transparent way," Toner is quoted as saying. "We also are wholly confident that our business model will withstand scrutiny, and look forward to setting the record straight in court." At presstime YTB' had yet to respond to the crisis on its website nor responded to emailed requests for comments. [GN] ZILLOW GROUP: Kauffman Sues Over Unauthorized Collection of Data ---------------------------------------------------------------- David Kauffman, individually and on behalf of others similarly situated v. ZILLOW GROUP, INC., Case No. 3:22-cv-01398-LL-AGS (S.D. Cal., Sept. 15, 2022), is brought for damages and injunctive relief against the Defendant and its present, former, or future direct and indirect parent companies, subsidiaries, affiliates, agents, related entities for violations of the California Penal Code Section 631 Wiretapping, ("CIPA") in relation to the unauthorized collection, recording, and dissemination of Plaintiff's and Class Members' data. This case stems from Defendant's unauthorized connection to the Plaintiff's and Class Members' electronic communications through the use of "session replay" spyware that allowed Defendant to read, learn the contents of, and report Plaintiff's and Class Members' visits to Defendant's websites. The Defendant utilized "session replay" spyware to intercept the Plaintiff's and the Class Members' electronic computer-to-computer data communications, including how Plaintiff and Class Members interacted with the website, mouse movements and clicks, keystrokes, search items, information inputted into the website, and pages and content viewed while visiting the website. The Defendant intentionally tapped and made unauthorized connection to the Plaintiff and Class Members' electronic communications to read and understand movement on the website, as well as everything Plaintiff and Class Members did on those pages, e.g., what Plaintiff and Class Members searched for, looked at, the information inputted, and clicked on. The Defendant made this unauthorized connection without the knowledge or prior consent of Plaintiff of Class Members. The "session replay" spyware utilized by Defendant is a sophisticated computer software that allows Defendant to contemporaneously intercept, capture, read, observe, re-route, forward, redirect, and receive electronic communications, says the complaint. The Plaintiff visited the Defendant's website over the past year. The Defendant owns and operates the following website: www.zillow.com.[BN] The Plaintiff is represented by: Joshua B. Swigart (SBN 225557) SWIGART LAW GROUP, APC 2221 Camino Del Rio South, Suite 308 San Diego, CA 92108 Phone: 866-219-3343 Fax: 866-219-8344 Email: josh@swigartlawgroup.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Phone: 619-222-7429 Email: DanielShay@TCPAFDCPA.com [*] Class Action Suits Against Food Cos. Over False Ads Discussed ----------------------------------------------------------------- Abraham Jewett at consumers have been keeping an eye on what is going in their kitchen cupboards and pantries this month with complaints filed against food manufacturers including Coca-Cola, Schwan's, Kellogg and ConAgra. Class action lawsuits against the food companies have generally revolved around claims of false advertising with serving size amounts and ingredients topping the list of complaints from consumers. Schwan's accused of misleading consumers about butter content of Mrs. Smith's frozen apple pies Schwan's was one food manufacturer accused of false advertising this month with a consumer arguing the company misleads customers about the butter content of its Mrs. Smith's frozen apple pies. The consumer argues that, through statements on the product's front packaging, Schwan's falsely represents that butter is the main shortening ingredient for the frozen apple pies when it is actually palm oil. Further, the consumer claims the amount of butter in the Mrs. Smith's frozen apple pies is "negligible" and that the product even contains more water, soybean oil and salt. Schwan's is accused of charging a higher price for the Mrs. Smith's frozen apple pies than it otherwise would be able to if not for its alleged misrepresentations about their overall butter content. Coca-Cola faces claims it mislead consumers into believing dragon-fruit Fanta is naturally flavored Coca-Cola also faced false advertising claims this month by a consumer arguing the company misleads consumers by marketing that its dragon-fruit flavored Fanta is made entirely with all natural flavors. The consumer behind the complaint argues Coca-Cola's dragon-fruit flavored Fanta contains DL-Malic Acid, which they allege is an artificial ingredient used to mimic the flavor of dragon fruit. "Unbeknownst to consumers, the ingredient list does not disclose that this malic acid is an artificial ingredient which imparts dragon fruit flavoring to the Product," the Coca-Cola class action states. Coca-Cola is accused of selling the dragon-fruit flavored Fanta at a higher price and volume than it otherwise would be able to if consumers knew the soda allegedly did not actually contain all natural flavors. In other food class action news, consumers filed a pair of class action lawsuits against ConAgra this month, meanwhile, over claims revolving around the way it marketed its Log Cabin brand pancake mix and Bigs brand Chile Limón sunflower seeds. In the case of the Log Cabin brand pancake mix, a consumer argued ConAgra falsely advertised the product as natural and a good source of fiber. The consumer behind the class action lawsuit claims the Log Cabin pancake mix cannot be natural since it contains sodium bicarbonate, also known as baking soda, which they claim is not made in a natural process. ConAgra is also accused of falsely advertising that the pancake mix is a good source of fiber with the consumer arguing that the product only contains 1g of fiber per serving and alleging it is not enough to warrant the claim. The consumer behind the class action lawsuit revolving around ConAgra's Chile Limón sunflower seeds, meanwhile, claims the company misleads consumers into believing the product contains no artificial flavors. ConAgra is accused of using pictures of a fresh lime with a chili pepper red background on the label for the product to make consumers believe it is made with and gets its flavor from natural ingredients. The consumer argues that, in reality, the product contains the artificial ingredient DL-Malic Acid rather than the naturally occurring L-Malic Acid. ConAgra also overcame false advertising claims this month, with a federal judge in Illinois tossing a complaint alleging the company deceived consumers into believing it made its Snack Pack pudding with real milk. The consumer behind the class action lawsuit argued that ConAgra was being deceptive since the Snack Pack pudding products labeled as "Made With Real Milk" actually contained skim milk. The judge overseeing the complaint ruled, however, that the consumer had failed to prove that ConAgra had been deceptive or that a reasonable consumer would take a "Made With Real Milk" label as meaning it contained whole milk. Kellogg accused of exaggerating amount of whole grains in its Harvest Wheat Toasteds crackers Kellogg also was hit with a class action lawsuit this month over claims the company falsely implies that its Harvest Wheat Toasteds crackers have a higher total whole grain content than they actually do. The consumer behind the class action lawsuit argues Kellogg's misleads consumers by labeling them "Harvest Wheat" and by packaging them in a dark brown box with pictures of crackers that have pieces of grain visible on them. The consumer argues Kellogg's Harvest Wheat Toasteds crackers contain a "negligible" amount of whole grains when compared to the amount of refined grains the product has. Also this month, Kellogg beat separate claims that it misleadingly labeled some of its Morningstar Farms brand meatless products as "veggie," causing consumers to believe they were mainly or entirely made from vegetables. The judge overseeing the complaint ruled that Kellogg used the term "veggie" ambiguously and that it was neither false, misleading or something that would constitute as a misbranding. Kashi earns partial dismissal of claims it misrepresents amount of strawberries in its strawberry breakfast bars Kashi was another food brand able to score at least a partial dismissal of a class action lawsuit with a federal judge in Illinois trimming several claims from a complaint alleging the company misrepresented the ingredients of its "Ripe Strawberry" Soft Baked Breakfast Bars. A consumer behind the food class action lawsuit accused Kashi of misrepresenting the amount of actual strawberries the strawberry breakfast bars contain through allegedly misleading packaging. The judge overseeing the complaint dismissed claims of breach of warranty, negligent misrepresentation and common law fraud from the complaint. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***