/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/220930.mbx C L A S S A C T I O N R E P O R T E R Friday, September 30, 2022, Vol. 24, No. 190 Headlines 3M COMPANY: Deardorff Sues Over Exposure to Toxic Foams & Chemicals 3M COMPANY: Dinapoli Sues Over Exposure to Toxic Film-Forming Foams 3M COMPANY: Fredenburg Sues Over Exposure to Toxic Chemicals 3M COMPANY: Gundrum Sues Over Exposure to Toxic Foams & Chemicals 3M COMPANY: Schroeder Sues Over Exposure to Toxic Foams ACNY DEVELOPERS: Faces Castro Wage-and-Hour Suit in S.D.N.Y. AFNI INC: Ownes Files Suit in C.D. Illinois ARC AUTOMOTIVE: Tribble Files Suit in N.D. Georgia BARCLAYS PLC: Bids for Lead Plaintiff Appointment Due Nov. 22 BARKBOX INC: Farmer Sues Over Automatic Renewal Subscription Plans BED BATH: Bids for Lead Plaintiff Appointment Due October 24 BOOHOO.COM USA: Agrees to Settle False Sales Suits for $4.75-Mil. BRADLEY UNIVERSITY: Appeals Class Cert. Ruling in Eddlemon Suit BREAKTHROUGH TOWING: CVS, McDonald's Dismissed From Robertson Suit C.R. ENGLAND: Hagest Wage-and-Hour Suit Goes to S.D. California CABLECOM LLC: Court Grants Bid to Dismiss UCL Claim in Slick Suit CALIFORNIA: Savas Files Writ of Certiorari in Union Members' Suit CARSMETOLOGY: Faces Brenen Suit Over Car Detailers' Unpaid Wages CHICK-FIL-A INC: Ukpere Suit Removed to D. New Jersey COMME DES GARCONS: Herrera Sues Over Failure to Pay Overtime COMMERCIAL ACCEPTANCE: Wins Bid for Summary Judgment in Garcia Suit COMPASS GROUP: Underpays Dietician Specialists, Chen Suit Alleges COOPERATIVE REGIONS: Rutigliano Files Suit in S.D. New York CREDIT COLLECTION: Darmon Sues Over Illegal Collection Practices DARCARS OF RAILROAD: Gaska Files Suit in Conn. Super. Ct. DIRECTV LLC: Final Hearing of $17M Deal in TCPA Suit Set Feb. 2023 DRIVER PROVIDER: Arizona Court Grants Salazar's Bid to Strike E.L.F. COSMETICS: Davis Suit Alleges Illegal Biometrics Collection ENVISION PHYSICIAN: Caban Sues Over Unlawful Collection of Debt EQUIFAX INFORMATION: Court Denies Myers' Class Certification Bid EXPRESS DRAIN: Fails to Properly Pay OT Wages, Williams Claims FAST SPONSOR: Adari Partners Sues Over Breaches of Two Contracts FLATIRON CONSTRUCTION: Rodriguez Suit Removed to E.D. California FLORIDA: FAMU Students File Racial Discrimination Class Action FORD MOTOR: Barnes Sues Over Transmission Defect FOSTER GARVEY: Aids TelexFree's Ponzi Scheme, Dos Santos Suit Says FRICKENSCHMIDT FOODS: Court Denies Bid to Transfer Adewol Suit FU QIUMENG FINE ART: Young Files ADA Suit in S.D. New York FUNPLUS INTERNATIONAL: Prado Files Suit in N.D. California GEICO GENERAL INSURANCE: Day Suit Removed to M.D. Florida GUIDEHOUSE MANAGED: Valach FLSA Suit Goes to D. South Carolina INOTIV INC: Oklahoma Police Named Lead Plaintiff in Grobler Suit INTERCONTINENTAL CAPITAL: Faces Dixon FLSA Suit in C.D. California INTERCONTINENTAL HOTELS: Class Action Raises Duty of Care Issues KENTUCKY: Order Partly Granting Cabinet Summary Judgment Upheld KIA AMERICA: Baker Consumer Suit Removed to C.D. California KIA AMERICA: DeKam Sues Over Vehicles' Defective Security System KIN INSURANCE: Raslavich FTSA Suit Removed to M.D. Florida KOPPERS INC: Maryland Court Tosses Bryant Products Liability Suit LASCANA FASHION: Raslavich Sues Over Unsolicited Phone Call Ads LIBERTY MUTUAL: Penegar Appeals Insurance Suit Dismissal LOANCARE LLC: Tederick Sues Over Unfair Debt Collection MANPOWER TEMPORARY: Faces Wage-and-Hour Class Action Lawsuit MARCO'S PIZZA: Boettcher Sues Over Delivery Drivers' Unpaid Wages MCCORMACK CONTRACTING: Resantez Sues Over Failure to Pay OT Wages MDL 2744: FCA's Bid to Decertify Class in Gearshift Suit Denied MOUNTAIN MAN FRUIT: Loadholt Files ADA Suit in S.D. New York NCL CORPORATION: Angelo Sues Over Mismanagement of 401(k) Plan NESTLE USA: Coleman Sues Over Coffee Creamer's "2X More" Label NEW YORK CITY: Bid for Class Certification in Allen Suit Denied NFL ENTERPRISES: Rhode Island Court Narrows Claims in Louth Suit NIO INC: Faces Bohonok Suit Over Share Price Drop NN INC: Hearing of $9.5M Deal in Securities Suit Set on Dec. 1 PAYPAL INC: Kass Appeals Denial of Bid to File Second Amended Suit RED PAYMENTS: E.D. New York Grants Bid to Dismiss Roller FCRA Suit SAN DIEGO GAS: Wins Bid to Compel Arbitration in Radcliff Suit SINGTEL OPTUS: Slater & Gordon Mulls Class Action Over Data Breach STATE FARM: Averts Class Action Over Lowball DV Settlements SUPERIOR WALL: Hernandez Files Suit Over Failure to Pay OT Wages TAPESTRY INC: Gomez FTSA Suit Removed to M.D. Florida UNION PACIFIC: Nebraska Court Denies Bid to Strike in Baker Suit UNION PACIFIC: Nebraska Court Grants Bid to Dismiss in Meza Suit UNITED STATES: Birdbear's Bid for Partial Summary Judgment Denied VIRTUAL DINING: Raslavich Sues Over Unsolicited Phone Call Ads WAITR HOLDINGS: Court Dismisses Shareholder Class Action Asbestos Litigation ASBESTOS UPDATE: Hess Creditors Seeks Dismissal of Bankruptcy Case ASBESTOS UPDATE: Imerys Insurers Files Motion to Toss Bankruptcy ********* 3M COMPANY: Deardorff Sues Over Exposure to Toxic Foams & Chemicals ------------------------------------------------------------------- Andrew Deardorff, and other similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS, INC., AMEREX CORPORATION, ARCHROMA U.S., INC., ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT CO., CARRIER GLOBAL CORPORATION, CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC., CHEMICALS, INC., CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA, INC., DEEPWATER CHEMICALS, INC., DU PONT DE NEMOURS, INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION, E.I. DUPONT DE NEMOURS & COMPANY, KIDDE-FENWAL, INC., KIDDE PLC, NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE CHEMOURS COMPANY, TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE Interlogix, Inc.), Case No. 2:22-cv-02965-RMG (D.S.C., Sept. 2, 2022), is brought for damages for personal injury resulting from exposure to aqueous film-forming foams ("AFFF") containing the toxic chemicals collectively known as per and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related chemicals including those that degrade to PFOA and/or PFOS. AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. The Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF with knowledge that it contained highly toxic and bio persistent PFASs, which would expose end users of the product to the risks associated with PFAS. Further, the Defendants designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold and/or otherwise handled and/or used underlying chemicals and/or products added to AFFF which contained PFAS for use in firefighting. PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. PFAS are highly toxic and carcinogenic chemicals. Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans. The Defendants' PFAS-containing AFFF products were used by the Plaintiff in their intended manner, without significant change in the products' condition. Plaintiff was unaware of the dangerous properties of the Defendants' AFFF products and relied on the Defendants' instructions as to the proper handling of the products. Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF products caused Plaintiff to develop the serious medical conditions and complications alleged herein. Through this action, the Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to the Defendants' AFFF products at various locations during the course of Plaintiff's training and firefighting activities. Plaintiff further seeks injunctive, equitable, and declaratory relief arising from the same, says the complaint. The Plaintiff regularly used, and was thereby directly exposed to, AFFF in training and to extinguish fires during his working career as a military and/or civilian firefighter and was diagnosed with kidney cancer as a result of exposure to the Defendants' AFFF products. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Phone: 631-600-0000 Facsimile: 631-543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 3M COMPANY: Dinapoli Sues Over Exposure to Toxic Film-Forming Foams ------------------------------------------------------------------- Nicholas Dinapoli, and other similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS, INC., AMEREX CORPORATION, ARCHROMA U.S., INC., ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT CO., CARRIER GLOBAL CORPORATION, CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC., CHEMICALS, INC., CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA, INC., DEEPWATER CHEMICALS, INC., DU PONT DE NEMOURS, INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION, E.I. DUPONT DE NEMOURS & COMPANY, KIDDE-FENWAL, INC., KIDDE PLC, NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE CHEMOURS COMPANY, TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE Interlogix, Inc.), Case No. 2:22-cv-02966-RMG (D.S.C., Sept. 2, 2022), is brought for damages for personal injury resulting from exposure to aqueous film-forming foams ("AFFF") containing the toxic chemicals collectively known as per and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related chemicals including those that degrade to PFOA and/or PFOS. AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. The Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF with knowledge that it contained highly toxic and bio persistent PFASs, which would expose end users of the product to the risks associated with PFAS. Further, the Defendants designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold and/or otherwise handled and/or used underlying chemicals and/or products added to AFFF which contained PFAS for use in firefighting. PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. PFAS are highly toxic and carcinogenic chemicals. Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans. The Defendants' PFAS-containing AFFF products were used by the Plaintiff in their intended manner, without significant change in the products' condition. Plaintiff was unaware of the dangerous properties of the Defendants' AFFF products and relied on the Defendants' instructions as to the proper handling of the products. Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF products caused Plaintiff to develop the serious medical conditions and complications alleged herein. Through this action, the Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to the Defendants' AFFF products at various locations during the course of Plaintiff's training and firefighting activities. Plaintiff further seeks injunctive, equitable, and declaratory relief arising from the same, says the complaint. The Plaintiff regularly used, and was thereby directly exposed to, AFFF in training and to extinguish fires during his working career as a military and/or civilian firefighter and was diagnosed with prostate cancer as a result of exposure to the Defendants' AFFF products. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Phone: 631-600-0000 Facsimile: 631-543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 3M COMPANY: Fredenburg Sues Over Exposure to Toxic Chemicals ------------------------------------------------------------ Moody Fredenburg, and other similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS, INC., AMEREX CORPORATION, ARCHROMA U.S., INC., ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT CO., CARRIER GLOBAL CORPORATION, CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC., CHEMICALS, INC., CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA, INC., DEEPWATER CHEMICALS, INC., DU PONT DE NEMOURS, INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION, E.I. DUPONT DE NEMOURS & COMPANY, KIDDE-FENWAL, INC., KIDDE PLC, NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE CHEMOURS COMPANY, TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE Interlogix, Inc.), Case No. 2:22-cv-02970-RMG (D.S.C., Sept. 2, 2022), is brought for damages for personal injury resulting from exposure to aqueous film-forming foams ("AFFF") containing the toxic chemicals collectively known as per and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related chemicals including those that degrade to PFOA and/or PFOS. AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. The Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF with knowledge that it contained highly toxic and bio persistent PFASs, which would expose end users of the product to the risks associated with PFAS. Further, the Defendants designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold and/or otherwise handled and/or used underlying chemicals and/or products added to AFFF which contained PFAS for use in firefighting. PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. PFAS are highly toxic and carcinogenic chemicals. Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans. The Defendants' PFAS-containing AFFF products were used by the Plaintiff in their intended manner, without significant change in the products' condition. Plaintiff was unaware of the dangerous properties of the Defendants' AFFF products and relied on the Defendants' instructions as to the proper handling of the products. Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF products caused Plaintiff to develop the serious medical conditions and complications alleged herein. Through this action, the Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to the Defendants' AFFF products at various locations during the course of Plaintiff's training and firefighting activities. Plaintiff further seeks injunctive, equitable, and declaratory relief arising from the same, says the complaint. The Plaintiff regularly used, and was thereby directly exposed to, AFFF in training and to extinguish fires during his working career as a military and/or civilian firefighter and was diagnosed with prostate cancer as a result of exposure to the Defendants' AFFF products. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Phone: 631-600-0000 Facsimile: 631-543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 3M COMPANY: Gundrum Sues Over Exposure to Toxic Foams & Chemicals ----------------------------------------------------------------- Rynard Gundrum, and other similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS, INC., AMEREX CORPORATION, ARCHROMA U.S., INC., ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT CO., CARRIER GLOBAL CORPORATION, CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC., CHEMICALS, INC., CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA, INC., DEEPWATER CHEMICALS, INC., DU PONT DE NEMOURS, INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION, E.I. DUPONT DE NEMOURS & COMPANY, KIDDE-FENWAL, INC., KIDDE PLC, NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE CHEMOURS COMPANY, TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE Interlogix, Inc.), Case No. 2:22-cv-02968-RMG (D.S.C., Sept. 2, 2022), is brought for damages for personal injury resulting from exposure to aqueous film-forming foams ("AFFF") containing the toxic chemicals collectively known as per and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related chemicals including those that degrade to PFOA and/or PFOS. AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. The Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF with knowledge that it contained highly toxic and bio persistent PFASs, which would expose end users of the product to the risks associated with PFAS. Further, the Defendants designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold and/or otherwise handled and/or used underlying chemicals and/or products added to AFFF which contained PFAS for use in firefighting. PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. PFAS are highly toxic and carcinogenic chemicals. Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans. The Defendants' PFAS-containing AFFF products were used by the Plaintiff in their intended manner, without significant change in the products' condition. Plaintiff was unaware of the dangerous properties of the Defendants' AFFF products and relied on the Defendants' instructions as to the proper handling of the products. Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF products caused Plaintiff to develop the serious medical conditions and complications alleged herein. Through this action, the Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to the Defendants' AFFF products at various locations during the course of Plaintiff's training and firefighting activities. Plaintiff further seeks injunctive, equitable, and declaratory relief arising from the same, says the complaint. The Plaintiff regularly used, and was thereby directly exposed to, AFFF in training and to extinguish fires during his working career as a military and/or civilian firefighter and was diagnosed with bladder cancer as a result of exposure to the Defendants' AFFF products. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Phone: 631-600-0000 Facsimile: 631-543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 3M COMPANY: Schroeder Sues Over Exposure to Toxic Foams ------------------------------------------------------- Terry Schroeder, and other similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS, INC., AMEREX CORPORATION, ARCHROMA U.S., INC., ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT CO., CARRIER GLOBAL CORPORATION, CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC., CHEMICALS, INC., CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA, INC., DEEPWATER CHEMICALS, INC., DU PONT DE NEMOURS, INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION, E.I. DUPONT DE NEMOURS & COMPANY, KIDDE-FENWAL, INC., KIDDE PLC, NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE CHEMOURS COMPANY, TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE Interlogix, Inc.), Case No. 2:22-cv-02967-RMG (D.S.C., Sept. 2, 2022), is brought for damages for personal injury resulting from exposure to aqueous film-forming foams ("AFFF") containing the toxic chemicals collectively known as per and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related chemicals including those that degrade to PFOA and/or PFOS. AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. The Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF with knowledge that it contained highly toxic and bio persistent PFASs, which would expose end users of the product to the risks associated with PFAS. Further, the Defendants designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold and/or otherwise handled and/or used underlying chemicals and/or products added to AFFF which contained PFAS for use in firefighting. PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. PFAS are highly toxic and carcinogenic chemicals. Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans. The Defendants' PFAS-containing AFFF products were used by the Plaintiff in their intended manner, without significant change in the products' condition. Plaintiff was unaware of the dangerous properties of the Defendants' AFFF products and relied on the Defendants' instructions as to the proper handling of the products. Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF products caused Plaintiff to develop the serious medical conditions and complications alleged herein. Through this action, the Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to the Defendants' AFFF products at various locations during the course of Plaintiff's training and firefighting activities. Plaintiff further seeks injunctive, equitable, and declaratory relief arising from the same, says the complaint. The Plaintiff regularly used, and was thereby directly exposed to, AFFF in training and to extinguish fires during his working career as a military and/or civilian firefighter and was diagnosed with prostate cancer as a result of exposure to the Defendants' AFFF products. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Phone: 631-600-0000 Facsimile: 631-543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 ACNY DEVELOPERS: Faces Castro Wage-and-Hour Suit in S.D.N.Y. ------------------------------------------------------------ ANTONIO CASTRO, individually and on behalf of all others similarly situated, Plaintiff v. ACNY DEVELOPERS INC., DEFALCO CONSTRUCTION INC., WILLIAM COOK, and MICHAEL DEFALCO, jointly and severally, Defendants, Case No. 1:22-cv-07949 (S.D.N.Y., September 16, 2022) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law including failure to pay appropriate minimum wages, failure to pay overtime wages, failure to timely pay wages, and failure to comply with wage notice provisions. ACNY Developers Inc. is a construction company, with its office in New York, New York. DeFalco Construction Inc. is a construction company, with its office in Bronx, New York. [BN] The Plaintiff is represented by: Justin A. Zeller, Esq. LAW OFFICE OF JUSTIN A. ZELLER, P.C. 277 Broadway, Suite 408 New York, NY 10007-2036 Telephone: (212) 229-2249 Facsimile: (212) 229-2246 E-mail: jazeller@zellerlegal.com AFNI INC: Ownes Files Suit in C.D. Illinois ------------------------------------------- A class action lawsuit has been filed against Afni, Inc. The case is styled as Clara Ownes, on behalf of herself and all other similarly situated v. Afni, Inc., Case No. 1:22-cv-01297-MMM-JEH (C.D. Ill., Sept. 2, 2022). The nature of suit is stated Other Personal Property. Afni -- https://afni.com/ -- is a global contact center company that is based in the US and has clients all over the world.[BN] The Plaintiff is represented by: Mary C. Turke, Esq. TURKE & STRAUSS LLP 613 Williamson St., Suite 201 Madison, WI 53703 Phone: (608) 237-1775 Fax: (608) 509-4423 Email: mary@turkestrauss.com ARC AUTOMOTIVE: Tribble Files Suit in N.D. Georgia -------------------------------------------------- A class action lawsuit has been filed against Arc Automotive, Inc., et al. The case is styled as Jordan Tribble, individually and on behalf of all others similarly situated v. Arc Automotive, Inc., Kia Corporation, Kia America, Inc., Mobis Parts America, LLC, Hyundai Mobis Co., Ltd., Case No. 1:22-cv-03573-ELR (N.D. Ga., Sept. 2, 2022). The nature of suit is stated Contract Product Liability for Motor Vehicle Product Liability. ARC Automotive, Inc. -- http://www.arcautomotive.com/-- is a global manufacturer that produces a full complement of inflators for automotive airbag applications.[BN] The Plaintiff is represented by: H. Clay Barnett, III, Esq. Thomas P. Willingham, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 2839 Paces Ferry Road SE, Suite 400 Atlanta, GA 30339 Phone: (334) 269-2343 Fax: (334) 954-7555 Email: clay.barnett@beasleyallen.com tom.willingham@beasleyallen.com - and - James Mitchell Williams, Esq. BEASLEY ALLEN-AL 218 Commerce Street Montgomery, AL 36104 Phone: (334) 269-2343 Fax: (334) 954-7555 Email: Mitch.Williams@beasleyallen.com - and - W. Daniel Miles, III, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES-AL P.O. Box 4160 218 Commerce Street Montgomery, AL 36103-4160 Phone: (334) 269-2343 Email: Dee.Miles@BeasleyAllen.com BARCLAYS PLC: Bids for Lead Plaintiff Appointment Due Nov. 22 ------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Sept. 26 disclosed that purchasers or acquirers of Barclays PLC (NYSE: BCS) American Depositary Receipts ("ADRs") on a U.S. open market between February 18, 2021 and March 25, 2022, inclusive (the "Class Period") have until November 22, 2022 to seek appointment as lead plaintiff in the Barclays class action lawsuit. The Barclays class action lawsuit -- captioned City of North Miami Beach Police Officers' and Firefighters' Retirement Plan v. Barclays PLC, No. 22-cv-08172 (S.D.N.Y.) -- charges Barclays and certain of its top executives with violations of the Securities Exchange Act of 1934. If you suffered substantial losses and wish to serve as lead plaintiff of the Barclays class action lawsuit, please provide your information here: https://www.rgrdlaw.com/cases-barclays-plc-class-action-lawsuit-bcs.html You can also contact attorney J.C. Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. CASE ALLEGATIONS: The Barclays class action lawsuit alleges that, during the Class Period, Barclays internal controls over financial reporting were not effective, and there was a material weakness in those controls, due to the fact that starting on February 18, 2021, Barclays Bank PLC ("Barclays Bank"), a wholly owned subsidiary of Barclays, issued and sold approximately $17.64 billion in unregistered securities over and above the maximum amount of securities registered in two Barclays Bank shelf registration statements, and the fact that the over- issuance was not immediately discovered. The over-issuance and sale of these unregistered securities was also a violation of U.S. securities laws and/or U.S. Securities and Exchange Commission ("SEC") regulations, and subjected Barclays to legal liability and claims of rescission. The Barclays class action lawsuit further alleges that Barclays 2021 quarterly earnings releases and the 2021 Annual Report on Form 20-F, filed with the SEC on February 23, 2022 were also materially false and misleading, or failed to disclose material information because, among other reasons: (i) they failed to disclose the over-issuance, and that Barclays Bank was violating U.S. securities laws and/or SEC regulations, subjecting Barclays to legal liability and claims of rescission; and (ii) as a result, Barclays' reported litigation and conduct expenses and total operating expenses were understated, and Barclays' reported net profit was overstated. On March 28, 2022, Barclays announced the over-issuance for the first time, that Barclays Bank had issued approximately $15.2 billion in unregistered securities under an August 2019 shelf registration statement, that Barclays Bank would commence a rescission offer for those unregistered securities, and that Barclays expected the rescission losses to be c.GBP450m. On this news, the price of Barclays ADRs declined by more than 10%. Then, on July 28, 2022, Barclays announced for the first time that Barclays Bank had also over-issued unregistered securities under a second Barclays Bank shelf registration statement. Barclays also informed investors that Barclays had provisioned "GBP1,592m [approximately $1.940 billion] (December 2021: GBP220m) related to the over-issuance of structured notes and GBP165m [approximately $201 million] (December 2021: nil) related to liabilities that could be incurred arising out of ongoing discussions in respect of a potential SEC resolution." On this news, the price of Barclays ADRs declined an additional 5.2%, further damaging investors. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased or acquired Barclays ADRs on a U.S. open market during the Class Period to seek appointment as lead plaintiff. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the Barclays class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Barclays class action lawsuit. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff of the Barclays class action lawsuit. ABOUT ROBBINS GELLER: Robbins Geller is one of the world's leading complex class action firms representing plaintiffs in securities fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class Action Services Top 50 Report for recovering nearly $2 billion for investors last year alone -- more than triple the amount recovered by any other plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller is one of the largest plaintiffs' firms in the world and the Firm's attorneys have obtained many of the largest securities class action recoveries in history, including the largest securities class action recovery ever -- $7.2 billion -- in In re Enron Corp. Sec. Litig. Please visit the following page for more information: https://www.rgrdlaw.com/services-litigation-securities-fraud.html Attorney advertising. Past results do not guarantee future outcomes. Services may be performed by attorneys in any of our offices. Contacts: Robbins Geller Rudman & Dowd LLP 655 W. Broadway, Suite 1900, San Diego, CA 92101 J.C. Sanchez, 800-449-4900 jsanchez@rgrdlaw.com [GN] BARKBOX INC: Farmer Sues Over Automatic Renewal Subscription Plans ------------------------------------------------------------------ Amber Farmer, individually and on behalf of all others similarly situated v. BARKBOX, INC., Case No. 5:22-cv-01574-SSS-SHK (C.D. Cal., Sept. 1, 2022), is brought against the Defendant's violation of the Automatic Renewal Law (the ARL) with regards to their automatic renewal and recurring subscription plans. To protect Californians from this practice, California passed the ARL. The ARL requires companies who sign consumers up for automatically renewing purchases to provide "clear and conspicuous" disclosures about the autorenewal plan and obtain "affirmative consent" to enroll consumers. This protects consumers from being tricked into signing up for recurring shipments and charges. Once a consumer is tricked into signing up and paying for an initial order, the harm is done, and the law does not put any burden on consumers to reject shipments or cancel the plan. If a company violates the ARL, all recurring shipments it makes to consumers are deemed "unconditional gifts." Consumers have no obligation to return the recurring shipments or cancel, even after they discover that they have been enrolled in an autorenewal plan. BarkBox offers a one-month plan, a 6-month plan and a 12-month plan. All plans automatically renew. BarkBox does not provide clear and conspicuous disclosures or obtain affirmative consent before enrolling consumers for recurring subscription plans. Consumers like Plaintiff are being tricked into signing up for recurring plans, wrongly thinking that they are only signing up for the stated term (for example, for 6 months). Consumers are then wrongly charged for recurring shipments that are "unconditional gifts" under the law. In mid-2021, Ms. Farmer was automatically renewed for another 6-month subscription. She continued receiving boxes (and getting charged for them). When she realized she had been automatically renewed, she attempted to log in to her account to cancel. But her log-in was not working. Because cancellation was a hassle and her dog was using the boxes, she resigned herself to keep receiving and paying for boxes. This is not something she would have agreed to up front if BarkBox had complied with the ARL. After Ms. Farmer was illegally enrolled in an automatically renewing subscription, by operation of the ARL, all boxes were unconditional gifts. She was automatically renewed again at the end of 2021, and again in mid-2022. Because all of these renewals were illegal under the ARL, she had no "obligation whatsoever" to return the boxes or cancel, and BarkBox had no legal basis to continue to charge for any shipped boxes. In August of 2022, Ms. Farmer was reviewing her subscriptions and realized how long she had been automatically paying for Bark Boxes. Although she had no obligation under the law to do so, at this point she reached out to BarkBox online about resetting her log-in so she could cancel. Ms. Farmer faces an imminent threat of future harm. Her dog likes the BarkBox products and she would buy a (limited term, non-renewing) subscription again if she could feel sure that BarkBox would not illegally auto-renew her. But without an injunction, she cannot trust that BarkBox will comply with the ARL, says the complaint. The Plaintiff signed up for a BarkBox subscription, on the BarkBox website, in January of 2021. BarkBox sells monthly subscription boxes of dog toys, treats, and chews.[BN] The Plaintiff is represented by: Jonas B. Jacobson, Esq. Simon Franzini, Esq. DOVEL & LUNER, LLP 201 Santa Monica Blvd., Suite 600 Santa Monica, CA 90401 Phone: (310) 656-7066 Facsimile: (310) 656-7069 Email: jonas@dovel.com simon@dovel.com BED BATH: Bids for Lead Plaintiff Appointment Due October 24 ------------------------------------------------------------ Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of Bed Bath & Beyond, Inc. (NASDAQ: BBBY), Dingdong (Cayman) Ltd. (NYSE: DDL), Stitch Fix, Inc. (NASDAQ: SFIX), and Coupang, Inc. (NYSE: CPNG). Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided. Bed Bath & Beyond, Inc. (NASDAQ: BBBY) Class Period: March 25, 2022 - August 18, 2022 Lead Plaintiff Deadline: October 24, 2022 On March 6, 2022, through his investment firm RC Ventures LLC, Ryan Cohen, the billionaire co-founder of Chewy Inc. who also serves as chairman of GameStop Corp., sent a letter to Bed Bath & Beyond's board which announced that he owned a 9.8% stake in Bed Bath & Beyond and in which he criticized the Company's management. On this news Bed Bath & Beyond stock to closed 34% higher on March 7, 2022 compared to its close on March 4, 2022, the previous trading day, on extremely heavy trading volume. On March 25, 2022, Bed Bath & Beyond added three new directors appointed by Ryan Cohen's investment firm, RC Ventures LLC. On August 15, 2022, Ryan Cohen, through his investment firm RC Ventures LLC, announced in an SEC filing purchases of over one million January 2023 call options with exercise prices at $60, $75, and $80—significantly higher than Bed Bath & Beyond shares were trading. On this news, Bed Bath & Beyond stock closed 29% higher on August 16, 2022 compared to its close on August 15, 2022, on extremely heavy trading volume. Then, on August 18, 2022, Ryan Cohen, through his investment firm RC Ventures LLC, announced that he would sell his entire stake in Bed Bath & Beyond. Also on August 18, 2022, Bloomberg published an article entitled "Bed Bath & Beyond Taps Kirkland & Ellis for Help Addressing Debt Load" which revealed the Company hired a law firm for help with its debt. On this news, Bed Bath & Beyond shares fell $4.53 per share, or 19%, to close at $18.55 per share on August 18, 2022, on extremely heavy trading volume. Bed Bath & Beyond shares continued to drop on August 19, 2022, falling $7.52 per share, or 40%, from its August 18, 2022 close, to close at $11.03 per share, on extremely heavy trading volume. On August 19, 2022, Bed Bath & Beyond stock plunged to a new low of $9.68, dropping another 52.6% from the previous day. Bed Bath & Beyond's stock price continued to decline over the next two trading days, falling an additional 16.23% to close at $9.24 per share on August 22, 2022, and falling another 4.98% to close at $8.78 on August 23, 2022, dropping over 70% from August 17's high price of $30 per share in five trading days after Defendants dumped their shares. Insiders profited at least $110 million from their Insider sales from August 16 to August 17, 2022. For more information on the Bed Bath & Beyond class action go to: https://bespc.com/cases/BBBY Dingdong (Cayman) Ltd. (NYSE: DDL) Class Period: Pursuant to the Company's June 29, 2021 IPO Lead Plaintiff Deadline: October 24, 2022 Dingdong purports to be a leading and the fastest growing on-demand e-commerce company in China. Dingdong conducted its IPO in New York, and its ADS are listed on the New York Stock Exchange ("NYSE") under the ticker symbol "DDL." In June 2021, as part of Dingdong's IPO, Defendants issued approximately 4.07 million ADS to the investing public at $23.50 per ADS, all pursuant to the Registration Statement. According to the Registration Statement, Dingdong's mission is to "make fresh groceries as available as running water to ever household." To achieve this end, Dingdong has purportedly "embraced a user-centric philosophy" that is committed to "directly providing users and householders… fresh produce, mean and seafood and other daily necessities through a convenient and excellent shopping experience supported by an extensive self-operated frontline fulfillment grid [emphasis added]." Critically, Dingdong differentiates itself from its competitors by claiming to "procure . . . products primarily form direct upstream sources such as farms and cooperatives," "apply stringent quality control across [its] entire supply chain to ensure product quality to [its] users," and rely on its "frontline fulfillment grid and robust, digitalized fulfillment capabilities… [to] deliver… orders within 30 minutes [emphasis added]." Unbeknownst to prospective investors, however, the Registration Statement misrepresented Dingdong's commitment to ensuring the safety and quality of the food it distributes to the market. In fact, Dingdong was actively flouting its food safety responsibilities, selling, for example, dead fish to customers while marketing it as live fish and recycling vegetables that were past their sell-by date. In other words, Dingdong was no better at providing or assuring access to "fresh" groceries than the supermarkets, traditional Chinese wet markets, or traditional e-commerce platforms it repeatedly claimed to be displacing. The foregoing conduct subjected Dingdong to increased risk of regulatory and/or governmental scrutiny and enforcement, all of which, once revealed, were likely to (and did) negatively impact Dingdong's business, operations, and reputation. By omitting these facts, ADS purchasers were unable to adequately assess the value of the shares offered in connection with the IPO, and thus purchased their ADS without material information and to their detriment. According to the Complaint, the Company's public statements throughout the IPO period were false and materially misleading. When the market learned the truth about Dingdong, investors suffered damages. For more information on the Dingdong class action go to: https://bespc.com/cases/DDL Stitch Fix, Inc. (NASDAQ: SFIX) Class Period: December 8, 2020 - March 8, 2022 Lead Plaintiff Deadline: October 25, 2022 Stitch Fix sells a range of apparel, shoes, and accessories through its website and mobile application. Traditionally, Stitch Fix sold products as a "Fix," through which the customer would receive a monthly box of items chosen by a personal stylist. The customer would not know specifically which items they were receiving but would have the option to return whichever items it did not want. The customer paid a $20 "styling fee" per Fix, and that fee would be applied to any of the items the customer chose to buy. Prior to the Class Period, in 2019, Stitch Fix announced a new direct-buy retail component, eventually named "Freestyle." The Freestyle program allowed customers to shop the site for specific products, giving the customer more control over what items they received, but also removing the curation element that differentiated Stitch Fix from other e-retailers. The Freestyle program was first made available to a subset of existing Stitch Fix customers in 2020, and incrementally rolled out to all existing customers in early 2021. In September 2021, the Freestyle program was formally launched to new customers. On December 7, 2021, Stitch Fix announced a loss for its first quarter of 2022, cut its full-year revenue projections, and admitted, for the first time, that, as a result of the "expansion into Freestyle," the Company "may experience short-term impacts of cannibalization." As a result of these disclosures, Stitch Fix's share price declined by $5.97 per share, or 24%, from a closing price of $24.97 per share on December 7, 2021, to a closing price of $19.00 per share on December 8, 2021. However, Stitch Fix continued to assure investors that this was a short-term problem. Then, on March 8, 2022, when Stitch Fix reported earnings for its second quarter of 2022, the Company offered a weak outlook for its third quarter of 2022 and cut its guidance for the full year. Stitch Fix attributed the guidance cut to "friction" between the Freestyle and Fix businesses. As a result of this disclosure, the price of Stitch Fix stock declined by $0.67 per share, or 6%, from $11.01 per share to $10.34 per share. The complaint alleges that, throughout the Class Period, Stitch Fix made numerous false and misleading statements to investors concerning the synergy between the Company's Fix and Freestyle programs, and repeatedly denied claims that the Freestyle program could cannibalize the Company's legacy Fix business. Specifically, Stitch Fix repeatedly assured investors that the Company's Freestyle business was "an additive experience" and "complimentary" to the Fix business, that "the combination of those two things will allow us to address many more types of clients," and that "we see solid growth in both sides of the business." In truth, throughout the Class Period, Stitch Fix concealed the fact that these programs were not complementary or additive. Stitch Fix knew that the Freestyle program would be much preferred to the Company's original Fix model, and that the Freestyle program would inevitably cannibalize the Company's legacy Fix business. As a result of these misrepresentations and omissions, Stitch Fix's Class A common stock traded at artificially inflated prices during the Class Period. For more information on the Missfresh class action go to: https://bespc.com/cases/SFIX Coupang, Inc. (NYSE: CPNG) Class Period: Pursuant to the Company's March 11, 2021 IPO Lead Plaintiff Deadline: October 25, 2022 On or around March 11, 2021, Coupang conducted its initial public offering ("IPO"), and the company sold 130 million shares for $35.00. Coupang reported that its annual Total Revenue rose from $11.96 billion in 2020 to over $18.4 billion in 2021, and that its Net Loss increased from $474.89 million in 2020 to over $1.54 billion in 2021. Since the IPO, Coupang shares have declined to as low as $10.51 per share on June 13, 2022. The lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose that: (1) Coupang was engaged in improper anti-competitive practices with its suppliers and other third parties in violation of applicable regulations, including (a) pressuring suppliers to raise prices of products on competing e-commerce platforms to ensure Coupang's prices would be more competitive; (b) coercing suppliers into purchasing advertisements that would benefit Coupang financially; (c) forcing suppliers to shoulder all expenses from sales promotions; and (d) requesting wholesale rebates from suppliers without specifying any terms relating to rebate programs, all of which served to artificially maintain Coupang's lower prices and artificially inflate Coupang's historical revenues and market share; (2) Coupang had improperly adjusted search algorithms and manipulated product reviews on its marketplace platform to prioritize its own private-label branded products over those of other sellers and merchants, to the detriment of consumers, merchants, and suppliers; (3) unbeknownst to its Rocket WOW members, Coupang was selling products to non-member customers at lower prices than those offered to its Rocket WOW members; (4) Coupang subjected its workforce to extreme, unsafe, and unhealthy working conditions; (5) all of the above illicit practices exposed Coupang to a heightened , but undisclosed, risk of reputational and regulatory scrutiny that would harm Coupang's critical relationships with consumers, merchants, suppliers, and the workforce; and (6) Coupang's lower prices, historical revenues, competitive advantages, and growing market share were the result of systemic, improper, unethical, and/or illegal practices, and, thus, unsustainable. For more information on the Coupang class action go to: https://bespc.com/cases/CPNG About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Melissa Fortunato, Esq. (212) 355-4648 investigations@bespc.com www.bespc.com [GN] BOOHOO.COM USA: Agrees to Settle False Sales Suits for $4.75-Mil. ----------------------------------------------------------------- Top Class Actions reports that Boohoo and BoohooMAN, PrettyLittleThing and Nasty Gal agreed to pay up to $4.75 million to resolve three class action lawsuits challenging false sales. The settlement benefits individuals in California who made purchases on the Boohoo website since April 9, 2016, on the PrettyLittleThing website since May 19, 2016, and/or on the Nasty Gas website since March 1, 2017. BooHoo, PrettyLittleThing and NastyGal are online shopping platforms that offer trendy fashion items and accessories. The websites may use reference prices when advertising products. However, according to three class action lawsuits against the fashion companies, the reference prices were not original, regular, retail or former prices. In reality, the websites' reference prices were intentionally inflated in order to dupe customers into thinking they were getting a good deal, the plaintiffs claim. "As a result, customers are deceived into spending money they otherwise would not have spent, purchasing items they otherwise would not have purchased, and/or spending more money for an item than they otherwise would have absent the deceptive marketing," one class action lawsuit contends. Plaintiffs in the three false sale class action lawsuits claim this "scam" violates California consumer protection laws. The defendants haven't admitted any wrongdoing but agreed to pay up to $4.75 million to resolve these allegations. Under the terms of the Boohoo, PrettyLittleThing and Nasty Gal class action settlement, class members can receive one or more gift cards of $10. These gift cards include free shipping valued at $7.28. As such, each gift card benefit is valued at $17.28. The cash fund for the settlement will be used to pay attorneys' fees, court costs, administrative costs and other settlement-related expenses. The deadline for exclusion and objection is Nov. 28, 2022. The final approval hearing for the Boohoo, PrettyLittleThing and Nasty Gal class action settlement is scheduled for Dec. 19, 2022. No claim form is required to benefit from the settlement. Class members who do not exclude themselves will automatically receive their gift card benefit. Who's Eligible The settlement benefits individuals in California who made purchases on the Boohoo website since April 9, 2016, on the PrettyLittleThing website since May 19, 2016, and/or on the Nasty Gas website since March 1, 2017. Potential Award $10 gift card Proof of Purchase Proof of purchase not applicable Exclusion and Objection Deadline 11/28/2022 Case Name Farid Khan v. Boohoo.com USA Inc, et al., Case No. 2:20-cv-03332 GW, in the District Court for the Central District of California Haya Hilton v. Prettylittlething.com USA Inc, et al., Case No.: 2:20-cv-004658 GW, in the District Court for the Central District of California Olivia Lee v. NastyGal.com USA, Inc., et al., Case No.: 2:20-cv-004659 GW, in the District Court for the Central District of California Final Hearing 12/19/2022 Settlement Website BoohooCAPricingSettlement.com Claims Administrator Boohoo/PrettyLittleThing/NastyGal California False Pricing Class Action Settlement Administrator PO Box 5100 Larkspur CA 94977-5100 844-594-2514 Class Counsel Yasin M Almadani ALMADANI LAW Ahmed Ibrahim AI LAW PLC Defense Counsel Ronald W Zdrojeski EVERSHEDS SUTHERLAND (US) LLP [GN] BRADLEY UNIVERSITY: Appeals Class Cert. Ruling in Eddlemon Suit --------------------------------------------------------------- BRADLEY UNIVERSITY filed an appeal from the District Court's class certification ruling in the lawsuit entitled ORION EDDLEMON, individually and on behalf of all others similarly situated v. BRADLEY UNIVERSITY, an Illinois not-for-profit corporation, Case No. 1:20-cv-01264-MMM-JEH, in the U.S. District Court for the Central District of Illinois. The Plaintiff's action arises out of Defendant Bradley's decision during the Spring 2020 Semester to retain the full amount of tuition and full amount of Activity and Course Surcharge Fees paid, despite being unable to provide students, like Plaintiff, with the entire 15 weeks of in-person and on-campus educational services that they agreed to, contracted for, and paid for. The Plaintiff paid for the Spring 2020 tuition, Activity Fee, and Course Surcharge Fees in exchange for in-person and on-campus educational services, experiences, and opportunities as detailed in Bradley's marketing, advertisements, and other public representations. In response to the COVID-19 pandemic, Bradley canceled all in person and on-campus educational services and then transitioned to online only education. Therefore, Plaintiff and the Class did not receive the benefit and services that they bargained for when they paid Bradley tuition, the Activity Fee, and Course Surcharge Fees, says the suit. As reported in the Class Action Reporter on Feb. 11, 2022, the Plaintiff asked the Court to enter an order: 1. certifying the proposed Class pursuant to Rule 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure: -- the Tuition Class "All students and former students of Bradley University who paid, or on whose behalf payment was made for tuition for on-campus classes for the Spring 2020 Semester;" -- the Activity Fee Class "All students and former students of Bradley University who paid, or on whose behalf payment was made, for an Activity Fee for the Spring 2020 Semester;" and -- the Course Surcharge Class "All students and former students of Bradley University who paid, or on whose behalf payment was made for a Course Surcharge Fee for the Spring 2020 Semester;" 2. appointing him as the Class Representative; and 3. appointing his counsel as Class Counsel. On July 22, 2022, Judge Michael M. Mihm granted Plaintiff's Motion for Class Certification as to the Tuition Class and the Activity Fee Class. However, the motion was denied as to the Course Surcharge Fee Class. The Plaintiff's Motion to Appoint Plaintiff as Class Representative was also granted, as well as Plaintiff's Motion to Appoint Plaintiff's counsel as Class Counsel. The appellate case was transferred from Miscellaneous Docket No. 22-8010. The new appellate case is captioned as Bradley University v. Orion Eddlemon, Case No. 22-2560, in the U.S. Court of Appeals for the Seventh Circuit, filed on Sept. 7, 2022.[BN] Defendant-Petitioner BRADLEY UNIVERSITY is represented by: Kara Angeletti, Esq. Tiffany S. Fordyce, Esq. Gregory E. Ostfeld, Esq. GREENBERG TRAURIG, LLP 77 W. Wacker Drive Chicago, IL 60601-0000 Telephone: (312) 456-8400 Plaintiff-Respondent ORION EDDLEMON, individually and on behalf of all others similarly situated, is represented by: Matthew Peterson, Esq. VARNELL & WARWICK, P.A. 1101 E. Cumberland Avenue Tampa, FL 33602 Telephone: (352) 753-8600 BREAKTHROUGH TOWING: CVS, McDonald's Dismissed From Robertson Suit ------------------------------------------------------------------ In the case, OLIVIA ROBERTSON, et al., Plaintiffs v. BREAKTHROUGH TOWING, LLC, et al., Defendants, Case No. 19-10266 (E.D. Mich.), Judge Mark A. Goldsmith of the U.S. District Court for the Eastern District of Michigan, Southern Division, issued an Opinion and Order: a. granting the motions to dismiss filed by (i) CVS Health Corp. and its franchisee Woodward Detroit CVS, LLC (collectively, CVS, (ii) McDonald's Corp., and (iii) McDonald's franchisee Virgirilli Management; b. granting in part and denying in part the City of Detroit's motion for judgment on the pleadings and the City of Hamtramck's motion to dismiss; and c. denying as moot CVS' earlier motion to dismiss. The Plaintiffs filed the class action alleging that a private towing company and its owner engineered a scheme to illegally impound vehicles, charge exorbitant release fees, and bribe others to assist in the effort. The scheme forms the basis of the Plaintiffs' claims brought under 42 U.S.C. Section 1983, and the Racketeer Influenced and Corrupt Organizations Act Claim, 18 U.S.C. 1962(c) (RICO). The Plaintiffs allege that Defendant Breakthrough, a private towing company, implemented a "scheme" through which it illegally towed the vehicles of the Plaintiffs and other similarly situated vehicle owners in Detroit and Hamtramck. They also name as Defendants Breakthrough's owner Michael Dickerson and Breakthrough's "alter ego" Magic Towing LLC (collectively, Breakthrough). Breakthrough's authority to tow vehicles derives from the Michigan Vehicle Code, which allows for the towing of an "abandoned vehicle" -- that is, "a vehicle that has remained on private property without the consent of the owner." A towing agency may take custody of an abandoned vehicle through either of two ways: (i) at the direction of a police agency, Section 257.252a(4), or (ii) at the request of the owner of the private property where the abandoned vehicle is located, Section 257.252a(10). Breakthrough's alleged scheme implicates only the latter scenario; the Plaintiffs do not allege that any Breakthrough impoundment was effected at the request of the police, and they do not deny Detroit and Hamtramck's representations that the municipalities never held towing contracts with Breakthrough or requested its services. The Plaintiffs plead that Breakthrough's tows violated the Code in two ways: (i) Breakthrough purportedly impounded vehicles that were not "abandoned" but in fact were legally parked; for example, some vehicle owners were patronizing the businesses that owned the lots at the times of the tows; and (ii) Breakthrough made tows from private lots that had inadequate signage, which failed to satisfy the property owners' obligation to "post a notice" with specified requirements before authorizing a towing agency to impound a vehicle on their property. They allege that employees of the private party Defendants accepted "bribes" or "kickbacks" in exchange for calling Breakthrough to initiate these illegal tows. The Plaintiffs bring claims against all Defendants under 42 U.S.C. Section 1983, alleging (i) violations of Fourteenth Amendment procedural due process, (ii) violations of the First Amendment, (iii) violations of the Fourth Amendment, (iv) violations of the Eighth Amendment, and (v) civil conspiracy. They also bring a claim under RICO against all the private party Defendants. Before the Court are several motions to dismiss or for judgment on the pleadings filed by two categories of alleged conspirators: (i) private companies from whose parking lots some vehicles were towed, and (ii) municipalities whose police officers allegedly assisted in the tows and violated Michigan's vehicle-impoundment statute as part of the scheme. As an initial matter, Judge Goldsmith opines that the Court has subject matter jurisdiction over the Plaintiffs' federal claims. He then considers the Plaintiffs' claims against the private party Defendants, and then turns to claims against the municipal Defendants. The Plaintiffs assert multiple constitutional claims against CVS, McDonald's, and Virgirilli under 42 U.S.C. Section 1983. Judge Goldsmith holds that these claims cannot stand both because (i) these entities are not state actors, and because (ii) the Plaintiffs do not plausibly allege that these Defendants' policies or customs caused the asserted constitutional violations. To the extent that Breakthrough had an agreement to conspire with police officers, there is no allegation that the private party Defendants joined the deal. If the private parties were indeed engaged in a nefarious kickback scheme, they were "acting independently," not as "willful participants in joint activity with the State or its agents." The Plaintiffs' allegations provide no basis for inferring that the actions of CVS and McDonald's employees can be "fairly attributable to the state." They are not liable under Section 1983. The Plaintiffs' Section 1983 claims fail to reach the private party Defendants for another reason, Judge Goldsmith holds. The Plaintiffs do not attempt to allege that any of McDonald's, Virgirilli, or CVS maintained a policy or custom that caused Plaintiffs' alleged harms make no suggestion that the corporate parents or franchisees maintained a policy of encouraging their employees to personally line their pockets by exploiting the companies' customers. Nor do the Plaintiffs allege that the "moving force" behind their injuries is the companies' failure to train their employees not to accept personal payoffs to facilitate illegal vehicle impoundments. McDonald's, Virgirilli, and CVS cannot be held liable under Section 1983 based only on the supposed actions of their employees. Similarly, Judge Goldsmith finds that the Plaintiffs have failed to plausibly allege that the Defendant corporate entities are liable for their employees' alleged RICO violations. The alleged actions of the private party Defendants' employees cannot plausibly be alleged to have been "taken within the scope of employment, that is, with intent to benefit the employer." There is no merit to the RICO claims against these Defendants. The Plaintiffs have failed to state a claim against the private party Defendants. The motions to dismiss filed by CVS, McDonald's, and Virgirilli are granted. Judge Goldsmith turns to claims against the municipal Defendants, beginning with the procedural due process claim. He finds that they have plausibly stated a procedural due process claim against Detroit, Hamtramck, and the John Doe officers. Because the Plaintiffs have plausibly alleged that the municipal Defendants failed to abide by the process designed to furnish vehicle owners with this notice, the Plaintiffs' procedural due process claim cannot be dismissed at this stage of the proceedings. Further, Breakthrough is not an "arbiter" and has no say in whether a vehicle owner prevails at the hearing. The "neutral arbiter" is the court, and if the court determines that the vehicle impoundment was improper, then the vehicle owner wins the release of his or her bond. The Plaintiffs have no due process claim against the municipal Defendants on this theory. And, at this stage, the Plaintiffs' allegations are "sufficient to state a claim that their due process rights were violated. The Plaintiffs allege that the municipal Defendants violated the First Amendment by conspiring to refuse to provide the notice necessary for a hearing and by conspiring to allow Breakthrough to set excessive bond amounts, thus precluding their access to judicial review. However, they do not cite any authorities to support this claim, instead referring the Court back to arguments made in the context of their due process claims. It is not the court's responsibility to craft winning legal arguments for the parties. This claim is dismissed. The Plaintiffs also bring an Eighth Amendment claim, referring again to their allegations that they were forced to pay excessive bonds to recover their vehicles. Judge Goldsmith understands that the Plaintiffs rely on the Excessive Fines Clause of the Eighth Amendment, which states that "excessive fines" will not be "imposed" -- though the Plaintiffs do not so specify, nor cite any Eighth Amendment case law in support of this argument. To the extent that the Plaintiffs attack the statutory scheme that provides for the payment of bonds linked to towing and storage fees, the purpose of the Code is "not punitive, so it does not implicate the Eighth Amendment." The Plaintiffs have failed to state an Eighth Amendment claim. The Plaintiffs argue that the municipal Defendants conspired with Breakthrough to unreasonably seize their legally parked vehicles in violation of the Fourth Amendment. As discussed, the Plaintiffs have alleged more than private party action; they have alleged police participation. They have thus alleged that the John Doe officers "knowingly allowed the seizures in reckless disregard of the statute's requirements," which suffices to state a claim that the officers "violated the Plaintiffs' clearly established Fourth Amendment right to be free from unreasonable seizures." This claim survives a motion to dismiss. The Plaintiffs also allege that "there was an agreement, express or implied, by the Defendants to violate their constitutional rights by the unlawful actions of taking their property without due process" and by "unreasonably seizing their vehicles." Detroit argues that the allegations of civil conspiracy fail for being entirely vague, speculative, and conclusory. Hamtramck similarly argues that allegations that HPD officers conspired with Breakthrough and received bribes are entirely speculative. Judge Goldsmith says casting the Plaintiffs' arguments as "speculative" is insufficient for the Defendants to meet their burden at this stage of the proceedings. The allegations suffice to state a civil conspiracy claim against the police officer Defendants. To the extent that the Plaintiffs attempt to wrap the municipalities of Detroit and Hamtramck into the conspiracy, however, these allegations fail. Next, Hamtramck argues that qualified immunity bars the action because there was no clearly established law putting the unnamed John Doe officers on notice that failure to adhere to the towing statute could result in constitutional violations. Judge Goldsmith holds that discovery is appropriate. The Plaintiffs have plausibly alleged the violation of their constitutional rights to due process and to be protected against unreasonable seizures, in part because of non-compliance with statutes that served to protect those rights. Non-compliance with such statutes may indicate the violation of clearly established constitutional rights. At this stage, Judge Goldsmith denies Defendant officers' qualified immunity defense. For the reasons he stated, Judge Goldsmith grants the motions to dismiss filed by CVS, McDonald's, and Virgirilli. He grants in part and denies in part Detroit's motion for judgment on the pleadings and Hamtramck's motion to dismiss as follows: (i) the Plaintiffs' claims for Fourteenth and Fourth Amendment violations and civil conspiracy survive against the John Doe officers, and the Fourteenth and Fourth Amendment claims survive against Detroit and Hamtramck, limited to the theories sustained above; (ii) the Plaintiffs' First Amendment and Eighth Amendment claims are dismissed as to all municipal Defendants; and (iii) the civil conspiracy claims are dismissed as to Detroit and Hamtramck. Judge Goldsmith also denies CVS's earlier motion to dismiss as moot. Hamtramck must file an answer to the second amended complaint within 14 days of the issuance of the Opinion and Order. A scheduling conference will be noticed presently. A full-text copy of the Court's Sept. 16, 2022 Opinion & Order is available at https://tinyurl.com/u6vffszh from Leagle.com. C.R. ENGLAND: Hagest Wage-and-Hour Suit Goes to S.D. California --------------------------------------------------------------- The case styled MARC HAGEST and WAYNE SUBER, individually and on behalf of all others similarly situated v. C.R. ENGLAND, INC. and DOES 1-50, inclusive, Case No. 37-2022-00019285-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 September 16, 2022. The Clerk of Court for the Southern District of California assigned Case No. 3:22-cv-01406-BEN-JLB to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Unfair Competition Law including failure to pay minimum wages, failure to provide meal periods, failure to provide rest periods, failure to pay timely wages, failure to provide accurate itemized wage statements, failure to reimburse necessary business expenses, and unfair competition. C.R. England, Inc. is a trucking company, with its principal place of business in Salt Lake City, Utah. [BN] The Defendant is represented by: Drew R. Hansen, Esq. J. Randall Boyer, Esq. NOSSAMAN LLP 18101 Von Karman Avenue, Suite 1800 Irvine, CA 92612 Telephone: (949) 833-7800 Facsimile: (949) 833-7878 E-mail: dhansen@nossaman.com rboyer@nossaman.com CABLECOM LLC: Court Grants Bid to Dismiss UCL Claim in Slick Suit ----------------------------------------------------------------- Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California grants the Defendant's motion to dismiss the Plaintiff's UCL claim without leave to amend in the lawsuit styled KASEY SLICK, Plaintiff v. CABLECOM, LLC, Defendant, Case No. 22-cv-03415-JSC (N.D. Cal.). Plaintiff Kasey Slick brings this putative class action alleging that Defendant CableCom LLC violated California's Unfair Competition Law ("UCL"). The Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) and requests sanctions. The Plaintiff worked for the Defendant in California from August 2015 to November 2018. During that time, the Defendant allegedly failed to adequately compensate him and similarly situated employees for their work, including missed meal periods and rest breaks. The Defendant also failed to provide accurate wage statements and payroll records. Mr. Slick filed his complaint in the Superior Court of California on April 13, 2022, alleging a violation of the UCL. The UCL violation is predicated on a number of alleged California Labor Code violations, including the failure to pay overtime, provide meal periods, provide rest periods, pay minimum wage, pay wages upon termination, pay wages during employment, provide compliant wage statements, keep accurate payroll records, and reimburse necessary business expenses. The Plaintiff seeks injunctive relief, restitution of unpaid wages for himself and other members of the class, and reasonable attorney's fees. He also seeks class certification and asks the Court to appoint him as the class representative. The Defendant removed the case to federal court and then moved to dismiss and for sanctions. After oral argument, the parties provided briefing regarding the Court's subject matter jurisdiction. In his opposition to the Defendant's motion to dismiss, the Plaintiff alluded to the Court lacking subject matter jurisdiction. As the Court cannot decide the motion to dismiss if it lacks subject matter jurisdiction, at oral argument it ordered the parties to submit briefing regarding the jurisdiction question. It, thus, first addresses its subject matter jurisdiction over this dispute. Because federal jurisdiction exists here under the Class Action Fairness Act ("CAFA"), the Court then turns to the merits of the Defendant's motion to dismiss. The Defendant removed the case to federal court under CAFA. Under CAFA, a federal court has subject matter jurisdiction of a putative class action if the number of potential class members exceeds 100, the parties are citizens of different states, and the amount in controversy exceeds the aggregate value of $5,000,000. Judge Corley finds that the Defendant's notice of removal establishes that those jurisdictional requirements are met. Thus, the Court has jurisdiction under CAFA. Hence, the Plaintiff's request for remand is denied. The Defendant moves to dismiss on three grounds: (1) the Plaintiff fails to state a claim under the UCL because he cannot show he lacks an adequate remedy at law, (2) the Plaintiff's complaint is insufficiently pled, and (3) a prior settlement precludes the Plaintiff from bringing these claims. The first argument disposes of the Plaintiff's complaint, Judge Corley holds. To recover equitable remedies under the UCL in federal court, Judge Corley notes, the Plaintiff must demonstrate that he lacks an adequate remedy at law. The Plaintiff's UCL claim is predicated on California Labor Code claims. These Labor Code claims provide the Plaintiff with a remedy at law. Accordingly, the UCL claim fails, Judge Corley holds. In sum, Judge Corley finds the Plaintiff has not pled the absence of an adequate remedy at law; instead, he pleads only a failure to comply with that adequate remedy at law. As a result, the Plaintiff's UCL claim must be dismissed. Because the Plaintiff's UCL claim fails as a matter of law, and the Plaintiff concedes that his legal Labor Code claims are barred by the statute of limitations, Judge Corley finds that granting leave to amend the complaint would be futile. Thus, the Court dismisses the UCL claim without leave to amend. Because the Plaintiff's UCL claim fails under Sonner v. Premier Nutrition Corp., 971 F.3d 834, 839 n.2 (9th Cir. 2020), and leave to amend would be futile, the Court need not and does not address the Defendant's other grounds for its motion to dismiss. The Defendant requests sanctions pursuant to the Court's "inherent power" based on the Plaintiff's continued prosecution of this case notwithstanding his participation in the Carr settlement. The Court did not conclude that the Carr settlement bars the Plaintiff's claim and, indeed, in light of the record before the Court, such affirmative defense cannot be resolved on a 12(b)(6) motion. The request for sanctions is, thus, denied. Accordingly, the Court rules that the Plaintiff's request to file the reply is granted. That reply is deemed filed. The Plaintiff's request to remand this matter is denied. The Defendant's motion to dismiss the Plaintiff's UCL claim is granted without leave to amend and the Defendant's request for sanctions is denied. The case management conference scheduled for Sept. 16, 2022, was vacated. This Order disposes of Dkt. No. 13, 43. A full-text copy of the Court's Order dated Sept. 12, 2022, is available at https://tinyurl.com/2yn5xvkd from Leagle.com. CALIFORNIA: Savas Files Writ of Certiorari in Union Members' Suit ----------------------------------------------------------------- Plaintiffs Jonathan Savas, et al., filed with the Supreme Court of United States a petition for a writ of certiorari in the matter styled JONATHAN SAVAS, et al. Petitioners v. CALIFORNIA STATEWIDE LAW ENFORCEMENT AGENCY, et al., Respondents, Case No. 22-212. Response is due on October 11, 2022. Mr. Savas, et al., petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in the case titled JONATHAN SAVAS; et al, Plaintiff-Appellant v. CALIFORNIA STATE LAW ENFORCEMENT AGENCY, A LABOR ORGANIZATION; et al., Defendants-Appellees, Case No. 20-56045. The questions presented are: 1. Does it violate the First Amendment for a state and union to compel objecting employees to remain union members and to subsidize the union and its speech? 2. To constitutionally compel objecting employees to remain union members and to subsidize the union and its speech, do states and unions need clear and compelling evidence the objecting employees waived their First Amendment rights? The Plaintiff and similarly situated lifeguards filed a class action lawsuit against the state of California and CSLEA alleging their maintenance of membership requirement compels the lifeguards and similarly situated employees to subsidize CSLEA and its speech in violation of the First Amendment. The District Court dismissed the lifeguards' constitutional claims for failure to state a claim. The Court found their constitutional challenge to the maintenance of membership requirement "fail[s] because Plaintiffs agreed to join the union." On April 28, 2022, in an unpublished opinion, the Ninth Circuit "affirm[ed] the District Court's holding that the lifeguards have failed to state a plausible claim because the maintenance of membership requirement does not implicate the First Amendment." The court declared "the holding in Janus applied to nonunion members only and because the lifeguards are union members. The Court found the lifeguards to be union members, notwithstanding their notices of resignation, because they supposedly "entered into a contract with the union through which they agreed to be bound by certain limitations on when they could resign that membership. "The fact that the maintenance of membership requirement appeared in a separate document does not render the term unenforceable." On these grounds, the Ninth Circuit found no constitutional infirmity with a maintenance of membership agreement that requires employees to remain members of a union and to financially support its expressive activities for four years. The Court then refused to reconsider its decision en banc, denying a rehearing petition on June 8, 2022.[BN] Plaintiffs-Appellants-Petitioners Jonathan Savas, et al., are represented by: William L. Messenger, Esq. NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC. 8001 Braddock Rd., Suite 600 Springfield, VA 22160 Telephone: (703) 321-8510 E-mail: wlm@nrtw.org - and - Mariah Gondeiro, Esq. Robert Tyler, Esq. Nathan W. Kellum, Esq. ADVOCATES FOR FAITH & FREEDOM 25026 Las Brisas Rd. Murrieta, CA 92562 Telephone: (951) 304-7583 - and - Rebekah C. Millard, Esq. FREEDOM FOUNDATION P.O. Box 552 Olympia, WA 98506 Telephone: (360) 956-3482 CARSMETOLOGY: Faces Brenen Suit Over Car Detailers' Unpaid Wages ---------------------------------------------------------------- The case, CAMERON BRENEN, individually and on behalf of all similarly situated individuals, Plaintiff v. CARSMETOLOGY, Defendant, Case No. 2:2-cv-12146-SFC-APP (E.D. Mich., September 9, 2022) is brought by the Plaintiff alleging the Defendant of violations of the Fair Labor Standards Act for its implementation of unlawful employment policies and practices. The Plaintiff, who was employed by the Defendant as a Car Detailer, claims that he routinely worked more than 40 hours per week. However, the Defendant allegedly deprived him of his lawfully earned overtime compensation at the rate of one and one-half times his regular rate of pay for all hours he worked in excess of 40 per work week. Instead, the Defendant paid him a fixed sum for the vehicles he worked on, but not for the actual hours he worked. The Plaintiff asserts that he and other similarly situated Car Detailers were misclassified by the Defendant as exempt from the overtime provisions of the FLSA. In addition, the Defendant failed to make, keep, and preserve records by failing to accurately record, report, and/or preserve records of hours the Plaintiff worked. Moreover, the Defendant deprived Plaintiff of invoices for the work he performed and ridiculed him for requesting proper documentation, says the Plaintiff. The Plaintiff seeks for judgment against the Defendant for all unpaid overtime wages and unpaid wages for compensable hours under the FLSA, accrued vacation time, liquidated damages, interest, attorneys' fees and costs, and other relief as in law or equity may pertain. Carsmetology is a corporation that owns and operates five auto-service shops in southeastern Michigan. [BN] The Plaintiff is represented by: Noah S. Hurwitz, Esq. Grant M. Vlahopoulos, Esq. HURWITZ LAW PLLC 617 Detroit St., Suite 125 Ann Arbor, MI 48104 Tel: (844) 487-9489 E-mail: noah@hurwitzlaw.com grant@hurwitzlaw.com CHICK-FIL-A INC: Ukpere Suit Removed to D. New Jersey ----------------------------------------------------- The case styled as Susan Ukpere, individually, and on behalf of all others similarly situated v. Chick-fil-A, Inc., Case No. MID-L-003792-22 was removed from the Superior Court of New Jersey, Middlesex County, San Diego, to the U.S. District Court for District of New Jersey on Sept. 2, 2022. The District Court Clerk assigned Case No. 2:22-cv-05397-CCC-JSA to the proceeding. The nature of suit is stated as Other Fraud. Chick-fil-A -- https://www.chick-fil-a.com/ -- is one of the largest American fast food restaurant chains and the largest specializing in chicken sandwiches.[BN] The Plaintiff is represented by: Rachel Nicole Dapeer, Esq. DAPEER LAW, P.A. 3331 Sunset Avenue Ocean, NJ 07712 Phone: (305) 610-5223 Email: rachel@dapeer.com The Defendant is represented by: Daniel Eric Gorman, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 875 Third Avenue New York, NY 10022 Phone: (212) 704-6000 Email: daniel.gorman@troutman.com COMME DES GARCONS: Herrera Sues Over Failure to Pay Overtime ------------------------------------------------------------ Gabriel Herrera, individually and as class representative on behalf of all others similarly situated, and Daniel Abbott, Elizabeth Ammerman, Amir Azarcon, Sean Conway, Curtis Hennager, Blake Martin, Madison Murphy, Carlin Rollenhagen, Winston Tolliver, David Unich, Dylan Warmack, and Fnan Ysahak, individually v. COMME DES GARCONS, LTD., DOVER STREET MARKET NEW YORK LLC, ELAINE BEUTHER, JAMES GILCHRIST, Case No. 157373/2022 (N.Y. Sup. Ct., New York Cty., Aug. 29, 2022), is brought for failure to pay overtime under the New York Labor Law and the supporting New York State Department of Labor Regulations (collectively, "NYLL"), and for failure to comply with the notice and record keeping requirements of New York Labor Law. The Plaintiffs regularly worked more than 40 hours per week for the Defendants. The Defendants classified the Plaintiffs and other similarly situated employees as exempt from overtime pay requirements of the NYLL, and failed to pay them overtime compensation at the rate of one-half times their regular rate of pay for all hours worked over 40 in a work week, says the complaint. The Plaintiffs were employed by Defendants. Comme des Garcons is a global luxury fashion brand.[BN] The Plaintiffs are represented by: Joshua Alexander Bernstein, Esq. JOSH BERNSTEIN, P.C. 188 Grand St., 2nd Fl. New York, NY 10013 Phone: (646) 308-1515 Email: jbernstein@jbernsteinpc.com COMMERCIAL ACCEPTANCE: Wins Bid for Summary Judgment in Garcia Suit ------------------------------------------------------------------- In the lawsuit captioned RAFAEL GARCIA, on behalf of himself and all others similarly situated, Plaintiff v. COMMERCIAL ACCEPTANCE COMPANY, Defendants, Case No. 2:19-cv-1058-WJM-AME (D.N.J.), Judge William J. Martini of the U.S. District Court for the District of New Jersey issued an opinion: (1) granting the Defendant's motion for summary judgment; and (2) denying the Plaintiff's motion for summary judgment. Garcia brings the putative class action on behalf of himself and all others similarly situated against Defendant Commercial Acceptance Company for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. Section 1692, et seq. (the "FDCPA"). Before the Court are the parties' cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On Aug. 2, 2017, the Plaintiff suffered an injury and was transported via ambulance to St. Joseph's Hospital in Paterson, New Jersey. Immediately following his injury, a third party called the ambulance for thim, who neither knew the name of the company that provided the ambulance transportation nor signed any paperwork with respect thereto. On Jan. 24, 2018, the Defendant sent the Plaintiff a collection letter (the "Collection Letter") seeking payment of an outstanding balance of $1,103.00 owed to a creditor (the "Creditor") identified as "MONOC Ambulance Service C." The Collection Letter also provided information on when and how the Plaintiff may dispute the validity of the debt (the "Debt Dispute Language"). The Creditor's registered corporate name is "Monmouth-Ocean Hospital Services Corporation." "MONOC Ambulance Service C" is neither an independent registered business entity nor a registered associated business name for Monmouth-Ocean Hospital Services Corporation in New Jersey. Judge Martini notes that to prevail on an FDCPA claim, a plaintiff must prove that (1) he is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect a 'debt' as the Act defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt, citing Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014). The parties agree that the first three elements of the Plaintiff's FDCPA claim are satisfied, and, as such, the Court need only resolve questions as to the final element: whether the Defendant has violated a provision of the FDCPA. In his Complaint, the Plaintiff alleged several such violations in the Collection Letter: (1) it did not properly identify the creditor to whom the debt was owed in violation of Section 1692g(a)(2); (2) it provided false, misleading, and confusing information on when and how Plaintiff was required to dispute the validity of the debt in violation of Sections 1692g(a)(3)-(5); and (3) it made false, deceptive, and misleading representations to try and collect the debt by threatening that the Plaintiff's credit rating may be negatively affected if he failed to pay the outstanding balance in violation of Section 1692e(5) and e(10). In moving for summary judgment, however, the Plaintiff raises an additional argument for the first time: that the Defendant sought to collect a debt which was not owed because it was covered by a pending workers' compensation claim in violation of Section 1692f(1). A. Section 1692f(1) Claim: Workers' Compensation Allegations A threshold issue in ruling on the parties' motions is whether the Court may consider the Plaintiff's evidence concerning the submission and resolution of a workers' compensation claim in connection with his injury and subsequent ambulance bill. In moving for summary judgment, the Plaintiff claims in his sworn affidavit that (1) he was injured while at work as a school custodian, (2) his supervisor called the ambulance for him, (3) he submitted a claim to his workers' compensation insurance carrier and was told that all of his medical bills, including any bill for the ambulance, would be covered, and (4) prior to receiving the Collection Letter, he spoke to a representative of the ambulance provider and informed them that the outstanding balance for the ambulance was subject to a pending workers' compensation claim and would be paid by the workers' compensation insurance carrier. Based on these facts, the Plaintiff now asserts that the Defendant's attempt to collect a medical bill subject to a pending workers' compensation claim directly from the Plaintiff, who was not liable for any such payment, is a violation of the FDCPA's prohibition on unfair or unconscionable means to collect or attempt to collect any debt not authorized by agreement or permitted by law (15 U.S.C. Section 1692f(1)). Regardless of whether there is any merit to the Plaintiff's argument, the Court will not consider these new allegations in ruling on either party's motion. Judge Martini opines that it is well-settled that a plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment, citing Bell v. City of Philadelphia, 275 F. App'x 157, 160 (3d Cir. 2008). Nor can the Plaintiff actively seek summary judgment in his favor by fundamentally recharacterizing the nature of his claims through arguments and facts untethered to his Complaint. Judge Martini points out that the Plaintiff cannot now put forth a detailed set of new facts and arguments to support an entirely new theory of liability against the Defendant for purposes of summary judgment. He adds, among other things, that it is plainly incorrect for the Plaintiff to argue that his workers' compensation-based claim is fairly encompassed by the original allegations in the Complaint because he broadly alleged an unconscionable collection practice in violation of 15 U.S.C. Section 1692f. Accordingly, because the Plaintiff did not make any claims or allegations in his Complaint with respect to his workers' compensation insurance coverage and its relationship to the Defendant's attempt to collect on the ambulance bill, and has not sought leave to add such claims or allegations, they are not properly before the Court and will not be considered. To the extent the Plaintiff seeks summary judgment on any claim brought under Section 1692f based on his workers' compensation allegations, the Plaintiff's motion is denied, Judge Martini holds. The Defendant's motion for summary judgment with respect to any such claim is granted. B. Section 1692g(a)(2): Failure to Name the Creditor The Plaintiff argues that the Collection Letter incorrectly identifies the Creditor as "MONOC Ambulance Service C" instead of "Monmouth-Ocean Hospital Services Corporation" in violation of Section 1692g(a)(2)'s notice requirements. Section 1692g(a) requires a debt collector, within five days of an initial communication with a consumer in connection with the collection of any debt, to send to such consumer a written notice, called a "validation notice," providing information with respect to the debt owed. The Plaintiff argues that because he did not personally request the ambulance, observe any details about the service provided, and, as a resident of Passaic County, was not familiar with "Monmouth-Ocean" or the acronym "MONOC," the Collection Letter's identification of "MONOC Ambulance Service C" as the Creditor is necessarily incorrect and misleading in violation of Section 1692g(a)(2). The Court disagrees. The unique facts of this case undermine the Court's reliance on the factors usually used to resolve questions under Section 1692g(a)(2), Judge Martini states. For example, the relationship between the Plaintiff and the Creditor is limited, as far as the record reveals, to a single emergency use of an ambulance service, which the Plaintiff himself did not request and apparently did not carefully scrutinize. There is, thus, no history between the Creditor and the Plaintiff from which the Court could determine whether "MONOC Ambulance Service C" was a name that was likely to be understood as referring to "Monmouth-Ocean Hospital Service Corporation." Indeed, the parties have not cited, and the Court has been unable to find, a case dealing with this question in the context of a similar one-off emergency transaction between a debtor and creditor. Notwithstanding these complications, however, the Court is satisfied that the use of the name "MONOC Ambulance Service C" sufficiently identifies the Creditor. Accordingly, the Court finds that the Collection Letter did not violate Section 1692g(a)(2). C. Section 1692g(a)(3)-(5): Debt Dispute Language The Plaintiff claims that the Collection Letter is impermissibly confusing with respect to how a consumer may dispute the validity of the debt. Specifically, the Plaintiff claims that the use of the word "if" in the Debt Dispute Language is unclear whether a dispute as to the validity of the debt must be made in writing and must be made within 30 days of the receipt of the Collection Letter. The Court disagrees. The Third Circuit has recently clarified that Section 1692g(a)(3) does not require debt validity disputes to be in writing, and that oral disputes within 30 days are permissible; Riccio v. Sentry Credit, Inc., 954 F.3d 582, 590 (3d Cir. 2020) (en banc). As such, Judge Martini says, any argument by the Plaintiff that the Debt Dispute Language was required to make explicit that all disputes must be in writing is an incorrect statement of the law and the Defendant's failure to include such language is not a violation of the Section 1692g(a)(3). Accordingly, because the Third Circuit has since determined that debt disputes may be made orally and the Debt Dispute Language tracks closely to the wording of FDCPA itself, the Court concludes that the Collection Letter does not violate Sections 1692g(a)(3)-(5). D. Section 1692e(5) and e(10): Threatening Negative Credit Impact The Plaintiff's final claim under the FDCPA is that the Collection Letter's warning to him that his credit rating may be negatively affected if he failed to resolve his obligations was a false, deceptive, or misleading representation in violation of Section 1692e. At the outset, the Court notes that the Plaintiff's primary, if not only, theory in support of his Section 1692e claims is that the Defendant's statement that his credit rating may be negatively affected was false because (1) his debt was subject to a workers' compensation claim; (2) New Jersey law prohibits reporting unpaid medical debt to credit reporting agencies until the claim has been finally settled or adjudicated; and, therefore, (3) the Defendant knew that no credit reporting would ever actually occur with respect to the subject debt. Judge Martini finds that the Plaintiff is correct that a debt collector may not suggest the possibility of adverse legal or financial consequences to a debtor for failure to pay an outstanding debt based on events that will never occur, citing Schultz v. Midland Credit Mgmt., Inc., 905 F.3d 159, 163 (3d Cir. 2018). However, the Court has already determined that the Plaintiff's arguments arising out of his workers' compensation claim is untethered to the basic facts and claims raised in the Complaint and cannot be raised for the first time in briefing on cross-motions for summary judgment. Accordingly, to the extent the Plaintiff's Section 1692e claims are premised on the Defendant's inability to report the subject debt due to his workers' compensation claim, he has failed to establish the necessary elements of his claims. The only remaining question with respect to the Plaintiff's Section 1692e claim is whether the Collection Letter's reference to potential negative credit reporting violates Section 1692(e) outside of the context of the Plaintiff's workers' compensation allegations. The Court concludes it does not. Judge Martini finds that the Collection Letter does no more than simply inform the Plaintiff about consequences that may come to pass if the debt is ultimately not paid. It does not suggest that negative credit reporting will occur unless immediate payment is made. Nor does the surrounding language in the Collection Letter suggest a threatening context that might lead an unsophisticated consumer to make an immediate payment of the debt in full despite the protections provided by the subsequent Debt Dispute Language that appears later in the Collection Letter. Finally, Judge Martini finds that there is no evidence that the Defendant does not actually engage in such credit reporting or any other evidence from which the Court may infer that the Defendant had no intention of reporting the Plaintiff's unpaid debt. Accordingly, the Court finds that the Collection Letter does not violate Section 1692e. For the reasons set forth, Judge Martini rules that the Plaintiff's motion for summary judgment is denied in full. The Defendant's cross-motion for summary judgment is granted in full. An appropriate order follows. A full-text copy of the Court's Opinion dated Sept. 12, 2022, is available at https://tinyurl.com/yxsb7jx2 from Leagle.com. COMPASS GROUP: Underpays Dietician Specialists, Chen Suit Alleges ----------------------------------------------------------------- KATHERINE ANNA CHEN, individually and on behalf of all others similarly situated, Plaintiff v. COMPASS GROUP, USA, INC.; MORRISON MANAGEMENT SPECIALISTS, INC.; MORRISON HEALTHCARE, INC.; and DOES 1-50, inclusive, Defendants, Case No. 22STCV30416 (Cal. Super., Los Angeles Cty., September 16, 2022) is a class action against the Defendants for violations of the California Labor Code's Private Attorneys General Act of 2004 including failure to pay wages including overtime; failure to provide meal periods or pay premium in lieu thereof; failure to provide rest breaks or pay premium in lieu thereof; failure to pay timely wages; failure to provide accurate itemized wage statements; and failure to reimburse expenses. Ms. Chen was employed by the Defendants as a dietician specialist from approximately February 2018 until July 22, 2021. Compass Group, USA, Inc. is an operator of food service, hospitality, and support service business in California. Morrison Management Specialists, Inc. is an operator of food service, hospitality, and support service business in California. Morrison Healthcare, Inc. is an operator of food service, hospitality, and support service business in California. [BN] The Plaintiff is represented by: James R. Hawkins, Esq. Gregory Mauro, Esq. Michael Calvo, Esq. Lauren Falk, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 E-mail: James@jameshawkinsaplc.com Greg@jameshawkinsaplc.com Michael@jameshawkinsaplc.com Lauren@jameshawkinsaplc.com COOPERATIVE REGIONS: Rutigliano Files Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Cooperative Regions of Organic Producer Pools. The case is styled as Frances Rutigliano, individually and on behalf of herself and all others similarly situated v. Cooperative Regions of Organic Producer Pools doing business as: Organic Valley, Case No. 7:22-cv-07548-CS (S.D.N.Y., Sept. 2, 2022). The nature of suit is stated Other Fraud. Cooperative Regions of Organic Producer Pools doing business as Organic Valley -- https://www.organicvalley.coop/ -- is an organic food brand and independent cooperative of organic farmers based in La Farge, Wisconsin.[BN] The Plaintiff is represented by: Charles D. Moore, Esq. REESE LLP 100 South 5th Street, Ste. 1900 Minneapolis, MN 55402 Phone: (212) 643-0500 Fax: (212) 253-4272 Email: cmoore@reesellp.com CREDIT COLLECTION: Darmon Sues Over Illegal Collection Practices ---------------------------------------------------------------- Orly Darmon, on behalf of herself and all other similarly situated consumers v. CREDIT COLLECTION SERVICES, INC., Case No. CACE-22-012676 (Fla. 17th Judicial Cir. Ct., Broward Cty., Aug. 26, 2022), seeks redress for the illegal practices of the Defendant, concerning the collection of debts, in violation of the Florida Consumer Collection Protection Act ("FCCPA"), and the Fair Debt Collection Practices Act ("FDCPA"). The Defendant began to attempt to collect an alleged consumer debt from the Plaintiff. On January 29, 2022, the Defendant sent the Plaintiff a collection letter seeking to collect a balance allegedly incurred for personal purposes. Said collection letter concerns a debt purportedly owed to Quest. The Plaintiff submits that she does not owe the debt due to the fact that she presented her insurance card and was told by the Quest representative that the test would be covered by her insurance. The Defendant has sent the Plaintiff a collection letter for an amount which the Plaintiff does not owe. By presenting the insurance card, the plaintiff agreed to the test performed with the understanding that it would be paid by insurance. The Letter's language violates the FCCPA FDCPA. The Plaintiff suffered injury in fact by being subjected to unfair and abusive practices of the Defendant. The Plaintiff suffered actual harm by being the target of the Defendants misleading debt collection communications. The Defendant violated the Plaintiff's right not to be the target of misleading debt collection communications, says the complaint. The Plaintiff was a resident and citizen of the state of Florida and is a consumer. The Defendant regularly engages, for profit, in the collection of alleged consumer debts.[BN] The Plaintiff is represented by: Omar M. Salazar II, Esq. LEVY & PARTNERS, PLLC 3230 Stirling Road, Suite 1 Hollywood, FL 33021 Phone (954) 727-8570 Facsimile (954) 241-6857 Primary Email: omar@lawlp.com Secondary Email: claudia@lawlp.com maritza@lawlp.com DARCARS OF RAILROAD: Gaska Files Suit in Conn. Super. Ct. --------------------------------------------------------- A class action lawsuit has been filed against Darcars of Railroad Avenue, Inc. The case is styled as Arkadiusz Josef Gaska, Katarzyna Gaska, individually and on behalf of a class of others similarly situated v. Darcars of Railroad Avenue, Inc., Case No. FBT-CV22-6117756-S (Conn. Super. Ct., Bridgeport/Fairfield Cty., Aug. 29, 2022). The case type is stated as "Misc - All Other." DARCARS -- https://www.darcars.com/ -- provides a great car buying experience with our convenient Northeast, Mid-Atlantic, and Florida dealerships.[BN] The Plaintiffs are represented by: CONSUMER LAW GROUP LLC (414047) 35 Cold Spring Road, Suite 512 Rocky Hill, CT 06067 DIRECTV LLC: Final Hearing of $17M Deal in TCPA Suit Set Feb. 2023 ------------------------------------------------------------------ Top Class Actions reports that DirecTV agreed to pay $17 million to resolve claims that it violated the Telephone Consumer Protect Act (TCPA) with unsolicited telemarketing calls. The settlement benefits individuals who received phone calls from DirecTV or from iQor Inc., Credit Management LP, AFNI Inc. or Enhanced Recovery Co. Inc. regarding a debt owed to DirecTV despite not being a DirecTV customer at any time since Oct. 1, 2004. DirecTV is a cable company that offers television services to consumers around the country. According to a telemarketing class action lawsuit, the company violates federal law by placing phone calls without consent. Plaintiffs in the class action lawsuit say DirecTV engaged third-party debt collectors to place calls to consumers about debts. These calls allegedly utilized pre-recorded messages to contact consumers who had never given the company consent to contact them in such a manner. The DirecTV class action lawsuit claims that these calls violated the federal TCPA, which requires businesses to get express prior written consent before contacting consumers with pre-recorded telemarketing calls or texts. The plaintiffs also claim that DirecTV's calls violate an agreement with federal regulators. In December 2005, DirecTV settled illegal telemarketing charges from the Federal Trade Commission (FTC) with a $5.35 million settlement. The deal included provisions which permanently required DirecTV to monitor its telemarketing campaigns and ensure that no more than 3% of all answered telemarketing calls are answered by a real person instead of a pre-recorded message. Plaintiffs in the class action lawsuit maintain DirecTV violated the terms of this agreement with its pre-recorded telemarketing calls. DirecTV hasn't admitted any wrongdoing but agreed to pay $17 million as part of a settlement to resolve these allegations. Under the terms of the DirecTV settlement, class members can receive a proportional share of the net settlement fund as a cash payment. Class members who received telemarketing calls from Credit Management or iQor will receive two "shares" of the settlement fund while class members who received calls from AFNI or Enhanced Recovery Co. will receive one "share" of the net settlement fund. Payments will be distributed proportionally to the number of shares each class member qualifies for. Exact payments will vary. The deadline for exclusion and objection is Nov. 18, 2022. The final approval hearing is scheduled for Feb. 24, 2023. In order to receive a payment from the DirecTV settlement, Class Members must submit a valid claim form by Dec. 19, 2022. Who's Eligible The settlement benefits individuals who received phone calls from DirecTV or from iQor Inc., Credit Management LP, AFNI Inc. or Enhanced Recovery Co. Inc. regarding a debt owed to DirecTV despite not being a DirecTV customer at any time since Oct. 1, 2004. Potential Award Varies Proof of Purchase Proof of purchase not applicable Claim Form NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 12/19/2022 Case Name Jenny Brown v. DIRECTV LLC, Case No. 2:13-cv-01170 in the District Court for the Central District of California Final Hearing 02/24/2023 Settlement Website DTVPrerecordClassAction.com Claims Administrator Settlement Administrator DIRECTV Prerecord TCPA P.O. Box 25356 Richmond, VA 23260 888-639-1080 Class Counsel Matthew Wilson MEYER WILSON CO LPA Daniel M. Hutchinson LIEFF CABRASER HEIMANN & BERNSTEIN LLP Defense Counsel Hans J Germann Kyle J Steinmetz MAYER BROWN LLP [GN] DRIVER PROVIDER: Arizona Court Grants Salazar's Bid to Strike ------------------------------------------------------------- Judge Susan M. Brnovich of the U.S. District Court for the District of Arizona grants the Plaintiffs' motion to strike in the lawsuit styled Kelli Salazar, et al., Plaintiffs v. Driver Provider Phoenix LLC, et al., Defendants, Case No. CV-19-05760-PHX-SMB (D. Ariz.). Pending before the Court is the Defendants' Motion for Judgment on the Pleadings ("MJP"), and the Plaintiffs' Motion to Strike the MJP. The Plaintiffs' Fourth Amended Complaint ("Complaint") brings collective action and class action claims, alleging the Defendants failed to compensate minimum and overtime wages. Specifically, the Plaintiffs assert the Defendants failed to pay: (1) overtime and minimum wages in violation of the Fair Labor Standards Act ("FLSA"); (2) overtime wages in violation of the Arizona Wage Act ("AWA"); and (3) minimum wages in violation of the Arizona Minimum Wage Act. The Defendants' Answer denies the Plaintiffs' allegations and asserts multiple affirmative defenses. However, the Defendants argue for the first time in the MJP that the Plaintiffs' FLSA claim preempts their AWA claim. The Plaintiffs, thus, filed a Motion to Strike Defendants' MJP on the grounds that: (1) the Defendants failed to meet and confer under Local Rule of Civil Procedure 12.1(c); and (2) the Defendants raising the preemption defense for the first time was prohibited by General Order 17-08. The Court finds that the Defendants failed to satisfy the meet and confer requirements under Local Rule 12.1(c). The Defendants assert the MJP certification complied with Local Rule 12.1(c). To clarify, Judge Brnovich notes that Local Rule of Civil Procedure 7.2(j) governs the certification requirements for discovery motions, which has a different certification standard than motions for judgment on the pleadings. Local Rule 12.1(c), thus, controls in this context. The Defendants certified to having met and conferred with the Plaintiffs to discuss the issues raised in the MJP. Yet the Plaintiffs assert their only conversations with the Defendants about the AWA and preemption occurred: (1) in November 2021, during confidential settlement discussions; and (2) during a Jan. 5, 2022 phone call where the Plaintiffs denied the Defendants' requested stipulation to amend their Answer to raise the preemption defense. The Plaintiffs also assert that the Defendants never gave notice of their intent to file the MJP, and that the January 2022 call revolved around the Defendants' requested stipulation to amend their Answer, not to file the MJP. The Plaintiffs assert that at the end of the Jan. 5 phone call, the Defendants stated they would be filing a motion to amend their Answer. The Defendants contend that during the Jan. 5 call, the Plaintiffs' counsel declined to voluntarily dismiss the overtime claim under the AWA. Therefore, the Defendants believed "the parties were at a stalemate" and "further meet and confers on this issue would be futile." Following the call, the Defendants conducted more research and determined amending their Answer was unnecessary for the Court to decide the preemption issue. The Defendants further concluded that to avoid unnecessary briefing and amending the answer, they would instead file the MJP. The Court finds that the Defendants have failed to satisfy the meet and confer requirements set forth in Local Rule 12.1(c). First, the Defendants attempt to rely on confidential settlement discussions, which the Court will not consider. Without the settlement discussions, the Court exclusively considers whether the parties sufficiently met and conferred during the Jan. 5 phone call. Both parties agree no MJP discussions occurred during the call. The parties discussed the Defendants' requested stipulation to amend their Answer to assert the preemption defense. The Plaintiffs declined. Before the call ended, the Defendants informed the Plaintiffs they were going to file a motion to amend their Answer. Instead, the Defendants filed the MJP, which asserted preemption deficiencies within the Plaintiffs' Complaint--something that could not be cured by the Defendants amending their Answer. But even with the Plaintiffs declining to amend their Complaint on the call, the statement was made solely in the context of the Defendants' requested stipulation to amend their Answer, not the Defendants filing a motion for judgment on the pleadings. Between the Jan. 5 call and the Defendants filing the MJP, the parties had no conversations about the AWA or preemption. The Defendants, thus, deprived the Plaintiffs of any opportunity to discuss the issues raised in the MJP, or whether any curing amendments could be made, Judge Brnovich says. Because the Defendants failed to satisfy Local Rule 12.1(c)'s certification requirements, the Court will strike the MJP. The Plaintiffs' Motion to Strike asserts that the Defendants violated General Order 17-08 by raising a preemption defense for the first time in the MJP. Because the Court is striking the MJP, the Court will not reach the merits of this claim. Accordingly, the Defendants' Motion for Judgment on the Pleadings is stricken. A full-text copy of the Court's Order dated Sept. 12, 2022, is available at https://tinyurl.com/yz49wyva from Leagle.com. E.L.F. COSMETICS: Davis Suit Alleges Illegal Biometrics Collection ------------------------------------------------------------------ ARIEL DAVIS, LACIE DAVIS, and TAYLOR DAVIS, individually and on behalf of all others similarly situated, Plaintiffs v. E.L.F. COSMETICS, INC., Defendant, Case No. 1:22-cv-05069 (N.D. Ill., September 16, 2022) is a class action against the Defendant for violations of the Illinois Biometric Information Privacy Act. The case arises from the Defendant's alleged collection of detailed and sensitive biometric identifiers and information, including complete facial scans, from its website users through the Virtual Try-On tool without first obtaining their consent. Moreover, the Defendant failed to: (a) inform users of any specific purpose for the collection of their biometric information or biometric identifiers; (b) provide users a schedule setting out the length of time during which that biometric information or biometric identifiers will be collected, stored, used, or destroyed; and (c) comply with BIPA's retention and destruction guidelines. The Plaintiffs and Class members have been injured by the Defendant's conduct, which injury includes the unknowing loss of control of their most unique biometric identifiers and violations of their privacy, says the suit. E.L.F. Cosmetics, Inc. is a manufacturer of skin care and makeup products, with its principal place of business at 570 10th Street, Oakland, California. [BN] The Plaintiffs are represented by: Adam J. Levitt, Esq. Amy E. Keller, Esq. Nada Djordjevic, Esq. Sharon Cruz, Esq. DICELLO LEVITT LLC Ten North Dearborn Street, Sixth Floor Chicago, IL 60602 Telephone: (312) 214-7900 E-mail: alevitt@dicellolevitt.com akeller@dicellolevitt.com ndjordjevic@dicellolevitt.com scruz@dicellolevitt.com - and - Steven M. Nathan, Esq. HAUSFELD LLP 33 Whitehall St., 14th Floor New York, NY 10004 Telephone: (646) 357-1100 E-mail: snathan@hausfeld.com - and - James J. Pizzirusso, Esq. HAUSFELD LLP 888 16th Street, NW, Suite 300 Washington, DC 20006 Telephone: (202) 540-7200 E-mail: jpizzirusso@hausfeld.com - and - Don Bivens, Esq. DON BIVENS PLLC Scottsdale Quarter 15169 North Scottsdale Road, Suite 205 Scottsdale, AZ 85254 Telephone: (602) 708-1450 E-mail: don@donbivens.com ENVISION PHYSICIAN: Caban Sues Over Unlawful Collection of Debt --------------------------------------------------------------- Ryan Turizo, individually and on behalf of all those similarly situated v. ENVISION PHYSICIAN SERVICES AT HCA FL WOODMONT HOSPITAL, Case No. CACE-22-012701 (Fla. 17th Judicial Cir. Ct., Broward Cty., Aug. 26, 2022), is brought against the Defendant for violation of the Florida Consumer Collection Practices Act, which prohibits persons from communicating with a debtor between the hours of 9:00 PM and 8:00 AM in the debtors time zone without the prior consent of the debtor. On a date better known by the Defendant, the Defendant began attempting to collect a debt from the Plaintiff. The Consumer Debt is an obligation allegedly had by the Plaintiff to pay money arising from a transaction between the creditor of the Consumer Debt, the Defendant and the Plaintiff. (the "Subject Service"). The Subject Service was primarily for personal, family, or household purposes. On August 17, 2022, the Defendant sent an electronic mail communication to the Plaintiff. (The "Communication"). The communication was a communication in connection with the collection of the consumer debt. The communication was sent from email@email.envisionhealth.com and delivered to the Plaintiff's personal email address. The Communication was sent to the Plaintiff at 6:06 AM in the Plaintiff's time zone. The communication was received by the Plaintiff from the Defendant at 6:06 AM in the Plaintiff's time zone. The Defendant did not have the consent of the Plaintiff to communicate with the Plaintiff between the hours of 9:00 PM and 8:00 AM. As such by and through the communication the Defendant violated the FCCPA, says the complaint. The Plaintiff is a natural person, and a citizen of the State of Florida, residing in Broward County, Florida. The Defendant is a Delaware Limited Liability Company with its principal place of business located in Nashville, Tennessee.[BN] The Plaintiff is represented by: Jennifer G. Simil, Esq. Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Phone: 954-907-1136 Fax: 855-529-9540 Email: jen@jibraellaw.com jibrael@jibraellaw.com EQUIFAX INFORMATION: Court Denies Myers' Class Certification Bid ---------------------------------------------------------------- In the case, JOHN D. MYERS, JR., Plaintiff v. EQUIFAX INFORMATION SERVICES, LLC, EXPERIAN INFORMATION SOLUTIONS, INC., and TRANS UNION, LLC, Defendants, Case No. 1:20-cv-00392-JMS-DLP (S.D. Ind.), Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana, Indianapolis Division: (i) grants in part and denies as moot in part the Defendants' Motion for Summary Judgment; and (ii) denies Mr. Myers' Motion for Class Certification. Mr. Myers took out an automobile loan with Ally Financial and subsequently filed a Voluntary Petition for Chapter 7 Bankruptcy. During the course of the bankruptcy, he believed that he had reaffirmed the debt and continued making the monthly payments, but Ally believed that the debt had been discharged in the bankruptcy. The Defendants, credit reporting agencies Equifax, Experian, and Trans Union (collectively, "the CRAs"), all reported Mr. Myers' Ally loan as "discharged" rather than "reaffirmed." Mr. Myers initiated this litigation against the CRAs, setting forth various individual and class claims under the Fair Credit Reporting Act, 15 U.S.C. Section 1681, et seq. ("FCRA"). In 2013, Mr. Myers took out an automobile loan with Ally secured by a 2013 Chevrolet Silverado. On Nov. 7, 2018, he filed a Voluntary Petition for Chapter 7 Bankruptcy in the U.S. Bankruptcy Court for the Southern District of Indiana -- In re John D. Myers & Jennifer Dian Myers, No. 1:18-bk-08492-JMC-7 (Bankr. S.D. Ind.). On his Bankruptcy Petition, Mr. Myers listed multiple creditors including Ally (secured by the 2013 Chevrolet Silverado). Mr. Myers intended to reaffirm the Ally debt because he used the Chevrolet Silverado to get to work and he knew it would be difficult to obtain another vehicle after filing for bankruptcy. He also intended to reaffirm a debt with Huntington National Bank that was secured by a 2013 Chevrolet Equinox because his wife used the Equinox to get to work, and a debt with Loancare Servicing secured by Mr. Myers' personal residence so that his family could remain in their home. The meeting of the creditors took place on Dec. 10, 2018, and on Dec. 20, 2018, Huntington filed a reaffirmation agreement it had entered into with Mr. Myers. An order discharging Mr. Myers' Chapter 7 bankruptcy was entered on Jan. 9, 2019, but the discharge was vacated and the case was re-opened on Jan. 10, 2019 because it was "closed in error." On Jan. 14, 2019, LoanCare filed a reaffirmation agreement it had entered into with Mr. Myers. On Feb. 8, 2019, Mr. Myers filed a motion seeking to defer entry of the bankruptcy discharge so that he could file a reaffirmation agreement with Ally. The Bankruptcy Court granted Mr. Myers' motion on Feb. 11, 2019, and Mr. Myers filed a reaffirmation agreement with Ally on March 1, 2019. His bankruptcy was discharged on March 22, 2019 and the case was closed. The Discharge Order did not list which of Mr. Myers' debts were discharged versus reaffirmed. Notice of Mr. Myers' bankruptcy discharge was issued to the Bankruptcy Noticing Center on March 24, 2019. The CRAs, who were listed on Mr. Myers' bankruptcy petition, received notice of the discharge from the Bankruptcy Noticing Center. The notice consisted of a copy of the Order of Discharge, but not a copy of the whole bankruptcy docket, any reaffirmation agreements, or any other filings. After the bankruptcy discharge, Mr. Myers found that it was very difficult to make payments on the Ally loan because Ally believed that the debt had been discharged. Each time he called Ally to make a monthly payment, he was told that the debt had not been reaffirmed. Because Ally believed that the debt had been discharged, Mr. Myers was not able to make his monthly payments online but instead had to repeatedly call Ally's bankruptcy department. Mr. Myers has continued making payments on the Ally loan, but the disagreement between Mr. Myers and Ally regarding whether the loan was reaffirmed in the bankruptcy remains. On Oct. 8, 2019 -- after the bankruptcy discharge, but before this lawsuit was filed -- Equifax provided Mr. Myers with a copy of his consumer disclosure at his request. The Ally account was one of numerous other accounts and three collections on Mr. Myers' Equifax consumer disclosure that might be considered negative by a potential creditor. Equifax was also reporting Mr. Myers' discharged bankruptcy. Mr. Myers' Huntington and Loancare accounts, which had been reaffirmed, were reported as open and never late with a recent balance. Mr. Myers never disputed his Ally account with Equifax. After Mr. Myers filed this lawsuit, Equifax initiated a reinvestigation of the Ally account on Feb. 7, 2020, and sent an Automated Consumer Dispute Verification ("ACDV") to the furnisher to confirm that Ally was accurately reporting Mr. Myers' account. On Feb. 27, 2020, Ally responded to Equifax's ACDV request and confirmed that Mr. Myers' account was accurately reported as included in the bankruptcy, as denoted by the CII of "A." Mr. Myers never submitted a dispute to Experian regarding the reporting of the Ally account and never provided Experian with a copy of the Ally reaffirmation agreement. Instead, he relied on his attorneys to fix Experian's reporting of the Ally account. When Equifax sent the ACDV to Ally to confirm that it was accurately reporting Mr. Myers' Ally account, Ally sent a carbon copy of its response to the ACDV to Experian on Feb. 27, 2020. Experian updated its reporting of the Ally account the following day to reflect that the account was included in the bankruptcy petition, rather than that it had been discharged. On March 31, 2020, Experian also sent its own ACDV to the data furnisher to confirm the accuracy of its reporting, and Ally confirmed that the account should continue reporting as included in the bankruptcy petition. Trans Union provided Mr. Myers with a copy of his consumer disclosure on Oct. 8, 2019, at his request. At that time, Trans Union was reporting the Ally account as included/discharged in Mr. Myers' bankruptcy, with timely payments both during the pendency of the bankruptcy and thereafter. It was not reporting a monthly payment amount or the recent balance of the Ally account. The Ally account was one of numerous accounts on Mr. Myers' consumer disclosure that might be considered negative by a potential creditor. Trans Union was reporting Mr. Myers' discharged bankruptcy, and was reporting that the Huntington and Loancare accounts were open and never late with balances (and not as discharged in the bankruptcy). Mr. Myers never contacted Trans Union regarding the reporting of the Ally account. Instead, he relied upon his attorney to fix the way in which Trans Union was reporting the Ally account. On Feb. 10, 2020, after Mr. Myers filed this lawsuit, Trans Union sent Ally an ACDV8 and explained that "the account was reaffirmed in bankruptcy case number 18 08492 JMC 7 filed in the Southern District of Indiana." In response, Ally confirmed that the account was not reaffirmed, but was instead included in the bankruptcy, and added a note that Mr. Myers disagreed with Ally's position. In any event, Trans Union deleted the Ally account from Mr. Myers' file on March 10, 2020. After Mr. Myers' bankruptcy was discharged, he applied for several new credit cards in an attempt to repair his credit. At that time, he feared that he might have trouble rebuilding his credit due to the bankruptcy. Mr. Myers knew that a Chapter 7 bankruptcy is a major derogatory event, but this and his fear of being rejected for new credit cards or loans did not deter him from applying. After the bankruptcy discharge, Mr. Myers opened several new accounts and purchased numerous items including a new television and a new car. He also received several credit denials, but was never told that the denials related to the CRAs' reporting of the Ally account -- only that the denials stemmed from his bankruptcy. When purchasing a new car in May 2021, the automobile dealership asked Mr. Myers if he had surrendered the 2013 Chevrolet Silverado that secured the Ally account, he explained that he had not surrendered it, and he was approved to purchase a 2021 GMC Acadia the same day The Home Depot denied Mr. Myers credit, noting that the denial was based on the reporting of his Chapter 7 bankruptcy on his Experian credit report, but did not reference the Ally account or any specific account that had been discharged in the bankruptcy. Mr. Myers initiated the lawsuit in Rush County Superior Court on Jan. 13, 2020 and Trans Union removed the case to the Court, with the consent of Equifax and Experian, on Feb. 4, 2020. He filed the operative Amended Complaint on July 30, 2020, in which he asserts individual and class claims for violations of Section 1681e(b) of the FCRA. On behalf of himself and putative class members, he seeks statutory damages ranging from $100 to $1,000 under Section 1681n(a)(1)(A), punitive damages under Section 1681n(a)(2) for each violation, and attorneys' fees and costs under Section 1681n and 1681o. Mr. Myers seeks to represent a class of "all consumers in the United States whose consumer reports inaccurately reported reaffirmed accounts as included or discharged in the consumer's bankruptcy and disclosed to a third party." He also seeks to represent the following sub-classes: a. All consumers in the United States whose consumer reports inaccurately reported reaffirmed accounts as included or discharged in the consumer's bankruptcy when the information furnisher was reporting payments being made during and/or after the bankruptcy and disclosed to a third party. b. All consumers in the United States whose consumer reports inaccurately reported reaffirmed accounts as included or discharged in the consumer's bankruptcy when the bankruptcy file shows Bankruptcy Form 427 and/or the reaffirmation agreement was filed and where this information was disclosed to a third party. At the outset, Judge Magnus-Stinson considers the scope of Mr. Myers' claims. Specifically, along with a claim for willful violation of Section 1681e(b) under Section 1681n, Mr. Myers asserts a claim for negligent violation of Section 1681e(b) in his Amended Complaint pursuant to Section 1681o. However, he has abandoned his negligence claim. Because Mr. Myers has abandoned any claim for actual damages, Judge Magnus-Stinson denies as moot the CRAs' Motion for Summary Judgment to the extent it relates to a claim for actual damages or for any claim under Section 1681o. Before she considers the substance of Mr. Myers' remaining claims, Judge Magnus-Stinson must determine whether Mr. Myers has standing to sue, which is a jurisdictional requirement. The parties do not explicitly address whether Mr. Myers has standing, but the CRAs argue in their Motion for Summary Judgment that Mr. Myers has not presented competent evidence that the CRAs' reporting of the Ally loan as discharged, rather than his poor credit history and bankruptcy discharge, caused him any injury in fact. In his response, Mr. Myers argues that he need not establish that he suffered actual damages to seek statutory damages for willful noncompliance with the FCRA. Judge Magnus-Stinson holds that the record evidence shows -- and the CRAs have not disputed -- that all of the CRAs disseminated Mr. Myers' credit report to third parties during the time that the CRAs were reporting the Ally loan as discharged instead of reaffirmed. She finds that, because Mr. Myers' allegedly inaccurate credit report was disseminated to third parties, he has standing to assert his claims under the FCRA. She next considers the merits of those claims. Mr. Myers claims that the CRAs willfully violated the FCRA, which requires him to prove that they acted "with actual knowledge or reckless disregard for the FCRA's requirements." The CRAs argue that they did not violate Section 1681e(b) for three reasons: (1) they accurately reported the Ally account as discharged in bankruptcy; (2) determining whether the Ally loan was successfully reaffirmed and, consequently, inaccurately reported, would require the type of legal analysis that they are not obligated to undertake; and (3) they were entitled to rely on information furnished by Ally. Judge Myers holds that (i) the Court assumes for purposes of deciding the CRAs' Motion for Summary Judgment that the reaffirmation agreement between Mr. Myers and Ally was valid; (ii) the CRAs did not violate Section 1681e(b) by reporting the Ally account as discharged instead of reaffirmed; and (iii) the CRAs did not violate Section 1681e(b) because discovering that the reporting was inaccurate would require a legal determination that the FCRA does not require the CRAs to make, and because the CRAs were entitled to rely upon information provided from Ally that the loan had been discharged in bankruptcy and she grants the CRAs' Motion for Summary Judgment on Mr. Myers' Section 1681e(b) claim ; and (iv) Mr. Myers has not presented sufficient evidence from which a reasonable jury could conclude that such a violation was willful and she grants the CRAs' Motion for Summary Judgment on that issue. In his Motion for Class Certification, Mr. Myers argues that the class is readily ascertainable and that the requirements of Fed. R. Civ. P. 23(a) -- numerosity, commonality, typicality, and adequacy of representation -- and of Rule 23(b)(3) and (c)(4) are met. The CRAs argue in response that Mr. Myers' class and sub-classes do not meet the requirements of Rule 23(a)(1) or (b)(3), that he is subject to unique defenses that render his claims atypical, and that the class and sub-classes are impermissible fail-safe classes, among other things. Judge Magnus-Stinson finds that because Mr. Myers no longer has any viable individual claims against the CRAs, he is not an adequate class representative. Additionally, her decision on Mr. Myers' individual claims was highly fact-intensive, both on the issue of whether the CRAs violated Section 1681e(b) and regarding whether any violation was willful. The individualized nature of her inquiry renders Mr. Myers' class claims inappropriate for class treatment because individualized issues would predominate over any common issues. For this reason and because Mr. Myers is not an adequate class representative, Judge Magnus-Stinson denies Mr. Myers' Motion for Class Certification. Because she is granting the CRAs' Motion for Summary Judgment on Mr. Myers' individual claims and denying his Motion for Class Certification, Judge Magnus-Stinson dismisses without prejudice the putative class claims. For the foregoing reasons: Judge Magnus-Stinson grants the CRAs' Motion for Summary Judgment as to Mr. Myers' claim that the CRAs violated Section 1681e(b) and that it did so willfully under Section 1681n. Mr. Myers has abandoned any claim under Section 1681n. Judge Magnus-Stinson denies as moot the CRAs' Motion for Summary Judgment as to Mr. Myers' claim for actual damages or any claim under Section 1681o. She denies Mr. Myers' Motion for Class Certification and dismisses the class claims without prejudice. Final judgment will be entered accordingly. A full-text copy of the Court's Sept. 16, 2022 Order is available at https://tinyurl.com/yckb9van from Leagle.com. EXPRESS DRAIN: Fails to Properly Pay OT Wages, Williams Claims -------------------------------------------------------------- ALEXANDER WILLIAMS, on behalf of himself and all others similarly situated, Plaintiff v. EXPRESS DRAIN & SEWER CLEANING, LLC f/k/a EM GROUP VENTURES, LLC, Defendant, Case No. 0:22-cv-61701-XXXX (S.D. Fla., September 9, 2022) is a collective action complaint brought against the Defendant for its alleged intentional and willful violations of the Fair Labor Standards Act. The Plaintiff was hired by the Defendant in or around August 2017 to work as a plumber. According to the complaint, the Plaintiff was paid by the Defendant a salary of $600 per week plus non-discretionary bonuses and commissions. However, although he typically worked approximately 40-55 hours per week, he was not properly compensated for all hours he worked. The Defendant allegedly failed to pay him overtime wages in one or more workweeks at the rate of one and one-half times his regular rates of pay for the work her performed in excess of 40 hours. In addition, the Defendant regularly manipulated the time records for the Plaintiff to avoid its federal overtime wage obligations, says the suit. The Plaintiff seeks to recover all unpaid overtime w ages, liquidated damages, all reasonable attorney's fees and litigation costs, and other relief as the Court may deem just and equitable under the circumstances. Express Drain & Sewer Cleaning, LLC f/k/a EM Group Ventures, LLC provides drain cleaning and plumbing services to residential and commercial clients. [BN] The Plaintiff is represented by: Jordan Richards, Esq. Jake Blumstein, Esq. USA EMPLOYMENT LAWYERS- JORDAN RICHARDS, PLLC 1800 SE 10th Ave., Suite 205 Fort Lauderdale, FL 33316 Tel: (954) 871-0050 E-mail: Jordan@jordanrichardspllc.com Jake@jordanrichardspllc.com FAST SPONSOR: Adari Partners Sues Over Breaches of Two Contracts ---------------------------------------------------------------- Adari Partners, L.P. On behalf of all others similarly situated v. Fast Sponsor LLC, a Delaware limited liability company, Sandy Beall, Doug Jacob, Kevin Reddy, Ramin Arani, Alice Elliot, Sanjay Chadda, and Steve Kassin, Defendants; and Fast Acquisition Corp. (the "Company"), a Delaware corporation; Nominal Defendant, Case No. 2022-0760- (Del. Chancery Ct., Aug. 25, 2022), is brought against the Defendants concerning the Defendants' breaches of two contracts. First, the Defendants made a contract acknowledging that they have "no right, title, interest or claim of any kind in or to any asset of the Company as a result of any liquidation of the Company." Second, the Company's Certificate of Incorporation--a contract within the company and its shareholders—states: " in the event of any voluntary or involuntary liquidation, dissolution, or winding up of the Corporation, after payment or provision for payment of debt and other liabilities of the Corporation, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of common stock held by them." Thus, through these contracts, the Defendants promised: that they would not keep any Company assets for themselves at dissolution; and that all assets of the Company when it is dissolved shall be distributed to shareholders. Now, in breach of these contracts, the Defendants have claimed a right to the remainder, after debts are paid, of a multi-million-dollar settlement payment payable to the Company--not the Defendants--in the event of the Company "determines to liquidate and dissolve," which company has determined to do. The Defendants breach of their promises has caused the Company and its Class A shareholders to suffer damage s in the amount of at least $23.7 million, says the complaint. The Plaintiff is a current stockholder of FAST. Fast Sponsor LLC is a Delaware limited liability company.[BN] The Plaintiff is represented by: John G. Harris, Esq. Harry W. Shenton, Esq. BERGER HARRIS LLP 1105 N. Market Street, 11th Floor Wilmington, DE 19801 Phone: (302) 655-1140 Fax: (302) 655-1131 Email: jharris@bergerharris.com hshenton@bergerharris.com - and – Angus F. Ni, Esq. AFN LAW, PLLC 506 2nd Ave., Suite 1400 Seattle, WA 98104 Phone: (646) 453-7294 Email: angus@afnlegal.com - and – Times Wang, Esq. NORTH RIVER LAW PLLC 1300 I Street NW, Suite 400E Washington, DC 20005 Phone: (202) 838-6489 Email: twang@northriverlaw.com FLATIRON CONSTRUCTION: Rodriguez Suit Removed to E.D. California ---------------------------------------------------------------- The case styled JIMMY RODRIGUEZ, individually and on behalf of all others similarly situated v. SUKUT CONSTRUCTION, INC. dba Sukut, A JV; DRAGADOS USA INC dba Dragados; FLATIRON CONSTRUCTION CORPORATION dba Flatiron; and DOES 1-50, inclusive, Case No. BCV-22-101603, was removed from the Superior Court of the State of California in and for the County of Kern to the U.S. District Court for the Eastern District of California on September 16, 2022. The Clerk of Court for the Eastern District of California assigned Case No. 1:22-cv-01181-ADA-BAK to the proceeding. The case arises from the Defendants' alleged violations of the California Labor Code and the California's Business and Professions Code including failure to pay wages including overtime; failure to provide meal periods; failure to provide rest periods; failure to pay timely wages; failure to provide accurate itemized wage statements; failure to pay reporting time pay; failure to indemnify necessary business expenses; failure to accurately record and pay sick leave; and unfair business practices. Sukut Construction, Inc., doing business as Sukut, is a construction firm, headquartered in California. Dragados USA Inc., doing business as Dragados, is a construction firm, headquartered in New York, New York. Flatiron Construction Corporation, doing business as Flatiron, is a construction company, with its corporate headquarters in Colorado. [BN] The Defendant is represented by: Sabrina A. Beldner, Esq. Andrew W. Russell, Esq. Natalie M. Lagunas, Esq. MCGUIREWOODS LLP 1800 Century Park East, 7th Floor Los Angeles, CA 90067-1501 Telephone: (310) 315-8200 Facsimile: (310) 315-8210 E-mail: sbeldner@mcguirewoods.com arussell@mcguirewoods.com nlagunas@mcguirewoods.com FLORIDA: FAMU Students File Racial Discrimination Class Action -------------------------------------------------------------- Ezekiel J. Walker, writing for The Black Wall Street Times, reports that on Sept. 22, six Florida Agricultural & Mechanical University (FAMU) students filed a class-action lawsuit against the state of Florida over alleged racial discrimination, claiming that state politicians have deliberately denied the Historically Black college equal funding with the University of Florida, a predominantly White school. "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 lawsuit alleges. Filed in Florida's federal court, the lawsuit also accuses state higher education officials of duplicating academic programs FAMU is known for in an attempt to siphon enrollment from the school. Additionally, the lawsuit names Florida's higher education system, including Chancellor Marshall Criser III, as defendants. According to Forbes, in fall 2021, FAMU enrolled over 7,300 students, whereas UF enrolled 34,800 students. Despite the vast difference in size, FAMU educates more than three and a half times the number of African Americans than UF does. These statistics are similar across the South as HBCUs do the lion's share of the work educating African American students. HBCUs offer Black students opportunities PWIs do not The Biden-Harris Administration recognizes the influence of Black higher education, citing HBCUs have produced 40 percent of all Black engineers and 50 percent of all Black lawyers in America. Seventy percent of Black doctors in our country attended an HBCU, and 80 percent of Black judges are alumni of these schools. According to CBS News, FayeRachel Peterson, a FAMU graduate student in chemistry, said she was motivated to file the lawsuit after realizing early last month that she was paid poorly as a research assistant while her friend at Florida State University doesn't have to worry about working while studying for a master's degree. Peterson stated she believes her graduate stipend is so low because FAMU doesn't receive 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 on Sept. 23. The lawsuit is 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. 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. As this lawsuit's outcome is yet to be determined, one thing is certain: the days of Black students accepting porous conditions from inside or outside of their institutions due to a lack of funding are over and many are now challenging what has historically been the status quo. [GN] FORD MOTOR: Barnes Sues Over Transmission Defect ------------------------------------------------ Margaret Barnes, Eric Senkyrik, Michael Hogan, and Sharon Jackson, individually and on behalf of all others similarly situated v. FORD MOTOR COMPANY, Case No. 2:22-cv-06147-SB-AGR (C.D. Cal., Aug. 29, 2022), is brought on behalf of all persons in the United States who purchased or leased any 2017-2019 Ford Fiesta and 2017-2018 Ford Focus vehicles equipped with DPS6 dual clutch transmissions (the "Powershift Transmission" or "Transmission") (collectively, "Class Vehicles") designed, manufactured, marketed, distributed, sold, warranted, and/or serviced by Defendant, which contained Transmission Defect. Ford designed and marketed its "PowerShift Transmission" as a more advanced and fuel-efficient alternative to a traditional manual or automatic transmission, also known as an automated manual transmission. Theoretically, an automated manual transmission should have the convenience of an automatic transmission without sacrificing the fuel efficiency and shift speed of a manually shifted vehicle. In practice, however, Ford's PowerShift Transmission is plagued by numerous problems and safety concerns. The PowerShift Transmissions in the Class Vehicles suffer from a defect that causes, inter alia, transmission slips, bucking, kicking, jerking, harsh engagement, premature internal wear, sudden acceleration, delay in downshifts, delayed acceleration, difficulty stopping the vehicle, and eventually catastrophic transmission failure (the "Transmission Defect"). The Transmission Defect is caused by design, material, manufacturing, and/or workmanship defects of the transmission's "dry" clutches system which cause clutches to overheat and fail, as well as damage other transmission components. Moreover, the Transmission Defect may be exacerbated by improper programming in the Transmission Control Module ("TCM"), the computer which controls the automatic shifting of the Powershift Transmission. Finally, the Transmission Defect is also the result of manufacturing defects with other components within the Powershift Transmission. Ford has never acknowledged publicly that the Transmission Defect exists. To the contrary, Ford actively concealed, and continues to conceal, the Transmission Defect by, among other things, telling customers that the symptoms associated with the Transmission Defect were "normal driving conditions." Ford issued multiple Technical Service Bulletins ("TSBs") to dealers but never directly notified consumers of known problems with the PowerShift Transmission. Additionally, despite numerous TSBs, a well-known legal settlement, and pervasive press coverage regarding the very same PowerShift Transmission and Transmission Defect as those in Ford vehicles with earlier model years than the Class Vehicles, Ford continued to sell and lease the Class Vehicles with the defective PowerShift Transmission without informing consumers of such defect. The Transmission Defect has no known repair. Ford internally acknowledges that there is no permanent fix for the PowerShift Transmission that will eliminate the Transmission Defect. However, it continued to manufacture and distribute Class vehicles with the defective PowerShift Transmission through the 2019 model year. If the Plaintiffs and Class Members had known about the Transmission Defect at the time of sale or lease, Plaintiffs and Class Members would not have purchased or leased the Class Vehicles or would have paid less for them. As a result of their reliance on the Defendants' omissions, owners and/or lessees of the Class Vehicles suffered an ascertainable loss of money, property, and/or value of their Class Vehicles. Additionally, as a result of the Transmission Defect, the Plaintiffs and Class Members were harmed and suffered actual damages in that the Class Vehicles are defective, that they overpaid for defective vehicles, and that the Class Vehicles' PowerShift Transmissions increase their chances of being involved in a collision, says the complaint. The Plaintiffs' purchased one of Class Vehicles. Ford Motor Company designs and manufactures motor vehicles, parts, and other products for sale in the United States and throughout the world.[BN] The Plaintiffs are represented by: Tarek H. Zohdy, Esq. Cody R. Padgett, Esq. Laura E. Goolsby, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Phone: (310) 556-4811 Facsimile: (310) 943-0396 Email: Tarek.Zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com Laura.Goolsby@capstonelawyers.com - and - Russell D. Paul, Esq. Amey J. Park, Esq. Abigail J. Gertner, Esq. BERGER MONTAGUE P.C. 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Phone: (215) 875-3000 Facsimile: (215) 875-4604 Email: rpaul@bm.net apark@bm.net agertner@bm.net FOSTER GARVEY: Aids TelexFree's Ponzi Scheme, Dos Santos Suit Says ------------------------------------------------------------------ RITA DOS SANTOS, ANTHONY CELLUCCI, individually and on behalf of all others similarly situated, Plaintiffs v. FOSTER GARVEY, ROBERT C. WEAVER, SAMUEL KAUFFMAN, SARA SANDFORD, and GARY TOBER, Defendants, Case No. 2:22-cv-01315 (W.D. Wash., September 16, 2022) is a class action against the Defendants for civil conspiracy and tortious aiding and abetting. The case arises from the Defendants' alleged tortious aiding and abetting the Ponzi schemes of TelexFree, Inc., TelexFree LLC, TelexFree Financial, Inc., and their related entities, insiders and associates purported to be in the sale of long-distance telephone business. In reality, TelexFree had virtually no income from its purported business. Instead, it sold "memberships" to its unsophisticated victims falsely promising a guaranteed passive return. The resale of the Ad Central membership plans was at the heart of the pyramid scheme. As a result of the Defendants' misconduct, the Plaintiffs and similarly situated consumers purchased TelexFree memberships during the relevant period and have suffered financial losses, says the suit.[BN] The Plaintiffs are represented by: Nathan R. Ring, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 703 South, 8th Street Las Vegas, NV 89101 Telephone: (725) 235-9750 E-mail: NateR@bsjfirm.com - and - J. Gerard Stranch, Esq. Benjamin A. Gastel, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Ave., Ste. 200 Nashville, TN 37203 Telephone: (615) 254-8801 Facsimile: (615) 255-5419 E-mail: gerards@bsjfirm.com beng@bsjfirm.com - and - Robert J. Bonsignore, Esq. BONSIGNORE TRIAL LAWYERS, PLLC 23 Forest St. Medford, MA 02155 Telephone: (781) 856-7650 Facsimile: (702) 983-8672 E-mail: rbonsignore@classactions.us FRICKENSCHMIDT FOODS: Court Denies Bid to Transfer Adewol Suit -------------------------------------------------------------- Judge Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denies the motion to transfer the lawsuit styled OLUWAKEMI ADEWOL, et al., Plaintiffs v. FRICKENSCHMIDT FOODS LLC, et al., Defendants, Case No. 4:22 CV 254 CDP (E.D. Mo.), to the U.S. District Court for the Western District of Missouri. In this putative class action, named Plaintiffs Oluwakemi Adewol, Keisha Jackson, and Jemilat Suleiman allege that Defendants Frickenschmidt Foods LLC and Wicked Cutz LLC violated various state laws by mislabeling their Teriyaki Beef Wicked Cutz Beef Stick as "gluten free." Pending before the Court are several motions filed by both Plaintiffs and Defendants: Frickenschmidt's motion to transfer, Frickenschmidt's motion to dismiss, Plaintiffs' motion for default judgment against Wicked Cutz, Plaintiffs' motion for costs of service and attorney's fees against Wicked Cutz, and Wicked Cutz's cross-motion to vacate the clerk's entry of default. The Defendants produced, marketed, and distributed Teriyaki Beef Wicked Cutz Beef Sticks throughout the United States. In February 2022, Frickenschmidt recalled approximately 5,795 pounds of the beef sticks due to alleged misbranding: although the product contains and declares wheat as an ingredient, it incorrectly states "gluten free" on the label. On Feb. 28, just six days after the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced the recall, Adewol filed a class action complaint against Frickenschmidt alleging she paid a substantial premium for the product because it was labeled as "gluten free" and that she would not have purchased it had she known that the labeling was false. On March 12, 2022, the Plaintiffs filed an amended complaint adding Wicked Cutz as a co-defendant and Jackson and Suleiman as named plaintiffs. In their amended complaint, the Plaintiffs assert claims on behalf of a Multi-State Consumer Class, Maryland Class, Missouri Class, and Nationwide Class. Each class is made up of purchasers of the beef sticks in each respective jurisdiction. In Count 1, Adewol, a Maryland citizen, and Jackson, a Missouri citizen, claim on behalf of the Multi-State Class that the Defendants violated the consumer protection statutes of several states. In the alternative to Count 1, Counts 2 and 3 allege on behalf of the Maryland and Missouri Classes that the Defendants violated Maryland and Missouri's consumer protection statutes. Counts 4 through 6 allege breach of express warranty, breach of implied warranty, and unjust enrichment on behalf of the Nationwide Class. The Plaintiffs seek compensatory as well as punitive damages and injunctive relief. On June 6, 2022, Frickenschmidt moved to transfer the case to the Western District of Missouri. Essentially, Frickenschmidt argues that it would be onerous to travel and transport witnesses approximately 300 miles from its location in Lockwood, Missouri, to the Eastern District of Missouri courthouse in St. Louis. Frickenschmidt requests that the case be transferred to the Southern Division of the Western District of Missouri in Springfield--just fifty miles from Lockwood. On the same day as it filed its motion to transfer, Frickenschmidt filed a "Motion to Dismiss First Amended Class Action Complaint and Strike Allegations or, In the Alternative, Motion for a More Definite Statement." In it, Frickenschmidt argues federal law preempts the Plaintiffs' claims, the Plaintiffs failed to specify the law supporting their nationwide claims, the Plaintiffs failed to allege facts supporting various elements of their claims, and that the Plaintiffs lack standing to pursue injunctive relief because Frickenschmidt has already recalled the misbranded products. If any of the Plaintiffs' claims survive its motion to dismiss, Frickenschmidt requests that the Court order a more definite statement from Plaintiffs to allow Frickenschmidt to prepare a response. It also requests that the Court strike immaterial and impertinent allegations in the pleadings. Also pending before the Court are the Plaintiffs' motions for entry of default judgment and costs of service and attorney's fees against Wicked Cutz and Wicked Cutz's cross-motion to vacate entry of default. Wicked Cutz failed to respond to the Plaintiffs' timely waiver request and summons within the time required by the federal rules, and no counsel entered an appearance for Wicked Cutz until after the Clerk of Court filed an Entry of Default on May 25, 2022. On June 27, Wicked Cutz responded to the Plaintiffs' motions and filed a cross-motion to vacate the Clerk's Entry of Default. It explained that it failed to respond to the Plaintiffs' complaint and motions within the time required by the federal rules because it mistakenly believed that counsel for Frickenschmidt also represented it. The Plaintiffs later consented to Wicked Cutz's motion to vacate entry of default. Frickenschmidt's Motion to Transfer to the Western District of Missouri Frickenschmidt moves to transfer this case to the Western District of Missouri under 28 U.S.C. Section 1404(a). Frickenschmidt claims that transfer to the Western District is warranted because it processed, packaged, and labeled the beef sticks in the Western District, and thus relevant evidence and witnesses will be located there. Litigating in the Eastern District would be more costly, it argues, because it would have to expend resources to file subpoenas for key employee-witnesses and transport them to depositions or hearings in St. Louis, approximately 300 miles away from its location in Lockwood, Missouri. By contrast, the Western District of Missouri courthouse in Springfield is only 50 miles away from Lockwood. Moreover, it claims that the Western District has a greater interest in this litigation because the products at issue were produced there; this case's only connection to the Eastern District is that one of the named plaintiffs resides and purchased a beef stick there. The Plaintiffs respond that transferring to the Western District would merely shift the inconvenience onto the other parties, and the Court should defer to their choice of forum. As an initial matter, Judge Perry says she is skeptical of the Plaintiffs' claim that transfer would "come at a significant cost to every other Party in this action." The Plaintiffs cite only one such cost: the parties would have to travel through the Springfield airport rather than the St. Louis one. And though, as the Plaintiffs note, only Frickenschmidt is in the Western District, only one named Plaintiff resides in the Eastern District. Either way, all the other parties must travel to a district where they do not reside. However, Frickenschmidt bears the burden of proving that transfer is warranted. And Judge Perry agrees with the Plaintiffs that the specter of inconvenience is insufficient to justify transfer at this stage of litigation. She anticipates that much of the relevant evidence will be stored electronically. Thus, Frickenschmidt's physical location in Lockwood will likely not present the substantial impediments to discovery that Frickenschmidt claims. Frickenschmidt also does not identify any of the key witnesses it claims would be inconvenienced by litigating in the Eastern District, Judge Perry notes. Frickenschmidt merely provides an affidavit from Mr. Frickenschmidt explaining that individuals involved in the processing, packaging, and labeling of the Products work in Lockwood, Missouri. Moreover, the witnesses Frickenschmidt claims will be inconvenienced are its employees. And Frickenschmidt does not identify any non-party witnesses whose testimony may be required. The convenience of Frickenschmidt's employees is not immaterial but, at this stage of the litigation, largely conjectural, Judge Perry holds. The interests of justice do not favor transfer either, Judge Perry points out. She opines that Frickenschmidt correctly notes that the considerable deference to a plaintiff's choice of forum "is based on an assumption that the plaintiff's choice will be a convenient one," citing In re Apple, 602 F.3d 909, 913 (8th Cir. 2010). Frickenschmidt has not clearly shown that the balance of interests weighs in favor of disturbing the Plaintiffs' choice, Judge Perry holds. Hence, the motion to transfer is denied. Motion to Dismiss, to Strike Allegations, or for a More Definite Statement Frickenschmidt next moves to dismiss and strike allegations, or, in the alternative, for a more definite statement. In Frickenschmidt's memorandum in support of its motion, it argued that the Plaintiffs' claims were preempted by the Federal Food, Drug, and Cosmetic Act, the Nutrition Labeling and Education Act, and the FDA's extensive regulation of "gluten-free" labeling. But after the Plaintiffs responded that the FDA does not regulate the Defendants' Product, Frickenschmidt argued that the Plaintiffs' claims are preempted by the Federal Meat Inspection Act. Because Frickenschmidt raised this argument for the first time in its reply, the Plaintiffs have not had the opportunity to respond to it, Judge Perry says. She will, therefore, order the Plaintiffs to file a supplemental memorandum addressing Frickenschmidt's arguments relating to preemption before ruling on Frickenschmidt's motion. Motions for Default Judgment and Costs of Service and Attorney's Fees As explained, the Plaintiffs moved for default judgment and costs of service and attorney's fees against Wicked Cutz, but later consented to Wicked Cutz's cross-motion to vacate and withdrew their motion for default judgment. Judge Perry will, therefore, vacate the Clerk's Entry of Default against Wicked Cutz entered on May 25, 2022. In lieu of filing its own motion to dismiss, Wicked Cutz is joining Frickenschmidt's Motion to Dismiss, and has agreed to file its Answer to the Amended Complaint no later than fourteen days after the Court's ruling on the Motion to Dismiss. The Plaintiffs have not withdrawn their motion for costs of service and attorney's fees, however, and that motion remains pending. Because Wicked Cutz failed to return the waiver mailed to it on March 14, 2022, the Plaintiffs request $85 in service costs and $1,312.50 in attorney's fees incurred in the 1.5 hours expended in preparing and filing its motion and memorandum to recover its service costs. Wicked Cutz argues that good cause excuses its failure to return the waiver request because it mistakenly believed that Frickenschmidt's counsel, Mr. Berwin, was also representing it. Shortly after Wicked Cutz learned that it was a defendant in this action, Thomas Frickenschmidt, co-owner of Defendant Frickenschmidt, informed Wicked Cutz that Mr. Berwin would represent Wicked Cutz, as well. Mr. Frickenschmidt unintentionally relayed incorrect information, and Wicked Cutz only became aware that Mr. Berwin was not representing it after the Clerk's Entry of Default. Wicked Cutz also argues that defects in the Plaintiffs' waiver request excuse its failure. It claims that the Plaintiffs did not provide a notice giving it a reasonable time of at least 30 days after the request was sent to return the waiver as required by Rule 4(d)(1)(F) of the Federal Rules of Civil Procedure; did not address the request "to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process" as required by Rule 4(d)(1)(A)(ii); and did not accompany the notice with "a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form" as required by Rule 4(d)(1)(C). The Plaintiffs appear to concede that they failed to strictly comply with Rules 4(d)(1)(A) and (F), Judge Perry notes. They argue that they substantially complied with Rule 4 and, because Wicked Cutz admits that it failed to return the waiver because of miscommunications with its co-defendant, Wicked Cutz could not have been prejudiced by any defects. Judge Perry says she is not sure that the Plaintiffs substantially complied with Rule 4; at least one court has found that failure to inform a defendant of a due date to return the waiver, as required by 4(d)(1)(F), is "more than a technical violation." However, she needs not decide whether the Plaintiffs substantially complied with Rule 4 because the miscommunication about Wicked Cutz's counsel constitutes good cause. Although the Plaintiffs did not cause the miscommunication, Wicked Cutz's belief that Frickenschmidt's counsel would represent it was reasonable, Judge Perry states. The Court has found that such miscommunications can constitute good cause under similar circumstances. Because Wicked Cutz had good cause for failing to sign and return the waiver requested by the Plaintiffs, Judge Perry will deny the Plaintiffs' motion for costs of service and attorney's fees. Accordingly, Defendant Frickenschmidt's Motion to Transfer is denied without prejudice. The Plaintiffs' supplemental memorandum addressing Defendant Frickenschmidt's argument relating to preemption was due on Sept. 26, 2022. The Plaintiffs' Motion for Default Judgment is denied, and Wicked Cutz's Cross-motion to Vacate Clerk's Entry of Default is granted. The Plaintiff's Motion for Costs of Service and Attorney's Fees is denied. A full-text copy of the Court's Memorandum and Order dated Sept. 12, 2022, is available at https://tinyurl.com/57t5kkzk from Leagle.com. FU QIUMENG FINE ART: Young Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against FU Qiumeng Fine Art, LLC. The case is styled as Lawrence Young, and on behalf of all other persons similarly situated v. FU Qiumeng Fine Art, LLC, Case No. 1:22-cv-07297-KPF (S.D.N.Y., Aug. 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Fu Qiumeng Fine Art -- https://fuqiumeng.com/ -- is a New York-based art space.[BN] The Plaintiff is represented by: Bradly G. Marks, Esq. THE MARKS LAW FIRM, PC 155 East 55th St., Ste. 6a New York, NY 10022 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: brad@markslawpc.com FUNPLUS INTERNATIONAL: Prado Files Suit in N.D. California ---------------------------------------------------------- A class action lawsuit has been filed against FunPlus International AG, et al. The case is styled as Angela Prado, Staci Turner, Kimberly Surette, on behalf of themselves and all others similarly situated v. FunPlus International AG, a Swiss public limited company; KingsGroup Holdings, a Cayman Islands corporation, Case No. 4:22-cv-05023-YGR (N.D. Cal., Sept. 2, 2022). The nature of suit is stated Other Fraud. FunPlus -- https://funplus.com/ -- is a video game developer and publisher headquartered in Switzerland, with operations in China, Japan, Singapore, Spain, Sweden, and the United States.[BN] The Plaintiff is represented by: George Alexander Krebs, Esq. POLLOCK COHEN LLP 111 Broadway, Ste. 1804 New York, NY 10006 Phone: (212) 337-5361 Email: gkrebs@pollockcohen.com - and - Raphael Janove, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 667-7706 Fax: (610) 667-7056 Email: rafi@pollockcohen.com - and - Karl Stephen Kronenberger, Esq. KRONENBERGER ROSENFELD, LLP 150 Post Street, Suite 520 San Francisco, CA 94108 Phone: (415) 955-1155 Fax: (415) 955-1158 Email: karl@KRInternetlaw.com GEICO GENERAL INSURANCE: Day Suit Removed to M.D. Florida --------------------------------------------------------- The case styled as Roy A. Day, on behalf of himself and as class action on behalf of others similarly situated v. Geico General Insurance Company, Donald J. Trump, William P. Barr, Ellen A. Gorman, 21st Century Centennial Insurance Company, Kathryn Mizelle, James M. Shaw, Jr., Case No. 22-CA-002047 was removed from the Hillsborough County, to the U.S. District Court for Middle District of Florida on Sept. 2, 2022. The District Court Clerk assigned Case No. 8:22-cv-02042-SDM-MRM to the proceeding. The nature of suit is stated as Insurance for Insurance Contract. Geico General Insurance Company -- https://www.geico.com/ -- operates as an insurance company. The Company offers vehicle, property, motorcycle, boat, homeowners, flood, mobile home, general liability, and pet insurance.[BN] The Plaintiff appears pro se. The Defendant is represented by: Kristen Lindsay Wenger, Esq. John Patrick Marino, Esq. SMITH, GAMBRELL & RUSSELL, LLP 50 N Laura St Ste 2600 Jacksonville, FL 32202 Phone: (904) 598-6118 Fax: (904) 598-6218 Email: kwenger@sgrlaw.com jmarino@sgrlaw.com GUIDEHOUSE MANAGED: Valach FLSA Suit Goes to D. South Carolina -------------------------------------------------------------- The case styled ROBERT VALACH, individually and on behalf of all others similarly situated v. GUIDEHOUSE MANAGED SERVICES, LLC, Case No. 2022-CP-0801778, was removed from the Court of Common Pleas of Berkeley County, South Carolina, to the U.S. District Court for the District of South Carolina on September 16, 2022. The Clerk of Court for the District of South Carolina assigned Case No. 2:22-cv-03154-DCN to the proceeding. The case arises from the Defendant's alleged failure to pay overtime wages in violation of the Fair Labor Standards Act, failure to pay wages under the South Carolina Payment of Wages Act, and common-law unjust enrichment. Guidehouse Managed Services, LLC is a provider of consulting services, headquartered in Virginia. [BN] The Defendant is represented by: Stacie C. Knight, Esq. WINSTON & STRAWN LLP 300 South Tryon Street, 16th Floor Charlotte, NC 28202 Telephone: (704) 350-7700 Facsimile: (704) 350-7800 E-mail: sknight@wintson.com INOTIV INC: Oklahoma Police Named Lead Plaintiff in Grobler Suit ---------------------------------------------------------------- Judge Philip P. Simon of the U.S. District Court for the Northern District of Indiana, Hammond Division, LaFayette, grants the Motion of Oklahoma Police Pension and Retirement System for Appointment as Lead Plaintiff and Approval of its Selection of Counsel in the lawsuit entitled SERGIO GROBLER, individually and on behalf of all others similarly situated, Plaintiff v. INOTIV, INC., ROBERT W. LEASURE, and BETH A. TAYLOR, Defendants, Case No. 4:22-CV-045-PPS-JEM (N.D. Ind.). On June 23, 2022, Plaintiff Sergio Grobler commenced this putative class action against Defendants Inotiv, Inc., Robert W. Leasure, and Beth A. Taylor, alleging violations of the Securities Exchange Act of 1934. Grobler claims that the Defendants made various false or misleading statements or omissions concerning Inotiv's business, operations, and prospects in connection with the company's acquisition of Envigo RMS, LLC, and the "widespread and flagrant" violations of the Animal Welfare Act that were later discovered at its Cumberland, Virginia facility. The Defendants' statements or omissions allegedly caused investors, who purchased Inotiv securities between Sept. 21, 2021, and June 13, 2022, to suffer damages when the true details about the Cumberland facility emerged in the market, triggering a diminution in the value of the company's publicly traded shares. On the same date he filed his complaint, Grobler's counsel issued an early notice pursuant to the Private Securities Litigation Reform Act of 1995 (PSLRA). Publication of the required notice alerted other members of the putative class to the opportunity to seek appointment as lead plaintiff in the litigation. On Aug. 22, 2022, Grobler and four other sets of interested parties--respectively, Movants Rowena Ochoa; the Oklahoma Police Pension and Retirement System (Oklahoma Police); the City of Pontiac Reestablished General Employees Retirement System and the City of Pontiac Police and Fire Retirement System (collectively, City of Pontiac); and Fred Waelter and Chris M. Cavens--filed motions seeking appointment as lead plaintiff(s) and approval of their proposed class counsel. The queue has since dwindled. On Aug. 31, Ochoa filed a notice of nonopposition to the competing motions. On Sept. 6, Waelter and Cavens did the same, and Grobler filed a notice formally withdrawing his motion. On Sept. 7, the City of Pontiac withdrew its motion, as well. On Sept. 8, Grobler filed a second notice seeking to voluntarily dismiss his claims without prejudice, noting that the class claims "will continue to be pursued by the lead plaintiff appointed pursuant to the PSLRA." The last contestant remaining is the Oklahoma Police Pension and Retirement System, which filed a response to the competing motions on Sept. 6. Based on the competing filings, Oklahoma Police asserts that it has "the largest financial interest in this action," having sustained losses of approximately $424,178 on its investment in 71,189 shares of Inotiv common stock. Its losses dwarf the next highest claimed loss incurred by a competing movant--by nearly $300,000. Oklahoma Police requests appointment as lead plaintiff based on a statutory presumption that the party that has the largest financial interest should be appointed lead plaintiff in a securities class action. Adding to this, Oklahoma Police argues that no other movant has provided the Court with proof to rebut the applicable presumption; and it has further satisfied the adequacy and typicality requirements for appointment. On the record presented, Judge Simon finds Oklahoma Police satisfies the criteria required to trigger the statutory presumption that it is the most adequate plaintiff to lead the class. Oklahoma Police made a motion in response to the PSLRA notice within the 60-day deadline. Oklahoma Police has further demonstrated, both to the satisfaction of the competing movants and to the Court upon independent examination of its submissions, that it has the largest financial interest in the litigation. From Sept. 21, 2021, to June 13, 2022, Oklahoma Police purchased 71,189 shares of Inotiv common stock and sold 12,098 shares, racking up a net expenditure of $1,335,514 for 59,091 total shares with a value of $911,337 according to the average share price for the period June 14, 2022, to Aug. 18, 2022. Its estimated total loss comes out at $424,178--over three times greater than the total loss of the next movant. Additionally, its net expenditures, number of shares purchased, net shares purchased lend further support to the finding that Oklahoma Police has the largest financial interest in the case. Judge Simon also finds that Oklahoma Police also satisfies the requirements of Federal Rule 23. See Fed. R. Civ. P. 23(a). Oklahoma Police has demonstrated that its claims are typical of the class as a whole, as it purchased Inotiv common stock during the class period at artificially inflated prices allegedly caused by Defendants' false or misleading statements or omissions regarding the Envigo acquisition. Its claims thus mirror those of the class as a whole. Judge Simon is also persuaded that, as represented in its supporting declaration, Oklahoma Police's interests align with and are not antagonistic to the interests of other members of the proposed class. Oklahoma Police selected Berman Tabacco to serve as lead counsel and Cohen & Malad, LLP, to serve as liaison counsel for the class. Having concluded that the selected counsel will adequately represent the proposed class, Judge Simon will approve Oklahoma Police's selection of counsel. Accordingly, the Motion of Oklahoma Police Pension and Retirement System for Appointment as Lead Plaintiff and Approval of its Selection of Counsel is granted. The competing motions are denied as moot. Pursuant to 15 U.S.C. Sections 78u-4(a)(3)(B)(i) and (iii), Oklahoma Police Pension and Retirement System is appointed to serve as Lead Plaintiff. Pursuant to 15 U.S.C. Section 78u-4(a)(3)(B)(v), Berman Tabacco is approved as Lead Counsel, and Cohen & Malad, LLP, is approved as Liaison Counsel, on behalf of the proposed class. A full-text copy of the Court's Opinion and Order dated Sept. 12, 2022, is available at https://tinyurl.com/2p9xr5m7 from Leagle.com. INTERCONTINENTAL CAPITAL: Faces Dixon FLSA Suit in C.D. California ------------------------------------------------------------------ DREW DIXON, NICHOLAS PERRY, CHRISTOPHER RICHARDSON, ALEX TISKEVICH, and THAER ANAIM, on behalf of themselves and all others similarly situated, Plaintiffs v. INTERCONTINENTAL CAPITAL GROUP, INC. and DOES 1 through 100, inclusive, Defendant, Case No. 8:22-cv-01709 (C.D. Cal., September 16, 2022) is a class action against the Defendant for violations of the Fair Labor Standards Act, California Labor Code, and California's Business and Professions Code including failure to pay minimum wages, failure to pay overtime wages, failure to authorize and permit and/or make available meal and rest periods, failure to provide timely and accurate itemized wage statements, failure to reimburse business expenses, waiting time penalties, and unlawful business practices. The Plaintiffs were employed by the Defendant as a mortgage loan officer in Irvine, California at any time between 2019 and 2022. Intercontinental Capital Group, Inc. is a provider of mortgage loans, headquartered in Melville, New York. [BN] The Plaintiffs are represented by: Carolyn H. Cottrell, Esq. Esther L. Bylsma, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ccottrell@schneiderwallace.com ebylsma@schneiderwallace.com INTERCONTINENTAL HOTELS: Class Action Raises Duty of Care Issues ---------------------------------------------------------------- Mark Rasch, writing for Security Boulevard, reports that earlier this month, hotel giant InterContinental Hotels group suffered a ransomware attack that took their reservations and other platforms offline. It's not the first time that InterContinental Hotels suffered a data breach, nor was it the first time that a major hotel chain suffered a data breach. However, as a result of the ransomware attack, consumers were unable to reserve hotel stays, access their rewards programs or otherwise utilize the services of the hotel. So, obviously, a class-action lawsuit was filed. But the lawsuit was not filed by consumers, vendors or third parties. The lawsuit was filed by franchisees of the hotel chain who claimed that the hotel's failure to prevent the ransomware attack from disrupting their services prevented these franchisees from booking reservations and from servicing their own clients and customers. Because the franchisees were contractually obligated to deal only with the parent company and because the parent company had an exclusive obligation to provide technology services to the franchisees, the franchisees claimed in the lawsuit that the parent company was legally obligated to pay the damages resulting to the franchisees as a result of the ransomware attack. The lawsuit, filed September 15, 2022, in federal court in Atlanta, Georgia, alleged that the franchisees were "at the mercy" of the parent company and depended upon the parent company to obtain secure reservations. The complaint notes: "Plaintiffs and Class Members are truly at the mercy of IHG in that the License Agreement mandates that they have no choice but to use and to pay for IHG's reservation system ("IHG Concerto") and technology, but in the event of a data security incident that compromises the system and, in turn, makes it impossible for guests to book rooms on IHG Concerto (not to mention third party booking sites like Expedia and Booking.com), there is no recourse for them to obtain compensation. As a result of IHG's actions and inactions, Plaintiffs have incurred significant damages in the form of lost revenue from bookings, loss of consumer goodwill, additional (and unavoidable) use of employee time dealing with the fallout from the Data Breach, including working with guests on cancellations, re-bookings and related issues." The complaint further alleged that the parent company was obligated by contract to provide certain core services to the franchisees, including a working reservation system, a revenue management system, a content management system, guest relations services and hotel operations in sight, as well as to provide network connectivity, system integration and system interfaces between the hotel franchisees and the parent company. The franchisees not only relied on the continuing operation of these services and continuing functioning of the services but, under the franchise agreements, paid for these services from the parent company. This included entering into a master technology services agreement that set out the rules for connecting to the reservations and payment systems. On September 6, 2022, the parent company suffered a computer security incident which meant that its booking systems and mobile applications had been compromised and were unavailable for reservations. It also meant that the franchisees were unable to post prices (including discount prices) on third-party sites such as Expedia and Booking.com.The parent company reported the incident, both to the customers and franchisees. The class-action lawsuit alleged that the hotel chain took a, quote, "lackadaisical approach to data security" and that it had failed to adequately respond to the data breaches that occurred not only to the parent company but to other hotels and others in the hospitality and consumer-facing industries. The lawsuit noted that "hotels are an attractive target for hackers because they hold a lot of sensitive information including credit card and passport details but often don't have security standards as tough as those of more regulated Industries like banking." The class-action lawsuit also referenced numerous statements made by the parent company about the importance of cybersecurity, the company's commitment to cybersecurity and statements the parent company made in public filings about how it protected data. The complaint essentially alleged that the franchise agreement, technology agreements and other contracts between the franchisees and the parent company establish a duty on the part of the parent company not only to protect the confidentiality of data but the availability of data systems upon which the franchisees rely. Essentially, guaranteed uptime. In addition, they allege violations of the Georgia Uniform Deceptive Trade Practices Act by promising to the consuming public that they have adequate data security practices and incident response practices when, in fact, according to the complaint, the parent company's practices were inadequate. The complaint also alleged that the parent company was negligent in responding to prior data breaches, was negligent in protecting data and was negligent in preventing the ransomware attack which occurred earlier in September. What is interesting about the complaint is the allegation of a duty of due care on the part of the company not only to its customers, shareholders, vendors and suppliers but also to its employees and franchisees. While this theory is not unprecedented—and, indeed, the U.S. government alleged that Uber violated its duty to protect the confidentiality of its employees and drivers in failing to adequately respond to data breach—the case illustrates the fact that when a ransomware attack disrupts business and a company is unable to fulfill its contractual obligations to any third party, that third party may sue not only for for breach of the contractual obligations but also for potential breach of the duty to ensure the company is not attacked by ransomware. The duty to prevent data breaches and the duty to prevent ransomware are somewhat different duties. A data breach duty arises from the fact that a company is a custodian of personal data about a third party and may have made promises or representations about how it intends to protect that data, or I may have a legal obligation to protect that data provided by some data privacy or data security law. The duty to prevent ransomware, on the other hand, typically arises out of some service level agreement, where a company agrees to provide some product goods or services in a timely manner. In the case of the franchisees, they allege that they were wholly dependent upon the parent company to provide a full range of technological services and, when the parent company was unable to do so, whether negligently or not, they breached the contract to provide those services. The lesson that companies need to take to heart from this litigation is that the obligation to prevent ransomware so that a company can continue functioning appropriately implicates not only contractual obligations to provide goods and services but calls into question the general duty to prevent these disruptions through reasonable means. That duty may stand whether or not it impacts the customer's ability to perform. [GN] KENTUCKY: Order Partly Granting Cabinet Summary Judgment Upheld --------------------------------------------------------------- In the case, J. B-K., minor child 1, by Next Friend E.B., et al., Plaintiffs-Appellants v. SECRETARY OF KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; COMMISSIONER OF KENTUCKY DEPARTMENT FOR COMMUNITY BASED SERVICES; ELIZABETH CAYWOOD, in her official capacity as Deputy Commissioner of the Kentucky Department for Community Based Services, Defendants-Appellees, Case No. 21-5074 (6th Cir.), the U.S. Court of Appeals for the Sixth Circuit affirms the district court's order granting in part the Cabinet's summary judgment, except as to the Cabinet Custody Class. A group of foster caregivers sued the Kentucky Cabinet for Health and Family Services for denying foster care maintenance payments to children in the caregivers' care. On appeal, the Sixth Circuit must decide whether the district court properly construed Title IV-E of the Social Security Act in holding that these children were not eligible for foster care maintenance payments. Congress passed the Adoption Assistance and Child Welfare Act of 1980 ("the CWA") to, among other things, provide states with reimbursements for expenses associated with foster care and adoption programs. The CWA created the Title IV-E program of the Social Security Act, which sets conditions for states to receive reimbursements for foster care maintenance payments ("FCMPs") made on behalf of eligible children. Some of Title IV-E's conditions for participating states include having a state plan approved by the Secretary of the Department of Health and Human Services ("HHS"), having a designated state agency responsible for administering the state plan, and providing FCMPs to eligible children. If a state's program fails to "substantially conform" to the CWA's requirements, the Secretary allows the state an opportunity to implement a corrective plan and, if the state still fails to conform, withholds federal funding. Kentucky receives Title IV-E funds and has a state plan approved by the HHS Secretary. The Kentucky Cabinet for Health and Family Services administers the Commonwealth's state plan for foster care and adoption assistance as Kentucky's designated Title IV-E agency. The Cabinet operates the Department for Community Based Services ("DCBS"), a sub-agency that helps the Cabinet administer the state plan. Kentucky enacts statutes and regulations to implement the program. It also claims reimbursements under Title IV-E for FCMPs made to eligible recipients. Kentucky law governs Kentucky's foster care system. The Cabinet argues that only the last outcome, when a court commits a child to the custody of the Cabinet, "creates a real foster care relationship with a child and the Cabinet." So the Cabinet does not provide FCMPs to children placed by courts into the care of a relative or fictive kin. The Plaintiffs contend that placing a child in the care of a relative or fictive kin is the preferred outcome for the child, but that the Cabinet's position places those caregivers in an unjustified, disadvantageous position compared to non-relative caregivers who receive FCMPs. The Plaintiff caregivers brought a class action on behalf of themselves, the foster children, and members of four classes against the Cabinet and the DCBS. They accused the Cabinet of systematically denying FCMPs to eligible children without notice or a fair hearing, and doing so in a way that discriminated against relative caregivers. They sought injunctive and declaratory relief. For its part, the Cabinet opposed the injunction and moved for both dismissal and summary judgment. To begin with, the district court certified four classes: (1) a Children's Class, (2) a Caregivers' Class, (3) a Cabinet Custody Class, and (4) a Notice and Hearing Class. Next, it considered the parties' dueling dispositive motions. When the dust settled, the district court denied the Cabinet's motion to dismiss; denied the Plaintiffs' preliminary injunction; and granted the Cabinet's summary judgment in part, except as to the Cabinet Custody Class. It held that under Kentucky law, the Cabinet did not have placement and care responsibility over children not in their custody because the Cabinet had no ability to change a child's placement without a court order. So only members of the Cabinet Custody Class were eligible for FCMPs, assuming they met the other Section 672(a) requirements. Representatives for the three losing classes appealed, and the Cabinet did not cross-appeal the judgment as to the Cabinet Custody Class. The Sixth Circuit heard arguments from both parties but had lingering questions for HHS, which is not a party in the case. After all, the elephant in the room is whether HHS will reimburse Kentucky for FCMPs if the Sixth Circuit rules in the Plaintiffs' favor -- or if Kentucky would be left holding the bag. So it asked HHS Secretary Xavier Becerra for his position. And it also asked him to reconcile some regulatory language and HHS guidance that, in the Sixth Circuit's view, offered conflicting views on the question. HHS contended that "the Cabinet does not have placement and care responsibility for children removed from their homes and placed by court order into the custody of a relative or fictive kin." As support, it looked to Kentucky law and determined that, although the Cabinet performed some services for the children, "it did not assume legal responsibility for the children's day-to-day care, and it had no authority to change their placements." It then offered a second reason why members of the Children's Class were ineligible for FCMPs: Title IV-E requires children to be placed in a statutorily defined "foster family home," and these children were not. In response, the Plaintiffs argued that HHS, like the district court, misinterpreted Section 672(a)(2)(B) by looking to Kentucky law. They also argued that the "foster family home" point was irrelevant to the appeal, as the Cabinet never made the argument. The Cabinet didn't respond to either HHS' or the Plaintiffs' brief. First, the Sixth Circuit has a threshold issue to address. In its briefing, the Cabinet urges it to revisit its decision in D.O. v. Glisson, 847 F.3d 374, 381 (6th Cir. 2017). In that case, the Sixth Circuit found that the CWA confers an individually enforceable right to FCMPs. As it stands, it is with the majority in the private-right-of-action circuit split. The Sixth Circuit cannot grant the Cabinet's request. Putting aside whether it thinks that Glisson was correct, under the law-of-the-circuit doctrine, a "panel of the Court cannot overrule the decision of another panel" "unless an inconsistent decision of the Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision." So, until the Supreme Court says otherwise, or the Sixth Circuit rehears the case en banc, Glisson still binds them. So before the Sixth Circuit now, it has representatives from three of the Plaintiff classes arguing that the district court misinterpreted Section 672 when granting in part the Cabinet's motion for summary judgment. It reviews both grants of summary judgment and issues of statutory interpretation de novo. As to Title IV-E, the district court looked at Kentucky law and correctly identified that the Cabinet cannot change a child's placement without custody. And after considering the services the Cabinet provides to all children who are removed from their homes (the same services the Plaintiffs raise before the Sixth Circuit), the district court was "not prepared to say the Cabinet has 'placement and care' responsibility by virtue of providing services alone. The Sixth Circuit agrees, and it does so without reading custody into Title IV-E. It opines that a better way to think about custody is not as a requirement for eligibility under Title IV-E, but as an indicator under Kentucky law of who has (or doesn't have) placement responsibility. The Sixth Circuit finds support for its interpretation of Title IV-E in Kentucky law as well. Of course, Kentucky's foster-care system is governed by Kentucky law. And Kentucky law makes clear that the Cabinet does not have placement responsibility for the Plaintiffs. It also shows that in the Plaintiffs' case, it was the state judge making the placement, not the Cabinet. None of the services that the Cabinet provides to children situated like the Plaintiffs rises to the level of placement responsibility. Regarding HHS, the Sixth Circuit holds that its understanding of Title IV-E's plain text and Kentucky's implementation of its foster-care system tracks HHS' briefing. Like the Circuit Court, HHS understands Title IV-E's plain text and Kentucky law to mean that the Cabinet lacks placement responsibility over the Plaintiffs. So having employed the traditional tools of statutory interpretation on its own, teh Sixth Circuit also agrees with HHS' interpretation. The Sixth Circuit concludes that whether the Cabinet has placement and care responsibility over the Plaintiff-children is dispositive. Because it finds the Cabinet does not have placement responsibility, the Plaintiffs are not eligible for FCMPs under Title IV-E. It affirms the district court. A full-text copy of the Court's Sept. 16, 2022 Opinion is available at https://tinyurl.com/5n8hw8vr from Leagle.com. ARGUED: Douglas L. McSwain -- dmcswain@wyattfirm.com -- WYATT, TARRANT & COMBS, LLP, Lexington, Kentucky, for the Appellants. David Brent Irvin, KENTUCKY CABINET FOR HEALTH & FAMILY SERVICES, Frankfort, Kentucky, for the Appellees. ON BRIEF: Douglas L. McSwain, Thomas E. Travis -- ttravis@wyattfirm.com -- WYATT, TARRANT & COMBS, LLP, Lexington, Kentucky, Richard Frank Dawahare , Lexington, Kentucky, for the Appellants. David Brent Irvin, Leeanne Applegate, KENTUCKY CABINET FOR HEALTH & FAMILY SERVICES, Frankfort, Kentucky, for the Appellees. Catherine M. Padhi, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. KIA AMERICA: Baker Consumer Suit Removed to C.D. California ----------------------------------------------------------- The case styled MONIQUE E. BAKER and STEPHEN L. DESJARDINS, individually and on behalf of all others similarly situated v. KIA AMERICA, INC. and HYUNDAI MOTOR AMERICA, Case No. 30-2022-01277337-CU-NP-CXC, was removed from the Superior Court of the State of California for the County of Orange to the U.S. District Court for the Central District of California on September 16, 2022. The Clerk of Court for the Central District of California assigned Case No. 8:22-cv-01712 to the proceeding. The case arises from the Defendants' alleged breach of express warranty, breach of implied warranty, and violations of the California's Unfair Competition Law, the California's False Advertising Law, the Magnuson-Moss Warranty Act, the Michigan Consumer Protection Act, and the Oklahoma Consumer Protection Act by manufacturing, marketing, and selling Kia and Hyundai vehicles, model years 2011-2021, with defective ignition. Kia America, Inc. is an automobile manufacturer, with its principal place of business at 111 Peters Canyon Road, Irvine, California. Hyundai Motor America is an automobile manufacturer, with its principal place of business at 10550 Talbert Avenue, Fountain Valley, California. [BN] The Defendants are represented by: Kate T. Spelman, Esq. Alice S. Kim, Esq. JENNER & BLOCK LLP 515 South Flower Street, Suite 3300 Los Angeles, CA 90071-2246 Telephone: (213) 239-5100 Facsimile: (213) 239-5199 E-mail: KSpelman@jenner.com AKim@jenner.com org - and - Peter J. Brennan, Esq. JENNER & BLOCK LLP 353 North Clark Street Chicago, IL 60654-3456 Telephone: (312) 222-9350 Facsimile: (312) 527-0484 E-mail: PBrennan@jenner.com KIA AMERICA: DeKam Sues Over Vehicles' Defective Security System ---------------------------------------------------------------- CASEY DEKAM, JASON HENDRIX, and RYAN BEAULIEU, on behalf of themselves and all others similarly situated, Plaintiffs v. KIA AMERICA, INC., HYUNDAI MOTOR AMERICA, and HYUNDAI KIA AMERICA TECHNICAL CENTER, INC., Defendants, Case No. 2:22-cv-12198-PDB-JJCG (E.D. Mich., September 16, 2022) is a class action against the Defendants for violation of the Magnuson Moss Warranty Act, negligence, unjust enrichment, and breach of implied warranty. The case arises from the Defendants' manufacturing, marketing, and selling of defective Kia and Hyundai vehicles, model years 2011-2021. The Defendants concealed from consumers the affected vehicles' risk of theft. The specific issue with the affected vehicles is that they can be started with nothing more than a piece of metal. Moreover, the alarm systems on the affected vehicles do not sound when a window is broken. This means that a thief can break a window to get access to the vehicle, without setting off any alarm, strip the steering column, use a piece of metal to start the car, and then drive off with the vehicle. The Plaintiffs and Class members seek all damages permitted by law, including diminution in value of their vehicles, in an amount to be proven at trial, says the suit. Kia America, Inc. is an automobile manufacturer, with its principal place of business at 111 Peters Canyon Road, Irvine, California. Hyundai Motor America is an automobile manufacturer, with its principal place of business at 10550 Talbert Avenue, Fountain Valley, California. Hyundai Kia America Technical Center, Inc. is a company engaged in the business of automobile vehicle testing, developing, manufacturing, labeling, marketing, distributing, supplying, and/or selling, with its principal place of business at 6800 Geddes Road, Superior Township, Michigan. [BN] The Plaintiffs are represented by: Paul Matouka, Esq. OLIVER LAW GROUP, P.C. 1647 W. Big Beaver Rd. Troy, MI 48084 Telephone: (248) 327-6556 Facsimile: (248) 436-3385 E-mail: notifications@oliverlawgroup.com KIN INSURANCE: Raslavich FTSA Suit Removed to M.D. Florida ---------------------------------------------------------- The case styled BENJAMIN RASLAVICH, individually and on behalf of all others similarly situated v. KIN INSURANCE, INC., Case No. 2022-CA-006632, was removed from the Thirteenth Judicial Circuit Court in and for Hillsborough County, Florida, to the U.S. District Court for the Middle District of Florida on September 16, 2022. The Clerk of Court for the Middle District of Florida assigned Case No. 8:22-cv-02163-MSS-SPF to the proceeding. The case arises from the Defendant's alleged violation of the Florida Telephone Solicitation Act by sending telephonic sales calls using an automated system on the telephone numbers of the Plaintiff and similarly situated consumers without obtaining their prior express written consent. Kin Insurance, Inc. is an insurance company, with its principal place of business in Chicago, Illinois. [BN] The Defendant is represented by: Yaniv Adar, Esq. Josh A. Migdal, Esq. MARK MIGDAL & HAYDEN 80 S.W. 8th Street, Suite 1999 Miami, FL 33130 Telephone: (305) 374-0440 E-mail: yaniv@markmigdal.com josh@markmigdal.com KOPPERS INC: Maryland Court Tosses Bryant Products Liability Suit ----------------------------------------------------------------- In the lawsuit entitled LARRY BRYANT et al., Plaintiffs v. KOPPERS, INC., et al., Defendants, Case No. RDB-21-2008 (D. Md.), Judge Richard D. Bennett of the U.S. District Court for the District of Maryland grants the Defendants' motions to dismiss, and dismissed with prejudice the Plaintiffs' Amended Complaint. Plaintiffs Larry Bryant and Deidra Bryant bring this products liability action on their own behalf and, as a putative class action, on behalf of others similarly situated against Defendants Koppers, Inc., Culpeper of Federalsburg, LLC, Culpeper of Columbia, Inc., Culpeper of Fredericksburg, Inc., and Culpeper of Fruitland, LLC, seeking monetary relief for damage to a wooden deck affixed to their home. Presently pending are Defendant Koppers, Inc.'s, Motion to Dismiss, Defendants Culpeper of Federalsburg, LLC, Culpeper of Fredericksburg, Inc., and Culpeper of Fruitland, LLC's collective Motion to Dismiss, and Defendant Culpeper of Columbia, Inc.'s, Motion to Dismiss. On June 27, 2007, the Plaintiffs contracted with ProBuilt Construction, Inc., to build a deck affixed to their home in Crownsville, Maryland. Defendants Culpeper of Federalsburg, LLC, Culpeper of Columbia, Inc., Culpeper of Fredericksburg, Inc., and Culpeper of Fruitland, LLC (collectively, "Culpeper Defendants") design, manufacture, treat, and sell pressure-treated lumber, which was used in the construction of the Plaintiffs' deck. Defendant Koppers, Inc. ("Koppers"), supplies chemicals used to treat chemically-treated wood, presumably for the type of wood used in the construction of the Plaintiffs' deck. The Plaintiffs' deck was built in September 2009 for $145,096, accounting for the cost of design, materials, and labor. The Plaintiffs' deck was constructed eight to ten feet tall with pressured-treated wood that was treated by the Culpeper Defendants with chemicals manufactured by Koppers in order to preserve the wood from rot, mold, fungi, and the like. Ten years after construction, at some point in 2019, Plaintiff Deidra Bryant fell on her deck when a support beam "gave way." Ms. Bryant did not suffer major injuries. After Ms. Bryant's fall, the Plaintiffs inspected the deck and observed wood joists rotting, decaying, and caving. As a result, the wood joists did not fully support the deck boards and caused "a major structural safety hazard." The rotting and decay in various joists were only visible upon removal of the deck boards. Once the deck boards were removed, the Plaintiffs observed that the deck stairs stringer was also extensively decayed. The Plaintiffs attribute the deck's deteriorated condition to a fungus, which rots wood from the inside out, and causes a visible white residue on the wood. The Plaintiffs allege that their deck is no longer structurally sound for use and there is "imminent danger of collapse" thereby, creating an extreme safety hazard. The Plaintiffs filed suit on Aug. 9, 2021, some two years after Mrs. Bryant's fall, against Defendant Koppers, Inc., and Defendant Culpeper of Federalsburg, LLC. Koppers and Culpeper of Federalsburg filed motions to dismiss, to which the Plaintiffs responded in opposition and simultaneously filed an Amended Complaint on Nov. 1, 2021. The Plaintiffs' Amended Complaint added Defendants Culpeper of Columbia, Inc., Culpeper of Fredericksburg, Inc., and Culpeper of Fruitland, LLC, and asserts that if the wood used to construct the deck had been properly treated by the Culpeper Defendants with an appropriate chemical manufactured by Koppers, then the fungus would not have formed on the deck and the deck would be fit for normal use. The Plaintiffs' Amended Complaint seeks relief against all Defendants based on four counts: negligence (Count I); strict products liability (Count II); unfair or deceptive trade practices (Count III), and; breach of warranty (Count IV). All Defendants filed respective Motions to Dismiss. Defendant Koppers' Motion to Dismiss argues that Counts I and II are barred by Maryland's economic loss doctrine, Count III does not meet the standard of particularity for fraud allegations, and Count IV fails to state a claim upon which relief may be granted. Defendants Culpeper of Federalsburg, LLC, Culpeper of Fredericksburg, Inc., and Culpeper of Fruitland, LLC's collective Motion to Dismiss iterates the same arguments as detailed in Koppers' Motion. Defendant Culpeper of Columbia, Inc.'s ("Culpeper of Columbia") Motion to Dismiss argues foremost that the Court lacks personal jurisdiction, but also that the Plaintiff's Amended Complaint should be dismissed for failure to state a claim upon which relief may be granted. Defendant Culpeper of Columbia's Motion to Dismiss argues the Court lacks personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) to adjudicate the Plaintiffs' claims against it. The remaining Defendants seeks dismissal under the Federal Rule of Civil Procedure 12(b)(6) standard. Judge Bennett finds that the Plaintiffs have failed to demonstrate that the Court has personal jurisdiction over Defendant Culpeper of Columbia, which is alleged to be a Virginia corporation with its principal place of business in South Carolina. The Plaintiffs have not provided any basis for the Court to exercise general jurisdiction over Culpeper of Columbia. The Plaintiffs have also failed to make a prima facie showing that Culpeper of Columbia is amenable to the Court's specific jurisdiction. As a result, Judge Bennett holds that the Court lacks personal jurisdiction over Defendant Culpeper of Columbia, and its Motion to Dismiss is granted. The Court additionally notes that, even if the Court exercised personal jurisdiction over Defendant Culpeper of Columbia, the Plaintiffs' claims nonetheless are dismissed with prejudice for the reasons explained here as to the other Defendants. Specifically, there is simply no plausible claim for relief stated against it. Defendant Koppers' Motion to Dismiss and the remaining Culpeper Defendants' Motion to Dismiss present virtually the same arguments in support of dismissal, Judge Bennett says. Counts I and II (Negligence and Strict Liability) The Plaintiffs' claims of negligence and strict liability are barred by the economic loss rule under Maryland law, Judge Bennett holds. The Defendants argue that the Plaintiffs seek relief on these tort claims for purely economic loss which is barred from recovery under the economic loss rule. The Defendants additionally contend that the public safety exception to the economic loss rule is inapplicable because there was no serious risk of death or personal injury. Indeed, the Amended Complaint in this case does not claim any serious injury to Mrs. Bryant as the result of her fall in 2019. Nevertheless, the Plaintiffs argue two alternative grounds: (1) the wood itself is damaged, which in turn damaged the remainder of the deck, thereby constituting "physical harm to property other than the product itself" and (2) even if the wood and deck are viewed as one piece of property and its damage is categorized as purely economic loss, the public safety exception to the economic loss rule applies. Judge Bennett holds that the Plaintiffs' attempt to differentiate between the damage done to the wood, which comprises the deck and the damage to the deck as a whole is unconvincing. Judge Bennett explains that where the wood used to construct a deck becomes damaged, the damage is done to the deck itself. Consequently, the Plaintiffs seek relief for damage done to the product itself, which is barred by the economic loss rule. The Plaintiffs' alternative argument similarly fails, and the exception to the economic loss rule does not apply, Judge Bennett holds. Even accepting the facts alleged as true, the Plaintiffs' Amended Complaint merely recites the legal conclusion that the deck may cause serious risk of personal injury. Without more, Judge Bennett points out, this "threadbare recital" of the exception to the economic loss rule does not meet the Federal Rule of Civil Procedure 12(b)(6) pleading standard. Because the Plaintiffs' Counts I and II are barred by the economic loss doctrine, the Defendants' Motions are granted and Counts I and II are dismissed with prejudice. Count III (Unfair or Deceptive Trade Practices) The Plaintiffs assert that the Defendants' representation that its product would not be impacted by fungal decay was a false or misleading written statement, visual description, or other representation under Maryland Consumer Protection Act, Md. Code, Commercial Law Section 13-303, as defined by Section 13-301(1). The Maryland Consumer Protection Act ("MCPA") prohibits "unfair, abusive, or deceptive trade practice" in the sale or offer for sale "of consumer goods, consumer realty, or consumer services." Judge Bennett finds that the Plaintiffs have failed to satisfy the heightened pleading standard necessary for an allegation of fraud under the Maryland Consumer Protection Act. Defendant Koppers aptly notes that "the Amended Complaint is devoid of allegations as to the time, place or other circumstances of the allegedly false representation." Instead, Judge Bennett says, the Plaintiffs provide Culpeper Defendants' website URL and allege that the Defendants falsely represented to consumers before that the wood they treated and the chemicals they supplied for this treatment would be protected from fungal decay. The Plaintiffs do not detail when this representation was made or by whom. Additionally concerning, the Plaintiffs never allege that the Defendants made these representations to them, or that they were even aware of the existence of the brochure when they signed their contract with ProBuilt in 2007. Given the timeframe of the contract between ProBuilt and when the deck was built, it is simply conjecture that this representation was even made between 2007-2009. The Amended Complaint fails to provide more than recitation of the elements of a claim under MCPA, Judge Bennett observes. Accordingly, the Plaintiffs' MCPA claim in its Amended Complaint fails to state a claim upon which relief may be granted. Therefore, the Defendants' Motions are granted and Count III is dismissed with prejudice. Count IV (Breach of Warranty) The Plaintiffs' Amended Complaint alleges that the Defendants breached "warranties" in that the product was not of good and merchantable quality, was not suitable for performing the function for which it was intended, and was not properly designed, manufactured, inspected, or tested. The Plaintiffs' oppositions clarify that it seeks recovery under an implied warranty of merchantability. Here, Judge Bennett notes, the Plaintiffs are not "buyers" of "goods." Instead, the Plaintiffs are "buyers" of a deck through a contract with ProBuilt. ProBuilt, in turn, "bought" the wood. Although the Plaintiffs contend that they bought the lumber necessary for building the deck, as the Defendants emphasize, nowhere in the Amended Complaint do the Plaintiffs allege that they contracted with ProBuilt for the purchase of lumber, nor that they even discussed the terms of that purchase with ProBuilt. Moreover, the Plaintiffs specifically allege that they paid ProBuilt only after the deck was fully constructed. In other words, at most, the Plaintiffs allege that the price ProBuilt ultimately billed them for the deck encompassed all of ProBuilt's costs in constructing the deck, including materials. Therefore, the Plaintiffs are not buyers of a "good" as the wood became affixed to the home as part of the deck, and the Plaintiffs contracted and paid for construction of a deck, which is not "moveable." Accordingly, Judge Bennett opines that the Plaintiffs' implied breach of warranty claim in its Amended Complaint fails to state a claim upon which relief may be granted. Therefore, the Defendants' Motions to Dismiss are granted and Count IV is dismissed with prejudice. For the reasons stated, the Court lacks personal jurisdiction over Defendant Culpeper of Columbia and its Motion to Dismiss is granted. Because the Plaintiffs have failed to state any claim upon which relief may be granted, Defendant Koppers, Inc.'s, Motion to Dismiss is granted and Defendants Culpeper of Federalsburg, LLC, Culpeper of Fredericksburg, Inc., and Culpeper of Fruitland, LLC's collective Motion to Dismiss is granted. Therefore, the Plaintiffs' Amended Complaint is dismissed with prejudice. A full-text copy of the Court's Memorandum Opinion dated Sept. 12, 2022, is available at https://tinyurl.com/yc388bae from Leagle.com. LASCANA FASHION: Raslavich Sues Over Unsolicited Phone Call Ads --------------------------------------------------------------- ANNA RASLAVICH, individually and on behalf of all others similarly situated, Plaintiff v. LASCANA FASHION, INC., Defendant, Case No. 157130789 (Fla. 13th Jud. Cir. Ct., September 9, 2022) is a class action complaint brought against the Defendant for its alleged violations of the Florida Telephone Solicitation Act. The Plaintiff alleges that the Defendant has sent telephonic sales calls to her telephone number on or after July 1, 2021 in an attempt to promote its products and services. The Defendant's telephonic sales calls allegedly involved an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed. In addition, the Defendant did not secure the Plaintiff's prior express written consent to receive such telephonic sales calls. Moreover, the Defendant has caused to send the same telephonic sales calls to other individuals in Florida without obtaining their prior express written consent, says the suit. As a result of the Defendant's alleged unsolicited telephonic sales calls, the Plaintiff and other similarly situated individuals were aggrieved. Thus, the Plaintiff seeks an injunction requiring the Defendant to cease all telephonic sales calls made without express written consent. The Plaintiff also seeks to recover damages, for herself and for other similarly situated individuals, as well as statutory damages, reasonable attorney's fees and court costs, and other relief as the Court deems necessary. Lascana Fashion, Inc. offers beautiful clothing, swimwear, and lingerie specially developed women for women. [BN] The Plaintiff is represented by: Benjamin W. Raslavich, Esq. KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Tel: (813) 422-7782 Fax: (813) 422-7783 E-mail: ben@theKRfirm.com LIBERTY MUTUAL: Penegar Appeals Insurance Suit Dismissal --------------------------------------------------------- Plaintiff Carra Jane Penegar filed an appeal from the District Court's Order and Clerk's Judgment dated August 15, 2022 entered in the lawsuit entitled CARRA JANE PENEGAR, Executrix of the Estate of JOHNNY RAY PENEGAR, JR., individually and on behalf of others similarly situated v. LIBERTY MUTUAL INSURANCE COMPANY, LIBERTY MUTUAL FIRE INSURANCE COMPANY, VERISK ANALYTICS, INC., and ISO CLAIMS PARTNERS, INC., Case No. 3:20-cv-00585, in the U.S. District Court for the Western District of North Carolina at Charlotte. The lawsuit arises from the Defendants' uniform systems and practices for failing to reimburse Medicare claims for the Plaintiff and other claimants. According to the complaint, the Plaintiff's decedent, her husband Mr. Penegar, was over age 65 and a Medicare beneficiary when he was diagnosed with the asbestos-related cancer, mesothelioma. He received medical care covered by Medicare, which extended his life. He brought a workers' compensation claim against the employer at whose workplace he was exposed to asbestos in the past, alleging that this workplace exposure was a proximate cause of his mesothelioma diagnosis. He also named in that claim Liberty Mutual as the workers' compensation carrier in that matter. However, the employer and its insurance carrier, Liberty Mutual, denied the claim. Medicare ran up a significant bill covering the chemotherapy, surgery and other treatment for Mr. Penegar's illness. On March 18, 2022, Magistrate Judge David C. Keesler issued a Memorandum and Recommendation granting the Defendants' May 24, 2021 motions to dismiss, and denying as moot Plaintiff's October 19, 2021 motion for hearing. On August 15, 2022, District Judge Robert J. Conrad, Jr. entered an Order adopting the Magistrate Judge's Memorandum and Recommendation. Judgment was also entered in accordance with the Court's Order. The appellate case is captioned as Carra Penegar v. Liberty Mutual Insurance Company, Case No. 22-1940, in the U.S. Court of Appeals for the Fourth Circuit, filed on Sept. 8, 2022.[BN] Plaintiff-Appellant CARRA JANE PENEGAR, Executrix of the Estate of Johnny Ray Penegar, Jr., individually and on behalf of others similarly situated, is represented by: William Marc Graham, Esq. John S. Hughes, Esq. Edward L. Pauley, Esq. Mona Lisa Wallace, Esq. WALLACE & GRAHAM, PA 525 North Main Street Salisbury, NC 28144-0000 Telephone: (704) 633-5244 - and - Vernon Rollins Sumwalt, Esq. SUMWALT GROUP 1213 West Morehead Street Charlotte, NC 28208 Telephone: (704) 565-0621 Defendants-Appellees LIBERTY MUTUAL INSURANCE COMPANY, et al., are represented by: T. Nicholas Goanos, Esq. Lewis Andrew Watson, Esq. BUTLER WEIHMULLER KATZ CRAIG 11605 North Community House Road Charlotte, NC 28277 Telephone: (704) 543-2321 - and - Matthew J. Lavisky, Esq. BUTLER WEIHMULLER KATZ CRAIG, LLP 400 North Ashley Drive Tampa, FL 33602 Telephone: (813) 594-5656 - and - Stephen Daniel Feldman, Esq. ROBINSON, BRADSHAW & HINSON, P.A. 434 Fayetteville Street Raleigh, NC 27601 Telephone: (919) 239-2603 - and - Kim Elizabeth Rinehart, Esq. WIGGIN & DANA LLP 265 Church Street New Haven, CT 06510 Telephone: (203) 498-4400 LOANCARE LLC: Tederick Sues Over Unfair Debt Collection ------------------------------------------------------- Gary Tederick and Lisa Tederick, individually and on behalf of all others similarly situated v. LOANCARE, LLC, Case No. 2:22-cv-00394-RAJ-LRL (E.D. Va., Sept. 20, 2022), is brought against the Defendants violation of the fair debt collection provisions of the West Virginia Consumer Credit and Protection Act. Throughout the life of their mortgage loan, the Plaintiffs consistently exercised their right under the Note and Deed of Trust to make prepayments against the principal owed under the Note. Initially, the Plaintiffs made prepayments in the amount of $100 each month, but in or around May 29, 2006, the Plaintiffs raised their monthly prepayment to $300. Whenever they were able, Plaintiffs made even higher prepayments. The Plaintiff wrote one check for their monthly payment and the prepayment, specifying in the check's memo line that prepayment was included in the total amount. Under the terms of the note, the Plaintiffs' mortgage loan accrued scheduled interest. Therefore, the Plaintiffs did not owe interest until the scheduled monthly payment due at the first of the month. Between February 2, 2005 and December 20, 2019, the Plaintiffs made 172 combined prepayments and scheduled monthly payments before the due date of the scheduled monthly payment. Between February 2, 2005 and December 20, 2019, on at least 144 of these 172 occasions, a servicer failed to apply the Plaintiffs' prepayment and scheduled monthly payment in the correct order. On each of those occasions, the servicer first applied the scheduled monthly payment to the unpaid balance of the loan and then applied the Plaintiffs' prepayment. As a result of the servicers' incorrect order of prepayments, the Plaintiffs were charged interest that they did not owe and should not have been charged. LoanCare became subservicer of the Plaintiffs' mortgage loan on April 1, 2019, at which time LoanCare began accepting and applying the payments the Plaintiffs made on their mortgage loan. The Plaintiffs contacted LoanCare to explain the previous misapplication of prepayments and requested that LoanCare correct the account to reflect the correct amount of interest. LoanCare not only failed to correct the Plaintiffs' account, it continued to apply the Plaintiffs' prepayments in the incorrect order. Therefore, by applying the Plaintiffs' scheduled monthly payment prior to the applying the prepayment, Defendant failed to accurately reduce the misstated the amount of the Plaintiff's unpaid principal every month. Instead of correcting the Plaintiffs' account, Defendant continued the erroneous practice of applying the Plaintiffs' prepayment only after applying their scheduled monthly payment. The Defendant's collection of amounts due under the Plaintiffs' mortgage loan violates the WVCCPA, says the complaint. The Plaintiffs are "consumers" who are residents of Berkeley County, West Virginia. The Defendant has been engaged in the debt collection of amounts due and owed on mortgage loans.[BN] The Plaintiff is represented by: Peter A. Pentony, Esq. Cory R. Ford, Esq. WILLIAMSFORD 101 Loudoun Street, SW Leesburg, VA 20175 Phone: (703) 777-6535 Fax: (703) 777-6963 MANPOWER TEMPORARY: Faces Wage-and-Hour Class Action Lawsuit ------------------------------------------------------------ The San Diego labor law attorneys, at Zakay Law Group, APLC and JCL Law Firm, APC, filed a class action complaint against (1) Manpower Temporary Services f.k.a. CPM, LTD. which will be doing business in California as Manpower Temporary Services; (2) CPM, LTD.; (3) C.L.M.P., LTD.; and (4) Equus Workforce Solutions (collectively, "Manpower Temporary Services"), for allegedly failing to accurately pay employees' wages for all their time worked. The Manpower Temporary Services class action lawsuit, Case No. 37-2022-00030943-CU-OE-CTL, is currently pending in the San Diego County Superior Court of the State of California. A copy of the Complaint can be read here. According to the lawsuit, Manpower Temporary Services allegedly violated California Labor Code Sections Sections 201, 202, 203, 204, 226, 226.7, 246, 510, 512, 558, 1194, 1197, 1197.1, 1198, and 2802 by failing to: (1) pay minimum wages; (2) pay overtime wages; (3) provide required meal and rest periods; (4) provide accurate itemized wage statements; (5) pay wages when due; and (6) reimburse for required business expenses. California Labor Code Section 226 requires an employer to furnish its employees an accurate itemized wage statement in writing showing (1) gross wages earned, (2) total hours worked, (3) the number of piece-rate units earned and any applicable piece-rate, (4) all deductions, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of the employee's social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer and, (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. Manpower Temporary Services allegedly failed to provide its employees with accurate itemized wage statements that complied with all the requirements of California Labor Code Section 226. If you would like to know more about the Manpower Temporary Services lawsuit, please contact Attorney Jackland Hom today by calling (619) 255-9047. Zakay Law Group, APLC and JCL Law Firm, APC are labor and employment law firms with offices located in California that dedicate their practices to fighting for employees who have been wronged by their employers due to unfair employment practices. Contact one of their attorneys today if you need help with workplace issues regarding wage and hour, wrongful termination, retaliation, discrimination, and harassment. [GN] MARCO'S PIZZA: Boettcher Sues Over Delivery Drivers' Unpaid Wages ----------------------------------------------------------------- MARY BOETTCHER, individually and on behalf of all others similarly situated, Plaintiff v. MARCO'S PIZZA, INC., Defendant, Case No. 3:22-cv-01653 (N.D. Ohio, September 16, 2022) is a class action against the Defendant for failure to reimburse business expenses and failure to comply with tip credit notice requirements in violation of the Fair Labor Standards Act and Ohio Minimum Fair Wage Standards Act. The Plaintiff worked as a delivery driver at Marco's Pizza store located at 1142 Pearl Rd., Brunswick, Ohio from approximately August 1, 2021 through November 30, 2021. Marco's Pizza, Inc. is a pizza store owner and operator based in Ohio. [BN] The Plaintiff is represented by: James L. Simon, Esq. SIMON LAW CO. 5000 Rockside Road Liberty Plaza, Suite 520 Independence, OH Telephone: (216) 816-8696 E-mail: james@simonsayspay.com - and - Michael L. Fradin, Esq. THE LAW OFFICE OF MICHAEL L. FRADIN 8401 Crawford Ave., Ste. 104 Skokie, IL 60076 Telephone: (847) 644-3425 Facsimile: (847) 673-1228 E-mail: mike@fradinlaw.com MCCORMACK CONTRACTING: Resantez Sues Over Failure to Pay OT Wages ----------------------------------------------------------------- CARLOS ADRIAN RUBIO RESANTEZ, individually and on behalf of all others similarly situated, Plaintiff v. MCCORMACK CONTRACTING INC. and JOHN AIDEN MCCORMACK, as an individual, Defendants, Case No. 1:22-cv-05392 (E.D.N.Y., September 9, 2022) is a collective action complaint brought against the Defendants for its alleged egregious violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants from in or around October 2021 until in or around August 2022 as a helper and performing carpentry works while performing related miscellaneous duties for the Defendants. According to the complaint, the Plaintiff was regularly required by the Defendants to work approximately 50 hours each week throughout his employment with the Defendants. However, the Defendants deprived him of his lawfully earned overtime compensation at the rate of one and one-half times his regular rate of pay for all hours worked in excess of 40 per workweek. Moreover, the Defendants willfully failed to keep payroll records; willfully failed to provide the Plaintiff with any wage statements upon each payment of his wages; willfully failed to provide the Plaintiff with a written notice of his applicable regular rate of pay, regular pay day, and all such information; and willfully failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment as required by both the FLSA and NYLL, says the suit. On behalf of himself and all other similarly situated helpers, the Plaintiff seeks to recover unpaid overtime wages, liquidated damages, pre- and post-judgment interest, litigation costs together with reasonable attorneys' fees, and other relief as the Court deems necessary and proper. McCormack Contracting Inc. is a residential and commercial contractor specializing in kitchens, electrical, plumbing and flooring. John Aiden McCormack is the owner of the Corporate Defendant. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Tel: (718) 263-9591 MDL 2744: FCA's Bid to Decertify Class in Gearshift Suit Denied --------------------------------------------------------------- In the multidistrict litigation entitled IN RE: FCA US LLC MONOSTABLE ELECTRONIC GEARSHIFT LITIGATION, MDL No. 2744, Case No. 16-md-02744 (E.D. Mich.), Judge David M. Lawson of the U.S. District Court for the Eastern District of Michigan, Southern Division, issued an Opinion and Order: (1) denying the Defendant's second motion to decertify class; (2) denying the Plaintiffs' motion to submit two additional questions to the jury; and (3) granting the Plaintiffs' motion to clarify a previous evidentiary ruling. With trial underway, the Defendant has filed a second motion to decertify the common issues class, which is the subject of the present proceedings. The Plaintiffs have moved to submit two additional questions to the jury that essentially would alter both the class definition and the nature of the questions certified for trial. The Plaintiffs also seek clarification of a ruling concerning the admissibility of evidence of polystable shifters. The Court believes that clarification will be helpful. On Dec. 9, 2019, the Court granted in part the Plaintiffs' motion for class certification and certified an issue class under Federal Rules of Civil Procedure 23(b)(3), (c)(4). The Plaintiffs then filed a motion to amend the class definition, which was granted on Jan. 10, 2020. The class as amended is defined as follows: All persons or entities who have purchased or leased a class vehicle, which means a 2012-2014 Dodge Charger, 2012-2014 Chrysler 300, or 2014-2015 Jeep Grand Cherokee equipped with the monostable shifter. After those and other orders were entered, class notice was provided by mail and email to 767,256 identified class members, with 5,502 identified members, who could not be reached for delivery by any means. The claims administrator received opt-out notices from 187 class members. The Court certified the class for decision of three questions of fact, stated as follows: * Whether the monostable gear shift has a design defect that renders the class vehicles unsuitable for the ordinary use of providing safe transportation; * Whether the Defendant knew about the defect and concealed its knowledge from buyers of the class vehicles; and * Whether information about the defect that was concealed would be material to a reasonable buyer. The Defendant previously filed a motion to decertify the class on the ground that proceeding with a common issues trial on the three certified questions would invade the trial rights of the Defendant in the four transferred cases, citing Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), and trying these issues separately from the entire causes of action for each of the respective states may impair the Defendant's rights under the Seventh Amendment. That motion was denied on Jan. 4, 2022, after the Court found that the Defendant's concerns could be addressed by confining the trial agenda to decision of the certified questions only as they pertain to the claims of plaintiffs and class members in the direct-filed actions. Taking a different path to a similar destination, the Defendant also recently filed a motion for suggestion of remand in the four transferred economic loss matters. That motion was denied on July 27, 2022. Trial of the common issues began on Sept. 6, 2022. Just 11 days prior, the Defendant filed a second motion to decertify the class. The bases of the motion are statements made by the Plaintiffs' lead counsel at the final pretrial conference, which the Defendant characterizes as exhibiting an intent to "abandon" the claims of class members, who bought vehicles after the April 22, 2016 voluntary recall was initiated. The Defendant argues that (1) the case as pleaded never has made a distinction based on date of purchase, and the Plaintiffs consistently have framed their claims on behalf of all purchasers, not just those who bought before the auto park recall, (2) the class as certified expressly covers all buyers and lessors of class vehicles, without regard to date, (3) class notice was provided to more than 760,000 class members consistent with that certification, (4) despite having previously moved to amend the class definition, the Plaintiffs never moved to add any date cutoff in the definition, and (5) immense effort has been expended by both the parties and the Court in preparing for a trial based on the class definition as propounded. The Defendant argues that the abandonment of claims by a significant number of class members demonstrates that counsel is inadequate to advocate for the interests of all class members, and that countenancing the eleventh-hour attempt to abridge the class definition would be extremely prejudicial and disruptive. For their part, the Plaintiffs continue to press the point of a cutoff date, reiterating that they initially sought certification of a 23(b)(3) claims class with a date cutoff of April 22, 2016, and that applicable authorities indicate that a 23(b)(3) class should include a time period. The Plaintiffs also insist the auto park feature is "basically irrelevant" to the claim of defect as it presently has been framed for trial. Judge Lawson notes that the party moving for decertification must advance at least some credible facts or authority suggesting that the Court erred in its evaluation of the propriety of class certification. The Defendant has not done so here, mainly because the Plaintiffs cannot change the class definition at this point in the case. By any stretch, the Plaintiffs' tardy attempt to redefine the scope of the class on the eve of trial is woefully untimely and procedurally improper, Judge Lawson holds. Class certification was granted in this case in December 2019, more than two years and eight months ago. The Plaintiffs previously moved to amend the class definition, but they never raised the issue of the date cutoff. Moreover, class notice has gone out to more than 760,000 absent class members without regard to the date of purchase of the class vehicles. Judge Lawson points out that the time for raising any purported issues with the class definition came and went long ago, and the Plaintiffs never presented any such concerns to the Court until the final pretrial conference. Any alteration of the class definition at this late date would be profoundly disruptive and prejudicial. As to the Defendant's argument, the grounds for certification of the class have not changed, and no motion to amend the class definition has been filed, Judge Lawson says. The Court previously denied a motion to decertify the class because the Defendant had not established that any of the grounds for certification materially had shifted. The second motion to decertify the class similarly must be denied. Class counsel is charged with trying the case that they made. Judge Lawson holds that the class definition is fixed. It has been in place for more than two years, the class has been notified, and trial has begun. Even if an amendment of the class definition formally was sought at this stage, it certainly would have to be denied. Judge Lawson adds that there is no reason to believe that class counsel cannot ably try the case, even if some of the arguments made suggest that, in hindsight, they may have chosen to reframe their claims somewhat differently than those that will be put before the jury. The Plaintiffs ask the Court to include "two questions" in the jury instructions and verdict form, which they frame as follows: * Question 1: Did the Class Vehicles have a design defect at the time they left FCA's possession that rendered the Class Vehicles unsuitable for the ordinary purpose of providing safe transportation? If yes, proceed to Question 2. * Question 2: Do Class Vehicles that contain AutoPark have a design defect that render the Class Vehicles unsuitable for the ordinary purpose of providing safe transportation? The Plaintiffs argue that the proposed questions conform with the Court's recent ruling on the omnibus motions in limine, in which the Court stated that the Plaintiffs may offer evidence on the efficacy of the auto park feature in eliminating safety risks other than the direct risk of rollaway accident when a driver exited a vehicle, as described in the S27 recall notice. They contend that these questions will ensure that the trial verdict is dispositive of "foundational issues" and will facilitate post-trial litigation of whether and to what extent various categories of recovery are possible or precluded. The Defendant opposes the motion, arguing that it is improper because the Defendant "was not allowed to brief" its version of the proposed instructions, and it believes the motion is untimely. It also contends that the request amounts to a backdoor attempt to amend the class definition. The Plaintiffs filed a reply. The Defendant's protest that it was not able "to brief" this question is curious; it could have stated its substantive position in response to this motion. Moreover, the trial is underway, and no jury instructions have been finalized. The Plaintiffs' request certainly is timely, Judge Lawson holds. However, Judge Lawson notes, there are several other reasons for denying the Plaintiffs' request. First, as the Defendant aptly notes, the motion essentially is a belated attempt to alter the class definition and partition the class into sub-classes of persons who bought or leased their vehicles before and after the auto park recall. As noted, the attempt to reconfigure the class on the eve of trial is woefully untimely and procedurally improper. Second, Judge Lawson holds the cases cited by the Plaintiffs do not quite stand for the proposition that they advance, which is that they have some legal entitlement to recover benefit-of-the-bargain damages even if it is determined that any safety defect in their vehicles fully was remedied by the recall. Third, Judge Lawson finds the question that the Plaintiffs want the Court to present to the jury is not the question that was certified for trial, which is "whether the monostable gear shift has a design defect that renders the class vehicles unsuitable for the ordinary use of providing safe transportation." If the Plaintiffs wanted to amend the statement of certified questions, then they should have moved to do so long ago, and it is far too late to do so now. The question presented to the jury at trial is the one that was certified, and the one memorialized in the class notice that was sent to more than 760,000 class members. Changing that now would undermine the legitimacy of the verdict, Judge Lawson points out. More significant, Judge Lawson says, there are profound due process concerns raised by any variance between the questions to be presented to the jury and those certified for trial, about which the class members were informed and given a chance to opt out. The Plaintiffs have settled on a theory of liability that the class vehicles sold with monostable shifters were defective when sold, and the post-recall auto park fix did not cure the defect. That is how they have been presenting their proofs at trial, Judge Lawson says. Posing questions to the jury, which seek to distinguish between pre- and post-recall vehicles, that is, those with and without the auto park feature, will not address this key liability issue in any helpful way, and it likely will inject confusion into an already complex case. Hence, the Plaintiffs' motion to submit their proposed questions to the jury will be denied. Finally, the Plaintiffs have filed a motion seeking clarification of part of the Court's ruling on the omnibus motions in limine addressing the introduction of evidence of polystable shifters as subsequent remedial measures. The Defendant had asked for a ruling to exclude evidence or argument "regarding FCA US's decision to use a polystable gear shifter in model years subsequent to the Class Vehicles." The Plaintiffs did not oppose that request, and the Court granted it on the record at the final pretrial conference. During trial, that issue has been revisited on several occasions, and the Court has made clear that references to the polystable shifter, which was used in vehicles manufactured after the Class Vehicle model years, may not be made to suggest that the shifters in the Class Vehicles were defective, but discussion of generic polystable shifters would be allowable to provide a basis for examining the Defendant's choice to incorporate the monostable shifter in Class Vehicles initially designed and subsequently manufactured and sold throughout the relevant period. The former purpose of the evidence would run afoul of Evidence Rule 407, which prohibits evidence of subsequent remedial measures to prove liability, but the latter purpose does not. Despite those rulings, Judge Lawson observes the issue continues to reemerge. It is appropriate, therefore, to clarify the rulings and the bases for them. Judge Lawson notes that the Plaintiffs have not indicated that they intend to offer evidence or argument about FCA's decision to use a polystable shifter in later model year vehicles, and they have not done so thus far. Perhaps that is why the Defendant did not take the opportunity to raise issues about the admissibility of the 2012 Lextant Study and Craig Rosenberg's opinion on Rule 407 grounds when it filed its omnibus motion in limine. There has been no evidence offered in this case that FCA manufactured vehicles after the Class Vehicles' model years with an electronic polystable shifter, Judge Lawson notes. The most that can be said of the various studies that have been received in evidence is that FCA was examining the manifold reported problems with the monostable shifter and perhaps was assessing whether a change should be made. And one of the contemplated options was a polystable shifter. The evidence about the Defendant's commissioning of the 2012 Lextant Study, so far as it has been discussed, is not evidence concerning the Defendant's "decision to use the polystable shifter," Judge Lawson says. Instead, the study, and Dr. Rosenberg's discussion about it, or other evaluations of cars using a polystable shifter design, have been and will be confined to illustrating the difference in function between a more "traditional" shifter with a polystable movement (typical of older nonelectronic patterns), which is relevant to the expectations of a reasonable consumer about how gear shifters work, regardless of the inner workings of the shifter mechanism. The Plaintiffs do not intend to argue that the decision to implement the polystable shifter is evidence that the monostable shifter was defective. And Dr. Rosenberg did not opine on that score. To foreclose any lurking concerns about the proper purpose for which the evidence may be used, the Court will give a limiting instruction to the jury. Judge Lawson holds that there is no basis to decertify the common issues class previously certified for trial. The Plaintiffs' proposed questions to be submitted to the jury will not help determine any liability issue embodied in the certified common issues. Clarification of the evidentiary ruling concerning evidence of polystable shifters is appropriate. Accordingly, Judge Lawson denies the Defendant's second motion to decertify the class. The Plaintiffs' motion to include two questions in jury instructions is denied. Judge Lawson also rules that the Plaintiffs' motion for clarification of the Court's previous ruling on the exclusion of evidence of a polystable shifter installation as a subsequent remedial measure is granted. The Plaintiffs may not introduce evidence that the Defendant installed polystable shifters in vehicles manufactured after the Class Vehicles' model years to prove that a subsequent remedial measure was taken to remedy a defect. However, the Plaintiffs may introduce evidence of the Defendant's evaluation of polystable shifters for the purposes discussed. A full-text copy of the Court's Opinion and Order dated Sept. 12, 2022, is available at https://tinyurl.com/ycky869c from Leagle.com. MOUNTAIN MAN FRUIT: Loadholt Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Mountain Man Fruit & Nut Co. The case is styled as Christopher Loadholt, on behalf of himself and all others similarly situated v. Mountain Man Fruit & Nut Co., Case No. 1:22-cv-08032 (S.D.N.Y., Sept. 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Mountain Man Fruit & Nut Co. -- https://mtnman.com/ -- are a Colorado local Business who sell trail mixes, Dried Fruits, Nuts and Seeds, Chocolate Confections, and Candies.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com NCL CORPORATION: Angelo Sues Over Mismanagement of 401(k) Plan -------------------------------------------------------------- GRACE ANGELO, on behalf of the NCLC 401(k) Plan, herself, and all others similarly situated, Plaintiff v. NCL CORPORATION LTD and NCL (BAHAMAS) LTD., Defendants, Case No. 1:22-cv-22962 (S.D. Fla., September 16, 2022) is a class action against the Defendants for breach of fiduciary duties of prudence under the Employee Retirement Income Security Act of 1974 and for failure to adequately monitor other fiduciaries and service providers. According to the complaint, the Defendants breached the fiduciary duties they owed to the NCLC 401(k) Plan by choosing poorly performing investments, inappropriate, high-cost mutual fund share classes, and caused the Plan to pay unreasonable and excessive fees for recordkeeping and other administrative services. As a result of the Defendants' mismanagement of the Plan, the Plaintiff and similarly situated Plan participants have suffered financial harm and continue to be harmed by the ongoing inclusion of these imprudent options and payment of excessive recordkeeping fees, says the suit. NCL Corporation Ltd. is a cruise company, headquartered in Miami, Florida. NCL (Bahamas) Ltd. is a cruise company, incorporated in Bermuda and headquartered in Miami, Florida. [BN] The Plaintiff is represented by: Brandon J. Hill, Esq. Luis A. Cabassa, Esq. Amanda E. Heystek, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Telephone: (813) 337-7992 Facsimile: (813) 229-8712 E-mail: bhill@wfclaw.com lcabassa@wfclaw.com aheystek@wfclaw.com NESTLE USA: Coleman Sues Over Coffee Creamer's "2X More" Label -------------------------------------------------------------- ROCKY COLEMAN, individually and on behalf of all others similarly situated, Plaintiff v. NESTLE USA, INC., Defendant, Case No. 8:22-cv-02161-SDM-TGW (M.D. Fla., September 16, 2022) is a class action against the Defendant for negligent misrepresentation, fraud, unjust enrichment, breach of express warranty, breach of implied warranty of merchantability/fitness for a particular purpose, breach of the Magnuson Moss Warranty Act, and violations of the Florida Deceptive and Unfair Trade Practices Act and State Consumer Fraud Acts. According to the complaint, the Defendant is engaged in false, deceptive, and misleading advertising, labeling, and marketing of its coffee creamer. The Defendant represented the product as containing "2X More" than other versions that are half its size and amount. The statement of "2X More Than Our 15 OZ Product" is false because 30 is not "two times more" than 15. The label does not state it contains "twice" or "double" the amount relative to the reference size, which would have been true. To provide consumers with "2X More," the product would need to contain 45 oz., which is 30 oz. more than 15 oz. 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, says the suit. Nestle USA, Inc. is a manufacturer of consumer products, with a principal place of business in Arlington, Virginia. [BN] The Plaintiff is represented by: Will Wright, Esq. THE WRIGHT LAW OFFICE, P.A. 515 N. Flagler Dr., Ste. P-300 West Palm Beach, FL 33401 Telephone: (561) 514-0904 E-mail: willwright@wrightlawoffice.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd., Ste. 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com NEW YORK CITY: Bid for Class Certification in Allen Suit Denied --------------------------------------------------------------- Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York denies the Plaintiffs' motion for class certification in the lawsuit captioned CLARENCE BOWEN ALLEN, et al., Plaintiffs v. CITY OF NEW YORK, et al., Defendants, Case No. 19-CV-03786 (JMF) (S.D.N.Y.). In this putative class action, Plaintiffs Annette Birdsong and Herbert Richardson, former employees of Jacobi Medical Center, bring employment discrimination claims against the City of New York and the New York City Health and Hospitals Corporation ("NYC H+H"). In particular, the Plaintiffs allege that, as part of a 2017 reorganization of Jacobi Medical Center, the Defendants discriminated against employees, who were over 40 years of age and non-white. They now move, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for class certification with respect to most, but not all, of their claims. The Plaintiffs rely on Rule 23(b)(3), which requires them to show that (1) "questions of law or fact common to class members predominate over any questions affecting only individual members," and (2) "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Judge Furman finds that the Plaintiffs fail to sustain their burdens under either Rule 23(a) or (b), substantially for the reasons set forth in the Defendants' memorandum of law. In brief, the Plaintiffs' motion is premised on the theory that the Defendants discriminated against employees, who were over forty years of age and non-white, as part of a "Managerial Efficiency Improvement Initiative" or "MEII" in 2017. As the Defendants note, however, the record reveals that there "was no singular MEII," but rather two different MEIIs, one in February 2017 and one in June 2017. Moreover, the two MEIIs differed in significant respects. For example, while the June MEII had a standardized organizational chart and specific employee reduction target, the February MEII had neither. Additionally, different people drafted the two MEIIs at NYC H+H, and different people were involved in implementing them at Jacobi Medical Center. And ultimately, in the case of each MEII, the relevant decisions were based largely on the views of the leaders of each department, who were entrusted with broad discretion to identify positions suitable for elimination. In light of these facts, Judge Furman holds that the Plaintiffs cannot demonstrate commonality or typicality, as is required by Rule 23(a). Put simply, given the two different MEIIs and the degree to which each employment decision was based on individual department leaders' discretion, the Plaintiffs do not, and cannot, show that there is some glue holding the alleged reasons for all the challenged employment decisions together that will produce a common answer to the crucial question why was the employee disfavored. For similar reasons, Judge Furman holds the Plaintiffs fail to show that their claims are typical of those of the class--that is, that "each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability," citing Buffington v. Progressive Advanced Ins. Co., No. 20-CV-7408 (PMH), 2022 WL 3598310, at *4 (S.D.N.Y. Aug. 23, 2022). Among other things, Richardson and Birdsong held only two of the many positions that were eligible for inclusion in the MEIIs, were hired when they were over forty years old, and worked under only one of the department leaders responsible for selecting positions for inclusion in the MEIIs. In any event, even if the Plaintiffs could satisfy the requirements of Rule 23(a), their motion would be doomed by Rule 23(b)(3)'s predominance inquiry, which is "far more demanding" than the commonality inquiry and tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation, Judge Furman opines. Here, there are a litany of individualized issues that would subsume any common issues at trial, including why (and by whom) each position was selected for inclusion in the relevant MEII, whether each of those determinations was tainted with bias, whether the Defendants had legitimate, non-discriminatory reasons for each of them, and damages. In short, Judge Furman holds, the Plaintiffs' motion for class certification must be and is denied. The parties will promptly meet and confer about both settlement and motion practice and, no later than two weeks from the date of this Memorandum Opinion and Order, submit a joint letter addressing: (1) whether the parties are still amenable to mediation before summary judgment motion practice; (2) if so, whether they would prefer mediation before the assigned Magistrate Judge or through the Court-annexed mediation program; and (3) a proposed structure and schedule (allowing for any time to pursue settlement, if applicable) for the briefing of any motions for summary judgment or to preclude expert testimony. If both sides still intend to file motions for summary judgment, Judge Furman directs the parties to propose a briefing schedule that minimizes the number and page lengths of briefs--that is, where one side files an initial motion; the other side files a cross-motion, supported by a single, consolidated memorandum of law in support of the cross motion and in opposition to the initial motion; the initial moving party files a single, consolidated memorandum of law in reply and in opposition to the cross-motion; and the cross-moving party files a reply. The Clerk of Court is directed to terminate ECF No. 70. A full-text copy of the Court's Memorandum Opinion and Order dated Sept. 12, 2022, is available at https://tinyurl.com/yc4auphj from Leagle.com. NFL ENTERPRISES: Rhode Island Court Narrows Claims in Louth Suit ---------------------------------------------------------------- Judge Mary S. McElroy of the U.S. District Court for the District of Rhode Island grants in part and denies in part the Defendant's motion to dismiss the lawsuit titled DANIEL LOUTH, individually and on behalf of all others similarly situated, Plaintiff v. NFL ENTERPRISES LLC., Defendant, Case No. 1:21-cv-00405-MSM-PAS (D.R.I.). The lawsuit is a putative class action arising under the Video Privacy Protection Act ("VPPA"), 18 U.S.C. Section 2710, and Rhode Island's Video Rental Privacy Act ("RIVRPA"), R.I.G.L. Section 11-18-32. The VPPA prohibits video service providers from knowingly disclosing the "personally identifiable information" of its consumers to any person, with limited exceptions. Similarly, the RIVRPA prohibits anyone from revealing, transmitting, publishing, or disseminating in any manner, any records which would identify the names and addresses of individuals, with the titles or nature of video films, records, cassettes, or the like, which they purchased, leased, rented, or borrowed. As alleged in the Plaintiff's First Amended Complaint, NFL Enterprises LLC owns and operates a mobile application ("NFL App") which disseminates "live local and primetime games, exciting videos and highlights, and replays of every game." Consumers can download the NFL App through the Google Play Store on Android devices or the Apple App Store on iOS devices. Once downloaded, the NFL App requests permission from the user to access their location through the mobile device's GPS. At no point does NFL Enterprises receive permission from users to share their location information, personally identifiable information, or video viewing information with third parties. The Plaintiff's counsel retained a private research company to conduct a dynamic analysis of the NFL App. The researchers' analysis revealed that NFL Enterprises transmits information sufficient to identify class members and the videos they watch to an unrelated third party. Further, the analysis established that the Defendant incorporates multiple "application programming interfaces" ("APIs") into the NFL App. APIs enable companies to open up their applications' data and functionality to external third-party developers, business partners, and internal departments within their companies. NFL Enterprises integrates the Anvato API, which is owned by Google, into the NFL App. When a user enables location services, NFL Enterprises transmits to Google, through the Anvato API, a user's geolocation, a user's advertising ID, and a unique video identifier of the video(s) the user viewed. The purpose of these disclosures, the Plaintiff alleges upon description and analysis of the Anvato platform, is for NFL Enterprises to maximize its advertising revenue. The Plaintiff, Daniel Louth, used the NFL App from 2018 to 2021 in Rhode Island. He never consented, agreed, or otherwise permitted the Defendant to disclose his geolocation, advertising ID, and watch history to third parties. He alleges, on behalf of himself and a putative class, that in violation of the VPPA and RIVRPA, NFL Enterprises, without consent, knowingly and intentionally discloses its users' personally identifiable information--including a record of every video viewed by the user--to unrelated third parties. A. The Video Privacy Protection Act To state a claim under the VPPA, the Plaintiff must establish that NFL Enterprises acted as a video tape service provider that knowingly disclosed personally identifiable information to a third party in a manner that falls outside of one of the VPPA's express statutory exceptions. The VPPA covers the disclosure of personally identifiable information ("PII"), defined in the statute to include information, which identifies a person as having requested or obtained specific video materials or services from a video tape service provider. The initial question is whether the Plaintiff's allegations support a claim that NFL Enterprises disclosed PII and the specific videos that he obtained. What is required at this stage is whether the Plaintiff has alleged sufficient facts that the Defendant's disclosure of data to a third-party (here, Google), reasonably and foreseeably can identify consumers and which videos they watched. The Plaintiff alleges that NFL Enterprises discloses to Google via the Anvato API a user's PII through geolocation, a user's unique advertising ID ("AAID"), and the unique video identifier of the videos viewed by the user. As to a consumer's geolocation, NFL Enterprises collects and transmits to Google this data at the time the consumer views videos. The NFL App discloses a user's geolocation "with more than three decimal places of accuracy (i.e., within less than forty feet of the user)." Secondly, the Plaintiff makes allegations concerning NFL Enterprises' disclosure of AAID to Google. An AAID is a unique string of numbers that attaches to a device (such as a mobile phone). An AAID is sent to advertisers and other third parties so they can track user activity across multiple applications. The data collected can allow companies to create inferences about the user's identity. Judge McElroy states that while AAID are "resettable" by users, the Plaintiff plausibly alleges that AAID is a persistent identifier because virtually no one knows about AAIDs and, correspondingly, virtually no one resets their AAID. Judge McElroy finds that the Plaintiff sufficiently alleges that AAID is PII because it is "unique both to a specific device and user" and allows Google "to identify and track specific users across multiple electronic devices, applications, and services that a consumer may use." The Plaintiff further buttresses his assertion that geolocation and AAID are PII with the argument that the combination of the two allows Google to identify specific users each time they watch a video because NFL Enterprises transmits both data groups allowing Google to "create synergetic inferences about user activity." In addition, the Plaintiff alleges that when NFL Enterprises transmits a user's geolocation and AAID, it also transmits a user's video ID, which identifies the video that is being watched. This "MCP ID" is a "short string of numbers that links to a particular video name." Anvato's platform confirms that it matches the MCP ID to the video title and content. Thus, Google (via Anvato) can identify which users watch which videos using an MCP ID. Assuming the truth of these alleged facts, Judge McElroy holds that the disclosure of precise geolocation data, AAID, and video MCP IDs constitutes PII because it is reasonably and foreseeably likely to reveal which NFL videos the Plaintiff has obtained. The VPPA prohibits only "knowing" disclosures of PII, Judge McElroy notes. NFL Enterprises argues that while the Plaintiff alleges facts regarding the analytics and ad targeting services that Google's Anvato offers--which would require the PII disclosure--it does not set forth facts from which the Court could reasonably infer that NFL Enterprises actually used such services. But the Amended Complaint sets forth that Google markets Anvato as providing "100% workflow automation" with nine distinct services in one product, including "monetization" and "analytics" for mobile applications. Specifically, the Anvato platform offers "a fully managed, end-to-end video processing and management platform for signal acquisition, live and video-on-demand editing, hybrid encoding, social and premium syndication, dynamic ad insertion, authenticated playback, video analytics and player SDKs across all connected devices." Dynamic ad insertion and video analytics rely upon a user's geolocation and AAID. As alleged, the Avanto dashboard transparently shows what information Google is collecting, analyzing, and aggregating. This includes what users are watching and where they are watching. By using these dashboards, the Plaintiff asserts, NFL Enterprises knows that it is disclosing a user's geolocation, AAID, and watch history to Google. Given the facts alleged, Judge McElroy holds that it can reasonably be inferred that NFL Enterprises knowingly transmits PII for the purpose of targeted advertising. Furthermore, it cannot be said that upon discovery such a linkage is too dependent on too much yet-to-be done, or unforeseeable detective work. The VPPA provides that a video tape service provider's knowing disclosure of PII is permitted if incident to the ordinary course of business. The statute defines the "ordinary course of business" as "only debt collection activities, order fulfillment, request processing, and the transfer of ownership." Viewing the alleged facts in the light most favorable to the Plaintiff, as the Court must upon a motion to dismiss, NFL Enterprises discloses PII to Google to measure analytics and increase advertising revenue. Such purposes do not fall into the narrow categories statutorily defined as the "ordinary course of business," Judge McElroy points out. Judge McElroy explains that it may be determined upon discovery that NFL Enterprises uses Anvato only for "end-to-end video processing and management" functions, but, at this early pleading stage, the Plaintiff sets forth a plausible case that it uses those services in violation of the VPPA. The Plaintiff's claim is premised upon the disclosure of PII when watching live game content and video clips, the latter including prerecorded game highlights and other videos. NFL Enterprises argues that, under the plain language of the VPPA, it cannot be a "video tape service provider" with respect to "live" game content. The Plaintiff asserts that live content should be included as a similar audio visual material but the Court finds this interpretation goes too far. The adjective "prerecorded" modifies both "video cassette tapes" and "similar audio visual materials." As such, Judge McElroy holds that NFL Enterprises' Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) the Plaintiff's VPPA claims is granted to the extent they rely upon the consumption of live content but denied as to pre-recorded content. B. The Rhode Island Video Protection Act The Plaintiff also brings a claim under the Rhode Island Video Protection Act, R.I.G.L. Section 11-18-32 ("RIVPRA"). Unlike the VPPA, under which "PII is not limited to information that explicitly names a person" and sets forth a minimum, but not exclusive, definition of PII, the RIVPRA specifically prohibits disclosure of "names and addresses." Here, the Plaintiff does not allege that NFL Enterprises specifically disclosed his name and address and, therefore, his RIVPRA claims are dismissed, Judge McElroy rules. For these reasons, NFL Enterprises' Motion to Dismiss is granted on the Plaintiff's RIVPRA claim in its entirety (Count II) and any aspect of the VPPA claim (Count I) that is premised upon the consumption of live content. The Motion is denied as to the Plaintiff's VPPA claim concerning pre-recorded content. A full-text copy of the Court's Memorandum and Order dated Sept. 12, 2022, is available at https://tinyurl.com/yyznu3r4 from Leagle.com. NIO INC: Faces Bohonok Suit Over Share Price Drop ------------------------------------------------- TARAS CEGLIA BOHONOK, individually and on behalf of all others similarly situated, Plaintiff v. NIO INC., BIN LI, and WEI FENG, Defendants, Case No. 1:22-cv-07666 (S.D.N.Y., Sept. 8, 2022) is a class action on behalf of the Plaintiff and all persons and entities that purchased or otherwise acquired NIO securities between August 20, 2020 and July 11, 2022, inclusive, pursuing claims against the Defendants under the Securities Exchange Act of 1934. NIO designs, develops, manufactures, and sells smart electric vehicles. It purports to differentiate itself through technological breakthroughs and innovations, such as its battery swapping technologies (i.e., Battery as a Service) and proprietary autonomous driving technologies, including Autonomous Driving as a Service. On June 28, 2022, Grizzly Research published a report alleging, among other things, that NIO inflated its net income by about 95% through sales to a related party, Wuhan Weineng Battery Asset Co. Then, on July 11, 2022, NIO announced that it formed a special committee to oversee an investigation into the allegations in the Grizzly Research report. On this news, the Company's shares fell $2.03, or 8.9% to close at $20.57 per share on July 11, 2022, on unusually heavy trading volume. The complaint asserts that throughout the Class Period, Defendants allegedly made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that NIO pulled forward revenue by selling batteries to a related party, which owned the batteries and managed users' subscriptions; (2) that, through the related party, NIO also recognized enormous depreciation savings; (3) that, as a result of the foregoing, the Company's revenue and net loss were overstated; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis, 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 added.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Thomas Przybylowski, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com tprzybylowski@pomlaw.com NN INC: Hearing of $9.5M Deal in Securities Suit Set on Dec. 1 -------------------------------------------------------------- The following statement is being issued by SCOTT+SCOTT ATTORNEYS AT LAW LLP regarding the NN, Inc. Securities Litigation Settlement. YOU ARE HEREBY NOTIFIED that a hearing will be held on December 1, 2022, at 2:00 p.m., before the Honorable Andrew Borrok, J.S.C., Supreme Court of New York, County of New York: Commercial Division, 60 Centre Street, New York, NY 10007, to determine whether: (1) the proposed settlement of the above-captioned action (the "Litigation"), as set forth in the Stipulation of Settlement ("Stipulation" or "Settlement"), for $9,500,000 in cash should be approved by the Court as fair, reasonable, and adequate;2 (2) the Judgment, as provided under the Stipulation, should be entered; (3) to award Plaintiff's Counsel attorneys' fees and expenses out of the Settlement Fund (as defined in the Notice of Proposed Settlement of Class Action ("Notice"), as discussed below), and, if so, in what amount; (4) to award Plaintiff for representing the Settlement Class out of the Settlement Fund and, if so, in what amount; and (5) the Plan of Allocation should be approved by the Court as fair, reasonable, and adequate. Any changes to the hearing date or time will be published on www.NNIncSecuritiesLitigation.com. The Litigation is a consolidated securities class action brought on behalf of all persons and entities who purchased or otherwise acquired NN, Inc.'s common stock in the Company's September 14, 2018 Secondary Public Offering ("SPO")1, against NN, certain of its officers and directors, and underwriters for the SPO (collectively, "Defendants") for, among other things, allegedly misstating and omitting material facts from the Registration Statement and Prospectus filed with the U.S. Securities and Exchange Commission in connection with the SPO. Plaintiff alleges that these purportedly false and misleading statements inflated the price of the Company's stock, resulting in damage to Settlement Class Members when the truth was revealed. Defendants deny all of Plaintiff's allegations. IF YOU PURCHASED OR ACQUIRED NN COMMON STOCK IN THE SEPTEMBER 14, 2018 SECONDARY PUBLIC OFFERING YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THE LITIGATION. To share in the distribution of the Settlement Fund, you must establish your rights by submitting a Proof of Claim and Release form ("Proof of Claim") by mail (postmarked no later than December 15, 2022) or electronically (no later than December 15, 2022). Your failure to submit your Proof of Claim by December 15, 2022, will subject your claim to rejection and preclude your receiving any of the recovery in connection with the Settlement of the Litigation. If you are a member of the Settlement Class and do not request exclusion therefrom, you will be bound by the Settlement and any judgment and release entered in the Litigation, including, but not limited to, the Judgment, whether or not you submit a Proof of Claim. If you have not received a copy of the Notice, which more completely describes the Settlement and your rights thereunder (including your right to object to the Settlement), and a Proof of Claim, you may obtain these documents, as well as a copy of the Stipulation and other settlement documents, online at www.NNIncSecuritiesLitigation.com, or by writing to: NN, Inc. Securities Litigation Settlement Claims Administrator c/o Kroll Settlement Administration P.O. Box 225391 New York, NY 10150-5391 Inquiries should NOT be directed to the Defendants, Court, or Clerk of the Court. Inquiries, other than requests for the Notice or a Proof of Claim, may be made to Plaintiff's Counsel: SCOTT+SCOTT ATTORNEYS AT LAW LLP Jeffrey P. Jacobson The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: 800-404-7770 IF YOU DESIRE TO BE EXCLUDED FROM THE SETTLEMENT CLASS, YOU MUST SUBMIT A REQUEST FOR EXCLUSION SUCH THAT IT IS POSTMARKED BY NOVEMBER 15, 2022, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. ALL MEMBERS OF THE SETTLEMENT CLASS WHO HAVE NOT REQUESTED EXCLUSION FROM THE SETTLEMENT CLASS WILL BE BOUND BY THE SETTLEMENT EVEN IF THEY DO NOT SUBMIT A TIMELY PROOF OF CLAIM. IF YOU ARE A SETTLEMENT CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT TO THE SETTLEMENT, PLAN OF ALLOCATION, REQUEST BY PLAINTIFF'S COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES, AND/OR AWARD TO PLAINTIFF FOR REPRESENTING THE SETTLEMENT CLASS. ANY OBJECTIONS MUST BE FILED WITH THE COURT AND SENT TO PLAINTIFF'S COUNSEL AND DEFENDANTS' COUNSEL BY NOVEMBER 15, 2022, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. DATED: SEPTEMBER 1, 2022. BY ORDER OF THE SUPREME COURT OF NEW YORK, COUNTY OF NEW YORK: COMMERCIAL DIVISION THE HONORABLE ANDREW BORROK, J.S.C. 1 For purposes of the Settlement only, the "Settlement Class" includes all persons and entities who purchased or otherwise acquired NN's common stock in the Company's September 14, 2018 Secondary Public Offering, unless excluded by the terms of the Stipulation. 2 Unless otherwise defined herein, all capitalized terms shall maintain the same meaning as those set forth in the Stipulation, which can be viewed and/or obtained at www.NNIncSecuritiesLitigation.com. [GN] PAYPAL INC: Kass Appeals Denial of Bid to File Second Amended Suit ------------------------------------------------------------------ Plaintiff Terry Kass filed an appeal from a court ruling entered in the lawsuit entitled FRIENDS FOR HEALTH SUPPORTING THE NORTH SHORE HEALTH CENTER, et al., Plaintiffs v. PAYPAL, INC. and PAYPAL CHARITABLE GIVING FUND, Defendants, Case No. 1:17-cv-01542, in the U.S. District Court for the Northern District of Illinois, Eastern Division. Terry Kass and charities Friends for Health: Supporting the North Shore Health Center, DC Central Kitchen, and Kol Hadash Humanistic Congregation (together, "Charity Plaintiffs") filed the putative class action lawsuit against Defendants PayPal, Inc. and PayPal Charitable Giving Fund, alleging that the Defendants engaged in misconduct related to soliciting and distributing charitable donations. The Defendants moved to compel individual arbitration under the Federal Arbitration Act ("FAA"), and the prior judge assigned to the case granted the motion and stayed the case. Kass and the Defendants have undergone arbitration and they have now filed cross-motions to confirm or vacate the arbitrator's award. Those cross-motions remain pending. Meanwhile, Kass, proceeding pro se, and the Charity Plaintiffs moved for leave to file a second amended complaint. They seek to add new parties and claims that they argue are not subject to arbitration. The Charity Plaintiffs contend that, despite the stay, they should be allowed to amend their claims because they are not presently engaged in arbitration and their proposed amended complaint brings new claims that the Charity Plaintiffs assert are not subject to arbitration. As previously reported in the Class Action Reporter, Judge Marth M. Pacold of the Northern District of Illinois denied the Plaintiffs' motions for leave to file a second amended complaint. Judge Pacold opined that the Charity Plaintiffs cite only MacRury v. American Steamship Co., No. 16-cv-13889, 2017 WL 4803704 (E.D. Mich. Oct. 26, 2017), in support of their motions. MacRury, however, is inapposite, he said. Unlike Charity Plaintiffs, the plaintiff in MacRury actually moved to lift the stay. Further, although the court in MacRury lifted the stay to allow the plaintiff to amend his complaint to assert new claims not subject to arbitration, the court did not explain why it was appropriate to do so particularly in light of the FAA's seemingly mandatory command that the court "shall stay the trial of the action until such arbitration has been had." Thus, even if MacRury was applicable, Judge Pacold found it unpersuasive. Kass makes no argument about whether it is, or is not, appropriate to allow amendment in light of the stay. Moreover, Judge Pacold denied the motions to amend because the case is presently stayed under 9 U.S.C. Section 3, which mandates that the stay remain in place until arbitration has been completed. Even if the FAA provides courts discretion over whether to keep the stay in place, the parties have not presented the court with any compelling reason to lift the stay and allow amendment at this time. Neither the Charity Plaintiffs nor Kass has identified any change in circumstances that requires their proposed amendment to be granted now. Furthermore, "leaving the stay intact until the completion of arbitration serves the interests of judicial economy and advances Congress's purpose in enacting the FAA: 'To ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings,'" ruled the Court. The appellate case is captioned as Terry Kass v. PayPal Inc., et al., Case No. 22-2575, in the U.S. Court of Appeals for the Seventh Circuit, filed on Sept. 7, 2022. The briefing schedule in the Appellate Case states that: -- Docketing Statement was due for Appellant Terry Kass last Sept. 9, 2022; -- Transcript information sheet was due Sept. 21, 2022; and -- Fee or IFP forms was due on Sept. 21, 2022 for Appellant Terry Kass.[BN] Plaintiff-Appellant TERRY KASS, individually and on behalf of all others similarly situated, also known as TERRY HORWITZ KASS, appears pro se. Defendants-Appellees PAYPAL INC., a Delaware corporation; and PAYPAL CHARITABLE GIVING FUND, a Delaware nonprofit corporation, are represented by: Francis H. LoCoco, Esq. HUSCH BLACKWELL LLP 511 N. Broadway Milwaukee, WI 53202-3819 Telephone: (414) 273-2100 RED PAYMENTS: E.D. New York Grants Bid to Dismiss Roller FCRA Suit ------------------------------------------------------------------ Judge Gary R. Brown of the U.S. District Court for the Eastern District of New York grants the Defendant's motion to dismiss the lawsuit entitled BRIAN ROLLER and KALOS STREET, L.L.C., Plaintiffs v. RED PAYMENTS L.L.C., Defendant, Case No. CV 19-5285 (GRB) (VMS) (E.D.N.Y.). Plaintiffs Brian Roller and Kalos Street L.L.C. brought this putative class action against Defendant Red Payments L.L.C. and First Data Global Leasing seeking declaratory relief under the Declaratory Judgment Act and alleging claims pursuant to the Fair Credit Reporting Act ("FCRA") and Electronic Funds Transfer Act ("EFTA"), as well as common law claims for unjust enrichment, conversion and fraud. First Data Global Leasing, formerly a defendant to this action, has been dismissed per stipulation of the parties. By Order dated Feb. 11, 2021, the Court dismissed certain of the Plaintiffs' claims. The Plaintiffs subsequently filed a Second Amended Complaint seeking declaratory and injunctive relief and alleging claims pursuant to the FCRA, as well as claims for common law fraud. Presently before the Court is the Defendant's motion to dismiss the Second Amended Complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure. The action concerns payment processing accounts that Red Payments opened in the name of Kalos Street, which is wholly owned by Roller. The Plaintiffs contracted with Red Payments in order to obtain point-of-sale ("POS") equipment for processing credit or debit card payments, as well as for payment processing and related services connected to the use of this POS equipment. While Red Payments enrolls businesses in these types of contracts, it merely acts as an intermediary; the actual equipment and services are provided by third parties, such as former defendant First Data Global Leasing ("First Data"). On Aug. 22, 2016, Roller executed an "Application & Agreement" on behalf of Kalos Street with Red Payments to lease a "USB Card Swiper" and "Gateway Virtual Terminal" and obtain associated payment processing services (the "USB Swiper Agreement"). Pursuant to this agreement, Roller opened an account at PNC Bank in his name to facilitate autopayments for the services under the contract, which the Plaintiffs had begun using by the end of August 2016. Within one week, however, the Plaintiffs received an additional package that contained multiple mobile card readers called "VX520s." The Plaintiffs did not request this additional equipment, nor was it mentioned in the USB Swiper Agreement. Nevertheless, Red Payments enrolled the Plaintiffs in a separate lease account for this equipment, which, like their first account, came with associated rental fees. The Red Payments' sales representative, who arranged the USB Swiper Agreement informed Roller that this practice -- viz. opening new accounts (with associated payment obligations) on top of a customer's existing account, without that customer's knowledge or consent -- was a scheme known in the industry as "slamming." The payment processing services market is complex, wherein any given payment processing transaction may involve half a dozen intermediaries or more. As a result, it is a relatively simple matter for the Defendant to "slam" customers with unauthorized accounts and fees, which the unwary clients pay due to their ignorance of the payment processing system. Suspicious of the unrequested equipment, the Plaintiffs reached out to Red Payments and First Data to request the application and related paperwork that should have accompanied the new account, to no avail. Despite multiple attempts to resolve this issue with both Red Payments and First Data, the Plaintiffs were unable to obtain either a copy of a contract for the additional account, or a cancelation or refund for the mobile card readers and related payment processing charges. The Defendants nevertheless continued to charge the Plaintiffs for the account. The Plaintiffs refused to pay these charges and ultimately closed their bank account at PNC Bank in February 2017. Sometime during this process, Red Payments assessed a $499.00 cancelation fee on their accounts and referred the uncollected invoices to debt collectors. As a result, the Plaintiffs aver they have received notices from collection agencies seeking to collect the unpaid fees and may have had their credit scores harmed because of these collection efforts. On May 1, 2018, the Plaintiffs, filing as "Brian Roller, d/b/a Kalos Street L.L.C.," commenced this class action against Defendants First Data and Red Payments in the United States District Court for the Eastern District of Pennsylvania. In July 2018, pursuant to an order of Judge Mitchell S. Goldberg in the Eastern District of Pennsylvania, Red Payments produced a copy of the contract establishing the VX520 mobile card reader account (the "VX520 Agreement"). According to the Plaintiffs, however, this document was inauthentic: the VX520 Agreement was both "unsigned [and] unacknowledged" and "an obvious forgery." In September 2018, First Data moved to transfer the case to this Court pursuant to 28 U.S.C. Section 1404(a), which was granted by Judge Goldberg on Aug. 12, 2019. Following the transfer, Plaintiffs Roller and Kalos Street filed a First Amended Complaint against Defendants First Data and Red Payments, asserting substantially the same claims as set forth in the original complaint, but now including new allegations concerning the purportedly fictitious VX520 Agreement. The case was reassigned from Judge Margo K. Brodie to Judge Brown on Jan. 29, 2020. On May 19, 2020, Defendant First Data was dismissed from the case. Defendant Red Payments moved to dismiss the First Amended Complaint pursuant to Rule 12, and on Feb. 11, 2021, the Court granted in part and denied in part the motion. The Plaintiffs filed a Second Amended Complaint on March 17, 2021, asserting claims under the FCRA and state law and seeking declaratory and injunctive relief. At a pre-motion conference held before Judge Brown on May 4, 2021, the Court stayed the Defendant's application for leave to file a motion to dismiss the Second Amended Complaint pursuant to Rule 12 pending resolution of the issue of whether or not First Data and/or Red Payments had obtained a credit report for the Plaintiffs for the allegedly fraudulent account. The Court, thereafter, dismissed the Plaintiffs' FCRA claim with prejudice for failure to obtain records of the credit inquiries at issue. On Dec. 2, 2021, the Court granted the parties' proposed briefing schedule for the Defendant's motion to dismiss the remaining claims for common law fraud and declaratory and injunctive relief. On Feb. 21, 2022, Defendant Red Payments filed the instant motion to dismiss the Second Amended Complaint (hereinafter the "complaint") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Plaintiffs assert claims of common law fraud based on both affirmative misrepresentations and omissions. In addition, the Plaintiffs seek declaratory and injunctive relief. The Plaintiffs assert that Red Payments made the following material misrepresentations: (i) the fictitious VX520 Application that misled others, including First Data into relying upon it; (ii) sending the box of unwanted equipment with the intent of misleading others, including First Data, into relying upon it; and (iii) sending written statements reflecting bills for the second account, including termination charges, with the intent of misleading others. Judge Brown finds that none of these representations state an actionable fraud claim. Judge Brown also finds that the Plaintiffs have failed to allege justifiable reliance on the receipt of unwanted equipment. Inasmuch as the Plaintiffs were aware of the falsity of the representation and took no action in reliance upon the receipt of the unwanted equipment, Judge Brown holds that the Plaintiffs cannot assert that their reliance on the misrepresentation was reasonable. Nor can the Plaintiffs maintain a claim for common law fraud based on others' reliance, including First Data. Finally, Judge Brown finds that the Plaintiffs have failed to plead justifiable reliance upon the receipt of invoices for the second account. In sum, because each of the alleged misrepresentations is not coupled with any subsequent reasonable reliance undertaken by the Plaintiffs, no claim of fraud arises. Accordingly, the Plaintiff's common law fraud claims against Red Payment cannot survive the Defendant's motion to dismiss. The Plaintiffs' fraud claims also fail on the injury prong, viz. damages proximately caused by reliance on the alleged false statements, Judge Brown holds. The Plaintiffs allege the following injuries arising out of Red Payments' purported fraud: (i) fees incurred for the second VX520 account and a $499.99 termination fee on the accounts; (ii) issuance of a negative credit report against them; (iii) receipt of notices from collection agencies seeking unpaid fees allegedly owed; and (iv) harm to their credit scores. Judge Brown holds that the Plaintiffs have failed to plead cognizable injury. Judge Brown opines that the Plaintiffs do not allege that they were injured from any amounts paid to the Defendant. To the contrary, the Plaintiffs state that they "refused to pay the invoices received for the unwanted account and rental of the unwanted equipment and switched to a new payment processor." In addition, Judge Brown notes, there is no indication of a negative credit report generated against the Plaintiffs based on the allegations of this case. Further, the Plaintiffs have not plead cognizable damages arising from the alleged receipt of notices from collection agencies seeking unpaid fees. Finally, the Plaintiffs' "belief" that their credit scores have been "harmed as a result of Red Payments' efforts to collect on unpaid fees," without further factual support falls well short of both Rule 9(b) and Rule 12 standards, Judge Brown opines. Inasmuch as the Plaintiffs have not pled any legally cognizable damages proximately caused by reliance on the alleged false statements, the Plaintiffs' fraud claims fail on this additional ground. Accordingly, the Defendant's motion to dismiss the Plaintiffs' common law fraud claims is granted. The Plaintiffs seek both declaratory and permanent injunctive relief. Specifically, the Plaintiffs seek declarations that (1) the unauthorized phony application (Ex. B) is not a binding contract, and (2) the Plaintiffs and the Class are, therefore, not bound by any of the terms set forth in the document. The Plaintiffs also seek a permanent injunction "enjoining Red Payments from performing further unfair and unlawful acts as alleged" in the Second Amended Complaint. Because the Plaintiffs' underlying substantive claims are dismissed for failure to state a claim, Judge Brown holds that the Plaintiffs are not entitled to independent declaratory relief. Accordingly, the Defendant's motion to dismiss the Plaintiffs' remaining declaratory judgment cause of action is granted. In light of the dismissal of the Plaintiffs' underlying substantive claims for failure to state a claim, Judge Brown holds that the Plaintiffs are not entitled to independent injunctive relief. Accordingly, the Defendant's motion to dismiss the Plaintiffs' remaining cause of action for injunctive relief is granted. Based on the foregoing, the Court grants the Defendant's motion in its entirety and dismisses the Second Amended Complaint. The Clerk of the Court is directed to enter judgment and close the case. A full-text copy of the Court's Memorandum & Order dated Sept. 12, 2022, is available at https://tinyurl.com/7dkh24dv from Leagle.com. SAN DIEGO GAS: Wins Bid to Compel Arbitration in Radcliff Suit -------------------------------------------------------------- Senior District Judge Marilyn L. Huff of the U.S. District Court for the Southern District of California grants the Defendants' motion to compel arbitration and motion to strike in the lawsuit entitled DAVID RADCLIFF, individually and on behalf of others similarly situated and aggrieved, Plaintiff v. SAN DIEGO GAS & ELECTRIC COMPANY, a California corporation; SEMPRA ENERGY, a California corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 20-cv-1555-H-MSB (S.D. Cal.). On Feb. 27, 2020, Radcliff filed a proposed class action complaint against Defendants San Diego Gas & Electric Company and Sempra Energy alleging various wage-and-hour violations. On Sept. 25, 2020, the Defendants moved to compel arbitration of the Plaintiff's wage-and-hour claims. The Court granted this motion (Doc. No. 20, the "2020 Order.") As a result, the only claims still before the Court are the Plaintiff's claims for penalties under the California Private Attorneys General Act ("PAGA"). On Jan. 13, 2022, the parties jointly moved to stay the Court's consideration of the PAGA claims pending a forthcoming decision by the United States Supreme Court in Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022). The Court granted the parties' motion for a stay. The Supreme Court issued its decision in Moriana on June 15, 2022. On Aug. 16, 2022, the Defendants moved to compel arbitration of the Plaintiff's individual PAGA claim and to strike the Plaintiff's representative PAGA claim. The Court held a case status hearing on Aug. 22, 2022. The Plaintiff subsequently filed his opposition to the motion on Aug. 30, 2022. The Defendants filed their reply in support of their motion on Sept. 7, 2022. The Court held a hearing on the motion on Sept. 12, 2022. Sara B. Tosdal appeared for the Plaintiff, and Richard Azada appeared for the Defendants. Motion to Compel Arbitration In the 2020 Order, the Court compelled the Plaintiff to submit his wage-and-hour claims to arbitration. The Plaintiff acknowledges that his PAGA claims are predicated on these same wage-and-hour claims. However, the Plaintiff insists that his PAGA claims are not subject to arbitration because these predicate claims were not subject to arbitration in the first instance. In essence, the Plaintiff seeks reconsideration of the 2020 Order. For support, he rehashes many of the arguments from his opposition to the Defendants' initial motion to compel. The Court is unpersuaded by the Plaintiff's argument. It continues to view the wage-and-hour claims as properly subject to the parties' arbitration agreement for the reasons set forth in the 2020 Order. Since these predicate claims are subject to arbitration, the Plaintiff's individual PAGA claim will also be subject to arbitration. During the Court's consideration of the prior motion to compel arbitration, the Defendants conceded that the Plaintiff's PAGA claims were not subject to arbitration. At the time, the California Supreme Court's opinion in Iskanian v. CLS Transp. Los Angeles, LLC, 327 P.3d 129 (Cal. 2014), set forth the controlling law on that issue. Recently, the Supreme Court has held that the Federal Arbitration Act ("FAA") preempts the rule of California law established by Iskanian. Judge Huff notes that the background of this case is nearly identical to Moriana. In both cases, an employee filed a complaint alleging PAGA claims and various predicate wage-and-hour violations. The defendant in Moriana, Viking River Cruises ("Viking"), moved to compel arbitration of the plaintiff's individual PAGA claim and to dismiss her representative PAGA claim. The trial court denied the motion to compel, and the California Court of Appeal affirmed the denial on the basis of the California Supreme Court's opinion in Iskanian. The Supreme Court overruled these decisions and concluded that the FAA preempted the rule in Iskanian that precluded the division of PAGA actions into individual and non-individual claims through an arbitration agreement. Thus, Viking was entitled to enforce the agreement insofar as it mandated arbitration of Moriana's individual PAGA claim. Likewise, Judge Huff holds, the Defendants in this case are entitled to arbitrate the Plaintiff's individual PAGA claim because it is subject to the parties' valid, enforceable arbitration agreement as set forth in the Court's 2020 Order. Accordingly, the Court grants the Defendants' motion to compel arbitration of the Plaintiff's individual PAGA claim. Motion to Strike The Plaintiff alleges both individual and representative PAGA claims in Count XI of his Complaint. The Court now turns to the representative PAGA claim. The Defendants move to strike the representative PAGA claim from Count XI for lack of statutory standing. The Plaintiff contends that he has statutory standing to pursue a representative PAGA claim before the Court even if he is compelled to arbitrate his individual PAGA claim. Judge Huff says the Defendants' motion to strike is effectively a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) for lack of statutory standing, citing Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1022-24 (9th Cir. 2009). But, given that the Defendants filed an answer in this case, the Court considers the proper legal standards to be those that govern a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The standard governing a motion under Rule 12(c) is essentially the same as that governing a Rule 12(b)(6) motion, Judge Huff notes. When a Rule 12(c) motion is used to raise the defense of failure to state a claim, the motion is subject to the same test as a motion under Rule 12(b)(6). There are no relevant factual disputes between the parties on this issue, Judge Huff observes. The parties simply disagree as to whether the Plaintiff can maintain statutory standing to bring a representative PAGA claim once his individual PAGA claim is compelled to arbitration. The Court begins with a brief review of Moriana's holding on this issue. PAGA contains what is effectively a rule of claim joinder and an employee with statutory standing may seek any civil penalties the state can, including penalties for violations involving employees other than the PAGA litigant herself. However, under PAGA's standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action. In sum, Judge Huff says, the Supreme Court concluded that once a plaintiff's individual PAGA claims were compelled to arbitration, that plaintiff lacked statutory standing to continue to maintain her non-individual claims in court, and the correct course is to dismiss her remaining claims. The Defendants contend that Moriana's holding resolves the statutory standing issue. In contrast, the Plaintiff argues that the Supreme Court erred in its interpretation of PAGA's statutory standing. The Plaintiff primarily takes issue with the Supreme Court's interpretation of the California Supreme Court's opinion in Kim v. Reins Int'l Cal., Inc., 459 P.3d 1123, 1133 (Cal. 2020). The Plaintiff asserts that Justice Sotomayor invited California courts to correct this error in her concurrence. Notwithstanding Justice Sotomayor's concurrence, a majority of Justices--including Justice Sotomayor--held that a plaintiff lacks statutory standing to bring a representative PAGA claim without a related individual PAGA claim in that same proceeding, Judge Huff states. Moreover, the Supreme Court explicitly considered Kim when reaching this holding. The Court is disinclined to substitute its own interpretation of California state law in place of an interpretation set forth so recently by the Supreme Court. Moreover, like the Supreme Court, the Court sees no mechanism provided by PAGA to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. Accordingly, the Court strikes the Plaintiff's representative PAGA claim from Count XI because he now lacks statutory standing to bring the claim before the Court. Request to Stay The Plaintiff argues that if the Court finds in favor of the Defendants on the statutory standing issue, then the Court should stay this case until the California Supreme Court issues its opinion in the appeal of Adolph v. Uber Techs., Inc., No. G059860, 2022 WL 1073583 (Cal. Ct. App. Apr. 11, 2022). The Plaintiff requests that the Court stays this case until after the California Supreme Court issues its order in Adolph. The Plaintiff contends that the California Supreme Court will correct the Supreme Court's error on the question of statutory standing. Judge Huff holds that two factors weigh heavily against a stay. First, the Supreme Court directly addressed the statutory standing issue in Moriana. Although the California Supreme Court may also address this question, the Court is already presented with persuasive authority on the statutory standing issue. Second, the Court has no assurances of when the California Supreme Court will decide Adolph. The opening merits brief in the appeal was due on Sept. 19, 2022, but neither the parties nor the Court know when this case will be resolved. The Court declines to issue an indefinite stay of months, or possibly years, on the possibility that the California Supreme Court's interpretation of statutory standing will differ from the interpretation articulated in Moriana. For these reasons, the Court grants the Defendants' motion. It strikes the Plaintiff's representative PAGA claim from Count XI of his complaint and compels the remaining individual PAGA claim in Count XI to be arbitrated. As the PAGA claims were the only remaining claims before the Court, the Court dismisses the case. A full-text copy of the Court's Order dated Sept. 12, 2022, is available at https://tinyurl.com/2zh2duyk from Leagle.com. SINGTEL OPTUS: Slater & Gordon Mulls Class Action Over Data Breach ------------------------------------------------------------------ Philip King, writing for accountants daily, report that law firm Slater & Gordon is investigating a possible class action against Optus over its data breach that compromised the personal details of millions of customers and reveals small businesses are "sitting ducks" for criminals, according to CPA Australia. The law firm said it was exploring "potential legal avenues for affected customers", thought to be as many as 10 million current and former Optus users, while the accounting body called on the government to find funds in the upcoming budget to help small business defend itself against cyber attacks. Slater & Gordon senior associate Ben Zocco said the fact the breach appeared to have disclosed driver's licence and passport numbers of some Optus users was "extremely concerning". "This information alone would go a long way in allowing a criminal to steal an affected customer's identity," Mr Zocco said. "Very real risks are created by the disclosure of their personally identifiable information, such as addresses and phone numbers. "We consider that the consequences could be particularly serious for vulnerable members of society, such as domestic violence survivors, victims of stalking and other threatening behaviour, and people who are seeking or have previously sought asylum in Australia. "Given the type of information that has been reportedly disclosed, these people can't simply heed Optus' advice to be on the look-out for scam emails and text messages." The data breach, which is now the subject of an AFP special taskforce investigation, was being assessed by Slater & Gordon for possible legal options on behalf of affected customers. Slater & Gordon has extensive experience in mass claims arising out of privacy law, including having acted for class members in a landmark data breach case against the Australian government on behalf of thousands of asylum seekers whose personal information was leaked online in 2014. Cyber security experts contacted by Accountants Daily said while the private information of individuals was compromised, the criminals' real targets were businesses vulnerable to sophisticated email scams targeting accounts payable. CPA Australia spokeswoman Dr Jane Rennie said it was now crucial the federal government woke up to the cyber risks for small businesses, which lacked the resources of a large company like Optus to protect against online criminals. "Australian small businesses are sitting ducks for cyber attacks," she said. "They simply don't have the same resources as big corporates to protect themselves against cyber crime. "New scams, phishing attacks, identity theft and other cyber crimes are occurring daily. A cyber attack can be costly, damaging a company's reputation and putting customers, business owners and employees at risk." With research showing two-thirds of small businesses had failed to review their cyber security in the past 12 months, the government needed to help them get up to speed, she said. "Too many small businesses are uninsured and unprepared for cyberattacks. Increasing digital literacy and cyber-awareness in business owners and their businesses is critical," she said. "Technology training and resources for small businesses need to be increased. We want the federal government to provide this support in the upcoming budget." Meanwhile, the AFP confirmed it was aware of reports that some of the stolen data was up for sale on the web and it was working closely with overseas law enforcement to identify the offenders behind this attack. A special taskforce called Operation Hurricane has been launched to identify the criminals behind the breach and Assistant Commissioner Cyber Command Justine Gough said the AFP was well equipped for investigations of this type. "This is an ongoing investigation but it is important the community knows the AFP and our partners are doing everything within scope to identify the offenders responsible, and to also ensure we can protect individuals who are now potentially vulnerable to identity theft," she said. "We are aware of reports of stolen data being sold on the dark web and that is why the AFP is monitoring the dark web using a range of specialist capabilities. Criminals, who use pseudonyms and anonymising technology, can't see us but I can tell you that we can see them." She said cyber crime was the break and enter of the 21st century and the Optus breach was unlikely to be the last. "We will use all our technical capabilities and tools to protect the public from cybercrime but we also need the public to be extra vigilant," she said. "With that in mind, we ask all Australians to think about their online security and take practical measures to better protect themselves from scams and phishing attempts." [GN] STATE FARM: Averts Class Action Over Lowball DV Settlements ----------------------------------------------------------- Dave LaChance, writing for Repairer Driven News, reports that a federal appeals court has turned down a bid by three Georgia plaintiffs for class recognition in their suit accusing State Farm of years of lowball diminished value (DV) settlements, although it acknowledged that there are "fundamental flaws" in the formula that a number of carriers, including State Farm, follow. The Eleventh Circuit Court of Appeals affirmed a lower court's ruling that plaintiffs Rashad Baker, Rachael Leonard, and Zelma Stovall had not established that the court-approved formula used by State Farm "is wrong for all claims across the spectrum of vehicle makes, model years, mileage, severity levels, and repair costs." "The district court ruled in favor of State Farm to hold that the central liability question was too individualized to satisfy [Federal Rules of Civil Procedure] Rule 23's commonality and predominance requirements. After careful review, we affirm," reads the court's order, made public on Sept. 21. In their complaint, filed Dec. 7, 2018, the plaintiffs had asserted that more than 600,000 State Farm insurance policy holders were injured by the carrier's use of "an inherently unfair assessment methodology" that resulted in too-small settlements of DV claims. They had sought certification of a class consisting of "All persons issued a Georgia vehicle insurance policy by State Farm who -- based on loss dates between December 7, 2017 and the date of certification -- made physical damage claims under their policies" that were assigned certain comprehensive or collision cause of loss codes. Generally, DV is the difference between the value of the vehicle if there had never been damage, and its value after repairs have been completed. The appeals court acknowledged that the plaintiffs' expert witness, vehicle appraiser Richard Hixenbaugh, had found "some fundamental flaws" with the a state-approved formula, known as 17(c), that State Farm and other insurers follow in DV cases. Still, the court affirmed the Sept. 2, 2021 ruling by Georgia U.S. District Court Judge Clay D. Land, who "agreed with State Farm that Dr. Hixenbaugh's sample was too small and not representative of the class; therefore, Appellants failed to demonstrate that State Farm's use of the 17(c) formula always resulted in the underassessment of diminished value claims." Hixenbaugh had testified that State Farm's use of 17(c) results in under-assessment of diminished value 100% of the time. He pointed out three flaws in the formula: DV is capped at 10% of a vehicle's pre-loss value, though DV losses can run up to 25%; mileage is double-counted, both in estimating pre-loss value and again as part of the mileage modifier, and vehicles over a certain mileage -- either 100,000 or 150,000, depending on the vehicle -- are incorrectly assumed to have no retail sale value. He analyzed 51 State Farm DV cases, in which he was hired to help challenge the insurer's assessment. In each case, he found, an appraiser's figure exceeded the 17(c) assessment. The plaintiffs hired appraisers to conduct DV appraisals, and "both appraisers opined that the diminished value was significantly more than the value State Farm calculated using the 17 (c) formula," Land wrote. State Farm, he added, hired its own expert, who found the same thing. Yet, Land wrote, the plaintiffs "recognize that calculating damage using a traditional approach, such as case-by-case diminished value appraisals like the ones Plaintiffs commissioned, would result in individual issues predominating over common issues and make class certification inappropriate." The Eleventh Circuit agreed. It found that the "generalized evidence" presented indicates that the members of the putative class would each have to have their cases examined individually, meaning that the damage could not be repaired with a single, broad remedy. "[T]he answer to the central liability question -- whether State Farm breached its contractual duty to accurately assess diminished value claims by applying the 17(c) formula -- requires a finding that each putative class member received a lower reimbursement for his diminished value claim than the contract entitled him to. These are individualized inquiries," the court said. State Farm has been under a court order to use 17(c) since the resolution of State Farm Mutual Insurance Co. v. Mabry in 2001. Finding that State Farm had no appropriate methodology for calculating DV, the Georgia Supreme Court gave the carrier a number of options, including the 17(c) formula. State Farm adopted 17(c), and, as Land noted, is still bound to use the formula today, under threat of contempt. The Mabry ruling prompted John Oxendine, then Georgia's insurance commissioner, to issue a 2008 directive clarifying that the department "has never promulgated or produced by regulation any formula for use in the determination of diminution of value as it relates to physical damage claims nor has the Department endorsed any specific formula or method." "The nature of each claim demands that carriers must take into consideration all relevant information in the evaluation of diminished value claims including, but not limited to, relevant information provided by an insured regarding diminution of value," Oxendine wrote. The original suit remains to be resolved, with only the individual claims of the named plaintiffs to be considered. Land has given the parties 21 days to file a status report as to whether their claims will be tried or otherwise resolved. [GN] SUPERIOR WALL: Hernandez Files Suit Over Failure to Pay OT Wages ---------------------------------------------------------------- The case, GERMAIN HERNANDEZ, individually and on behalf of similarly situated individuals, Plaintiff v. SUPERIOR WALL SYSTEMS, INCORPORATED, SUPERIOR WALL SYSTEMS, INC., and BRIAN DONALDSON, Defendant, Case No. 4:22-cv-03077 (S.D. Tex., September 9, 2022) arises from the Defendants' alleged violations of the Fair Labor Standards Act. The Plaintiff has worked for the Defendants beginning in the year 2000 through July 28, 2022 as a construction worker on commercial buildings construction. According to the complaint, the Plaintiff and other similarly situated construction workers regularly worked more than 40 hours per week as required by the Defendants. However, the Defendants did not pay them overtime premium at the rate of one and one-half times their regular rates of pay for any of the hours that they worked in excess of 40 in a workweek. Instead, they were only paid on an hourly basis as per Defendant Donaldson's decision, says the suit. The Plaintiff brings this complaint on behalf of himself and all other similarly situated construction workers to recover all unpaid overtime wages against the Defendants, as well as liquidated damages in an equal amount to the overtime wage damages, pre-judgment interest, all costs and attorney's fees incurred, and other relief as the Court deems just and equitable. Superior Wall Systems, Incorporated and Superior Wall Systems, Inc. provide construction services. Brian Donaldson is an owner/executives of the Corporate Defendants. [BN] The Plaintiff is represented by: Thomas H. Padgett, Jr., Esq. Josef F. Buenker, Esq. THE BUENKER LAW FIRM P.O. Box 10099 Houston, TX 77206 Tel: (713) 868-3388 Fax: (713) 683-9940 E-mail: tpadgett@buenkerlaw.com jbuenker@buenkerlaw.com TAPESTRY INC: Gomez FTSA Suit Removed to M.D. Florida ----------------------------------------------------- The case styled MARISSA GOMEZ, individually and on behalf of all others similarly situated v. TAPESTRY, INC., Case No. 2022-CA-2015, was removed from the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida, to the U.S. District Court for the Middle District of Florida on September 16, 2022. The Clerk of Court for the Middle District of Florida assigned Case No. 8:22-cv-02164 to the proceeding. The case arises from the Defendant's alleged violation of the Florida Telephone Solicitation Act by sending telephonic sales calls using an automated system on the telephone numbers of the Plaintiff and similarly situated consumers without obtaining their prior express written consent. Tapestry, Inc. is an American multinational luxury fashion holding company, headquartered in New York. [BN] The Defendant is represented by: Jeffrey B. Pertnoy, Esq. Bryan T. West, Esq. Monica M. Kovecses, Esq. AKERMAN LLP Telephone: (305) 374-5600 E-mail: jeffrey.pertnoy@akerman.com bryan.west@akerman.com monica.kovecses@akerman.com UNION PACIFIC: Nebraska Court Denies Bid to Strike in Baker Suit ---------------------------------------------------------------- Senior District Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska denies the Defendant's motion to strike in the lawsuit styled JOHN BAKER, Plaintiff v. UNION PACIFIC RAILROAD COMPANY, Defendant, Case No. 8:20CV315 (D. Neb.). The matter is before the Court on Defendant Union Pacific Railroad Co.'s ("U.P.") motion to strike or, in the alternative, supplemental motion in limine. This is an action for disability discrimination that was set for trial on Sept. 19, 2022. U.P. moves under Federal Rule of Civil Procedure 12(f) for an Order striking Alexander Wise from the Plaintiff's proposed trial witness and precluding him from testifying at trial. It also asks the Court to strike the Plaintiff's proposed Trial Exhibits 61-63. Those exhibits are listed on the Plaintiff's witness list as the declaration of Alexander Wise and two eHealthsafe datasets, Filing No. 396, Order on Pretrial Conference ("Pretrial Order"). U.P. raised hearsay, foundation, authenticity, relevance, Federal Rule of Evidence 403, and improper expert testimony objections to Trial Exhibits 61-63 in the Pretrial Order. U.P. contends that Mr. Wise is a paralegal at Baker's counsel's law firm, and states that Baker never disclosed him during discovery as someone with knowledge relevant to the lawsuit. It also contends that Wise's purported testimony derives exclusively from voluminous spreadsheets that he received from the Plaintiff's counsel and analyzed. It states that the spreadsheets that Wise aims to testify about identify Union Pacific employees, who received medical restrictions and were produced years ago in Harris v. Union Pacific. Harris v. Union Pacific was the caption of the putative class action case before it was severed, so the datasets were produced by Union Pacific discovery in this case. U.P. argues Wise has no foundation to testify to the documents. Further, it argues Wise reached his conclusions after manipulating the data in the spreadsheets, which is properly the subject of expert testimony. The Railroad states that "Baker intends to argue that the sheer number of other employees appearing on the documents suggests something unlawful." The Railroad argues the testimony and spreadsheets will mislead the jury and is overly prejudicial. In response, the Plaintiff characterizes the Defendant's motion as a request to exclude as untimely, or in the alternative as unfairly prejudicial, witness testimony summarizing Defendant's own company data that it produced in discovery and testified about in 30(b)(6) depositions. Baker argues that exclusion of this highly relevant and probative evidence is not warranted because (1) it is procedurally improper under Rule 12(f) because the pretrial order is not a pleading; (2) the motion is untimely; (3) the evidence is relevant to the Plaintiff's case; (4) the Plaintiff properly disclosed Mr. Wise as a lay witness; and (5) the Plaintiff's summary testimony is otherwise admissible and not unduly prejudicial to the Defendant. Judge Bataillon finds that the Plaintiff has shown that Mr. Wise was disclosed as a witness in the summer of 2018. Although the Court's deadline for Phase I depositions had closed prior to the disclosure, the parties agreed to allow some depositions past that time. U.P. did not request to depose Wise. The exhibits were addressed in dueling affidavits in the class action proceedings in this case before the claims of individual plaintiffs were severed. The Court finds the Defendant's motion to strike should be denied. First, the Defendant's motion is not procedurally proper. The challenged testimony and exhibits are not pleadings that fall within Federal Rule of Civil Procedure 12(f). The Defendant's motion is more in the nature of an objection that can be interposed at trial. Also, the motion is not timely. This motion was filed on the eve of trial. The Railroad has no explanation--other than its argument that the disparate impact claim is improper or should be dismissed--for failing to act when the Plaintiff disclosed Mr. Wise in 2018, and it did not bring the issue to the Court's attention at the pretrial conference on March 10, 2022. The Court also finds U.P.'s claims of surprise are unavailing. The record shows that the Railroad was aware of Wise's testimony in an earlier phase of the case and had time to introduce its own evidence to rebut the testimony. The Plaintiff submitted and relied on the Wise declaration and underlying spreadsheets and datasets in response to the Railroad's motion for summary judgment. The Railroad continues to assert that the Plaintiff's disparate impact claim is improper, although the Court rejected that contention several times, denying summary judgment on the issue, as well as denying a motion to bifurcate and a motion to dismiss. The Railroad's contention that the Court rejected similar testimony in the Sanders case (Sanders v. Union Pacific, 4:20-cv-03023 (D. Neb.)) is similarly unavailing, Judge Bataillon says. Mr. Wise's testimony relates to evidence produced in discovery by the Railroad. The Plaintiff characterizes the challenged exhibits as Federal Rule of Evidence 1006 summaries. The Court is unable to assess the admissibility of the testimony or exhibits in the context of a pretrial motion. The Railroad is free to object to the evidence at trial. Also, the evidence appears to be relevant, for the most part, to the Court's determination of equitable or injunctive relief and, depending on the evidence at trial, it may be the case that the disparate impact evidence theory is tried only to the court, outside the presence of the jury. The parties are admonished to approach the bench before adducing the evidence. Accordingly, the Defendant's motion to strike is denied. A full-text copy of the Court's Memorandum and Order dated Sept. 12, 2022, is available at https://tinyurl.com/2p9awm7n from Leagle.com. UNION PACIFIC: Nebraska Court Grants Bid to Dismiss in Meza Suit ---------------------------------------------------------------- In the lawsuit captioned DAVID MEZA, Plaintiff v. UNION PACIFIC RAILROAD CO., Defendant, Case No. 8:22CV102 (D. Neb.), Chief District Judge Robert F. Rossiter, Jr., of the U.S. District Court for the District of Nebraska grants the Defendant's motion to dismiss. The matter is before the Court on Union Pacific Railroad Co.'s ("UP") Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Specifically, UP moves to dismiss Count II of the Amended Complaint. Also before the Court is Plaintiff David Meza's Motion to Strike pursuant to Federal Rule of Civil Procedure 12(f). In the alternative, Meza requests the Court consider his surreply in opposition to UP's motion to dismiss (Filing No. 32-1). The lawsuit follows an unsuccessful class action in Quinton Harris, et al. v. Union Pacific Railroad Company, No. 8:16-cv-381 (D. Neb.). Harris, filed in February 2016, was a class action claiming UP's fitness-for-duty policies and practices violated the Americans with Disabilities Act of 1990 ("ADA"), as amended, 42 U.S.C. Section 12101, et seq. There, the plaintiffs alleged, among other things, several violations under the ADA, including claims on behalf of the class for disparate treatment and disparate impact. The Harris plaintiffs moved for class certification on Aug. 17, 2018. The plaintiffs sought certification of Count I of their Amended Complaint, which alleged disparate treatment pursuant to the ADA. The district court granted the Harris plaintiffs' motion for class certification, in February 2019. Thereafter, UP appealed, and the Eighth Circuit Court of Appeals reversed on March 24, 2020 (Harris v. Union Pac. R.R. Co., 953 F.3d 1030 (8th Cir. 2020)). In this case, Meza alleges he is a member of the putative class in Harris, who faced the same discriminatory fitness-for-duty policies and practices. Meza, who worked for UP and its predecessor since 1996, alleges he was disqualified from his job after undergoing a fitness-for-duty evaluation triggered from injuries he suffered in a motorcycle accident. UP's "fitness-for-duty" program requires employees in certain positions, including Meza's, to disclose reportable health events. According to Meza, in March 2017, UP placed him on various work restrictions for a period of five years. These restrictions prohibited Meza from working as a carman. Meza claims he was able to perform his job, but that UP prevented him from returning to his position. Mr. Meza allegedly filed a Charge of Discrimination with the federal Equal Employment Opportunity Commission ("EEOC") on April 17, 2020, and the EEOC issued a determination on March 15, 2022. Meza proceeded to file this action on April 28, 2022. His Amended Complaint purports to allege two causes of actions: disparate treatment pursuant to 42 U.S.C. Section 12112(a) and disparate treatment pursuant to 42 U.S.C. Section 12112(b)(6). UP now moves to dismiss Count II of the Amended Complaint, arguing it is untimely. UP argues that Count II of the Amended Complaint, while styled as a disparate-treatment claim, is actually one for disparate impact, and that the disparate-impact claim was not sufficiently tolled by the Harris action. Alternatively, UP argues that Meza failed to sufficiently plead the prima-facie elements of a disparate-treatment claim. Mr. Meza, in turn, argues that his second disparate-treatment claim is properly alleged under 42 U.S.C. Section 12112(b)(6). As he sees it, with the benefit of class-action tolling stemming from the Harris suit, he timely filed charges of discrimination with the EEOC. Motion to Dismiss The question before the Court is whether Count II of Meza's Amended Complaint sufficiently states a claim for relief to survive a Rule 12(b)(6) motion to dismiss. Count II of Meza's Amended Complaint attempts to plead a claim for disparate treatment under the ADA and is titled as such. The Court finds, however, that the Plaintiff has failed to state a claim. In reaching this conclusion, the Court need not decide whether a disparate-treatment claim is cognizable under 42 U.S.C. Section 12112(b)(6), as the parties suggest is determinative. Instead, when reviewing the allegations within the Amended Complaint, the Court finds Meza failed to sufficiently plead a disparate-treatment claim. As noted, Meza's second cause of action is brought pursuant to 42 U.S.C. Section 12112(b)(6), which generally prohibits employers from screening out employees with disabilities through qualification standards and tests. According to UP, Meza's second cause of action fails as a matter of law because Section 12112(b)(6) only permits an ADA plaintiff to pursue claims for disparate impact, not disparate treatment. This argument focuses on the effects-based language of Section 12112(b)(6), which includes criteria that "screen out or tend to screen out" individuals with a disability. Although the U.S. Supreme Court has not yet addressed this issue, Judge Rossiter notes that several courts hold that Section 12112(b)(6) applies only to disparate-impact claims, as UP argues here. UP argues that Eighth Circuit caselaw is instructive, citing to Boersig v. Union Electric Co., 219 F.3d 816 (8th Cir. 2000). In Boersig, the Eighth Circuit rejected the plaintiff's attempt to categorize his reasonable-accommodation claim as one for disparate impact. Judge Rossiter holds that UP's arguments, and the cases it relies on, are persuasive. However, the Court finds it unnecessary to reach that issue because, even assuming without deciding the viability of a disparate-treatment claim under Section 12112(b)(6), Meza's Amended Complaint lacks sufficient factual allegations to state a claim upon which relief may be granted. Judge Rossiter notes that disparate-treatment claims require allegations and evidence of intentional discrimination. Here, Meza's second claim is devoid of any factual allegations on which the Court could infer intentionality by UP--that is, allegations that UP intentionally treated Meza less favorably than others because of his protected characteristic. While Meza argues that UP's policy is facially discriminatory illustrating subjective intent, that is not what his amended complaint alleges. The lack of alleged intent alone leads the Court to conclude that Meza's claim fails to state a claim for disparate treatment. Motion to Strike Mr. Meza files a motion to strike, or in the alternative, a motion for leave to file a surreply in response to UP's reply brief. In support, Meza argues that UP raised arguments that were not included in its opening brief. Meza asks the court to strike Section II.A.I. of UP's reply or grant him leave to file a surreply. Meza's surreply was attached to its motion. The Court generally views UP's reply as a logical extension of its argument that Meza failed to state a claim under Rule 12(b)(6), and thus, denies Meza's request to strike Section II.A.I. of UP's reply. However, the consideration of Meza's surreply will not prejudice UP. Thus, the Court grants Meza's request to file a surreply and considers the surreply in deciding the present motion to dismiss. The surreply attached to his motion is deemed filed instanter and need not be refiled. Conclusion Judge Rossiter finds Meza's second cause of action, Unlawful Screening -- Disparate Treatment, fails to state a claim upon which relief could be granted. Accordingly, the Court rules as follows: 1. Defendant Union Pacific Railroad Co.'s motion to dismiss is granted; 2. Count II of the Amended Complaint is dismissed without prejudice; and 3. Plaintiff David Meza's Motion to Strike is granted in part and denied in part. Filing No. 32-1 is deemed filed instanter. A full-text copy of the Court's Memorandum and Order dated Sept. 12, 2022, is available at https://tinyurl.com/4mu6rh97 from Leagle.com. UNITED STATES: Birdbear's Bid for Partial Summary Judgment Denied ----------------------------------------------------------------- In the case, ROGER BIRDBEAR, et al., Plaintiffs v. THE UNITED STATES OF AMERICA, Defendant, Case No. 16-75L (Fed. Cl.), Judge Elaine D. Kaplan of the U.S. Court of Federal Claims issued an Opinion and Order: a. denying the Plaintiffs' Motion for Partial Summary Judgment as to Count 4 of their Third Amended Complaint; and b. granting in part and denying in part the government's Cross-Motion for Partial Summary Judgment as to Counts 1-4 and 6-10 of the Plaintiffs' Third Amended Complaint. The Plaintiffs, Nelson Birdbear, Roger Birdbear, Thomas Birdbear, Jamie Lawrence, and Rae Ann Williams, are members of the Three Affiliated Tribes of the Fort Berthold Indian Reservation. They are the beneficial owners of allotted land on the Reservation that is held in trust for them by the United States. Portions of the Plaintiffs' allotted lands are subject to oil and gas leases that the Secretary of the Interior approved and manages pursuant to federal statutes and regulations. The Plaintiffs claim that these statutes and regulations impose fiduciary obligations on the United States with respect to the approval and management of mineral leases on their allotted lands and that the United States has breached those obligations in numerous respects. They seek an award of damages to compensate them for the tens of millions of dollars in losses they assert they have experienced as a result of those breaches. In the Third Amended Complaint, which is the operative pleading, the Plaintiffs allege that "they are the beneficial owners of more than 2,200 acres of allotted land, held in trust by the United States, within and surrounding the exterior boundaries of the Fort Berthold Reservation. They assert that "mineral rights in more than 1,550 acres of their allotted lands are leased for oil and gas mining purposes," and that the Secretary, acting as trustee, "selected and approved" the Lessees. According to the Plaintiffs, "the Department of Interior, and more specifically the Bureau of Land Management, has consistently failed to collect revenue from oil and gas produced on federally managed lands and has failed to provide required oversight and management of oil and gas operations." They also contend that they "have sought information from the United States regarding the management of their leases, but the information is either refused, ignored, or not provided in a reasonable or timely manner." After the Plaintiffs filed the Third Amended Complaint on Aug. 6, 2018, the parties again engaged in extensive discovery until March 5, 2021, when the Plaintiffs filed their motion for partial summary judgment. The government filed its cross-motion and response on April 23, 2021, and oral argument was held on the cross-motions on Feb. 4, 2022. Currently before the Court are the Plaintiffs' Motion for Partial Summary Judgment as to Count 4 of their Third Amended Complaint and the government's Cross-Motion for Partial Summary Judgment as to Counts 1-4 and 6-10 of the Plaintiffs' Third Amended Complaint. The government's cross-motion challenges the Court's jurisdiction over the claims set forth in Counts 1, 3, 7, 8, 9, and 10. The government also contends that it is entitled to summary judgment as to Counts 2, 4, 6, and 7 because the Plaintiffs have not developed any factual support for the claims set forth in those counts. The bulk of the government's motion for summary judgment is devoted to its challenges to the Court's jurisdiction over the claims set forth in Counts 1, 3, 7, 8, 9, and 10 of Plaintiffs' Third Amended Complaint. It contends that none of the claims fall within the waiver of sovereign immunity contained in the Indian Tucker Act, 28 U.S.C. Section 1505. Judge Kaplan holds that the government's challenge to the Court's jurisdiction over the claims set forth in Counts 3, 7, and 8 lack merit. She agrees with the government, however, that the Plaintiffs have failed to establish the Court's jurisdiction over the claims in Counts 1, 9, and 10. In Count 1, the Plaintiffs allege that the government has a specific fiduciary obligation to subject leases for oil and gas development on their land to the competitive process described in 25 C.F.R. Section 212. The government contends that the Secretary did not have a duty to hold a competitive auction for leases to maximize Plaintiffs' economic interests and that, accordingly, the Court lacks jurisdiction over Count 1 under the Indian Tucker Act. Judge Kaplan holds that the government's contention lacks merit. Because the government subjected the leases to public bidding, the requirements of 25 C.F.R. Section 212.20(b) applied, notwithstanding Section 1(a)(4) of the Fort Berthold Mineral Leasing Act ("FBMLA"). The Plaintiffs allege in Count 3 that the government breached its fiduciary duty "to properly manage, administer and supervise" their lands "to prevent the avoidable loss of oil and gas through drainage." The government's response -- that the regulations do not impose on the Secretary a specific fiduciary obligation to protect the Plaintiffs' lands from drainage -- is unpersuasive. Judge Kaplan finds that the government has a specific fiduciary obligation to protect the Plaintiffs against the uncompensated drainage of oil and gas held in trust for them. In Count 7, the Plaintiffs contend that the Secretary has violated this provision by approving communitization and unitization agreements that affect their land on the Reservation without obtaining consent from the owners of a majority of the interest in the land. The government does not deny that the claims in Count 7 are based on regulatory and statutory provisions that impose specific obligations on the United States. Judge Kaplan, likewise, finds that the FBMLA's consent requirement and the regulation's acreage limitation on mineral leases plainly prescribe the Secretary's conduct with respect to oil and gas leases on allotted land. In Count 8, the Plaintiffs claim that the Secretary breached what they allege was a duty imposed upon her by the governing regulations to ensure the timely drilling of oil and gas wells on their leased land. Judge Kaplan agrees with Plaintiffs that the United States has a specific fiduciary obligation to ensure that lessees exhibit reasonable diligence in their development of mineral resources. In Count 9, the Plaintiffs allege that the United States breached its fiduciary duties by failing to lease some 500 acres of allotted land held in trust for them, notwithstanding their requests that it do so. The government contends that the Court lacks jurisdiction over this claim because the Plaintiffs have failed to identify a substantive law that requires the United States to lease all of their allotted lands. Judge Kaplan agrees with the government. The Plaintiffs have not identified a statute or regulation that requires the Secretary to lease all of their lands for oil and gas development upon their request. They do not impose any specific obligation on the Secretary to enter such leases in the first instance. In Count 10, Plaintiffs allege that the United States has a fiduciary duty to lease approximately 200 acres of their unleased allotted lands for grazing purposes but that it has not done so. The provision, however, does not impose any specific obligation on the United States to lease property for grazing purposes. It merely recites a general trust relationship regarding Indian agricultural lands. "A statute or regulation that recites a general trust relationship between the United States and Indian People is not enough to establish any particular trust duty." Having found that Counts 1, 3, 7, and 8 allege violations of specific fiduciary obligations set forth in the relevant statutes and regulations, the next issue before the Court is whether those statutes and regulations "can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained." In this case, the answer to that question is yes; the money-mandating nature of the obligations may be inferred from the government's comprehensive control over the development of oil and gas on the Plaintiffs' land. Judge Kaplan finds, therefore, that the government's comprehensive responsibility for approving and managing Indian oil and gas leases under the Indian Long-Term Leasing Act and its implementing regulations, in conjunction with the FBMLA, and the regulations at 43 C.F.R. Subchapter C, establish a fiduciary relationship between the United States and the Plaintiffs with respect to the management of the oil and gas resources on their land. She concludes that the Plaintiffs have alleged the violations of specific fiduciary obligations imposed by statute and regulation. She further finds that the comprehensive control the Secretary exercises over mineral leasing, coupled with the trust language found in the relevant statutes and regulations, gives rise to an inference that damages are available for the violation of those specific obligations. Judge Kaplan has rejected the government's argument that the claims in Count 1 (challenging the alleged failure to advertise the leases to receive optimum competition for bonus consideration) are not within the Court's jurisdiction under the Indian Tucker Act. Moreover, because the Plaintiffs have not met their burden of establishing that the Secretary breached a continuing duty to remove the lessees, the statute of limitations bars the claims in Count 1, except as to leases entered on or after Sept. 15, 2009. The parties filed cross-motions for summary judgment as to Count 4 of the Plaintiffs' Third Amended Complaint. In their motion, the Plaintiffs argue that they are entitled to judgment as a matter of law because the United States—without notice or hearings—disbursed funds to lessees from their Individual Indian Money ("IIM") accounts. The government, for its part, contends that it is entitled to summary judgment because the factual premise of Plaintiffs' claim is based on a misreading of the Statements of Performance ("SOPs") that the United States provides IIM account holders on a quarterly basis. Judge Kaplan finds the government's argument persuasive and consistent with the undisputed facts. SOPs report transaction activity in IIM accounts. But contrary to the Plaintiffs' claims in Count 4, the transactions on their SOPs that were identified as "Cash Disbursements" to the "Great Plains Regional Office of Bureau of Indian Affairs ("BIA")" do not reflect withdrawals made from their accounts by lessees. Rather, they reflect adjustments that lessees make in the amount of the royalty payments that they put into the accounts. The Plaintiffs' due process argument lacks merit for a number of reasons including that, because the funds did not belong to then until they were actually deposited in their IIM accounts, the Plaintiffs lacked the property interest required to implicate the Due Process Clause. Their motion for summary judgment as to this claim is therefore denied, and the government's cross-motion is granted. In Count 2, Plaintiffs claim that the Secretary violated her obligation to "value the oil, gas, and natural gas produced and saved from Plaintiffs' land for purposes of calculating royalties" they are due. So construed, Count 2 makes no claims that are not already encompassed by other claims in the Third Amended Complaint. Accordingly, to avoid confusion, Judge Kaplan will strike Count 2 from the Third Amended Complaint in accordance with RCFC 12(f). In Count 6, the Plaintiffs allege that the United States breached its trust duties when, allegedly in violation of 30 C.F.R. Section 1206.57, it allowed lessees to deduct transportation costs from the Plaintiffs' royalties without them having first submitted Oil Transportation Allowance Reports. The government contends that the pre-filing requirement for Oil Transportation Allowance Reports, which was in effect until July 1, 2015, applied only to oil leases, and that no such requirement ever existed for gas. Judge Kaplan finds that hte deduction of transportation costs from the Plaintiffs' royalty payments did not result in a breach of the government's fiduciary duties to collect and pay to them the royalty payments to which they are entitled under their lease agreements. The government is entitled to summary judgment as to this claim. In Count 7, the Plaintiffs allege that the Secretary approved communitization and unitization agreements affecting their properties without obtaining consent from owners representing a majority interest in those properties, which they claim violated FBMLA Section 1(a)(2)(A). The issue before the Court is the scope of the phrase "mineral lease or agreement." Considering the statutory language and its purposes, Judge Kaplan concludes that communitization agreements are not "mineral agreements" because they govern activities undertaken after mineral leases have been entered and approved. Because the statute and the regulations can easily be reconciled with one another, she rejects the Plaintiffs' argument that the Secretary had an obligation to secure the consent of the Indian lessors before approving communitization agreements among lessees. On the basis of the foregoing, Judge Kaplan denies the Plaintiffs' motion for partial summary judgment as to Count 4. She grants the government's motion for partial summary judgment as to Counts 4, 6, 7, 9, and 10. She is also grants the government's motion as to Count 1, except as to leases entered on or after Sept. 15, 2009, with respect to which it is denied. She denies the government's motion as to Counts 3 and 8. Count 2 is stricken from the Third Amended Complaint in accordance with RCFC 12(f). Additionally, on March 9, 2022, the Plaintiffs moved to supplement the record with slides from a Department of the Interior presentation entitled "Indian Mineral Royalty Management: Roles and Responsibilities of the U.S. Department of the Interior." The Plaintiffs' motion to supplement is granted. The parties are directed to file a joint status report no later than Oct. 11, 2022, recommending further proceedings in the case. A full-text copy of the Court's Sept. 16, 2022 Opinion & Order is available at https://tinyurl.com/38ue7per from Leagle.com. Michael R. Cashman -- mcashman@hjlawfirm.com -- Hellmuth & Johnson, PLLC, Edina, MN, for Plaintiffs. Terrance W. Moore -- tmoore@hjlawfirm.com -- Hellmuth & Johnson, PLLC, Edina, MN, Of Counsel. Thomas A. Benson, Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC, with whom was Todd Kim, Assistant Attorney General, for Defendant. Karen Boyd and Christopher King, Office of the Solicitor, U.S. Department of the Interior, Washington, DC, Of Counsel. VIRTUAL DINING: Raslavich Sues Over Unsolicited Phone Call Ads -------------------------------------------------------------- BENJAMIN RASLAVICH, individually and on behalf of all others similarly situated, Plaintiff v. VIRTUAL DINING CONCEPTS, LLC, Defendant, Case No. 157125290 (Fla. 13th Jud. Cir. Ct., September 9, 2022) brings this complaint as a class action alleging the Defendant of violations of the Florida Telephone Solicitation Act. The Plaintiff asserts that the Defendant has sent telephonic sales calls to his telephone number on or after July 1, 2021. Accordingly, the Defendant caused to send telephonic sales calls to individuals in an attempt to promote its goods and services, but failed to secure prior express written consent. Allegedly, the Defendant's telephonic sales calls involved an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed, the Plaintiff adds. Because of the Defendant's unsolicited telephonic sales calls, the Plaintiff and other similarly situated individuals were aggrieved. Thus, the Plaintiff seeks an injunction requiring the Defendant to cease all telephonic sales calls made without express written consent. The Plaintiff also seeks to recover damages, for herself and for other similarly situated individuals, as well as statutory damages, reasonable attorney's fees and court costs, and other relief as the Court deems necessary, says the suit. Virtual Dining Concepts, LLC offers a variety of fully-branded concepts that are easy to add in any kitchen. [BN] The Plaintiff is represented by: Clayton Kuhn, Esq. KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Tel: (813) 422-7782 Fax: (813) 422-7783 E-mail: Clay@theKRfirm.com WAITR HOLDINGS: Court Dismisses Shareholder Class Action -------------------------------------------------------- Waitr Holdings Inc. (Nasdaq: WTRH) on Sept. 26 disclosed that on August 10, 2022, the shareholder class action lawsuit against the Company and certain of its former officers and directors, filed in the United States District Court for the Western District of Louisiana (Case No. 19-cv-01260-TAD-KK) in September 2019, was dismissed. The Court ruled in favor of the Company and its former officers and directors on all claims and dismissed the case with prejudice. The deadline for appeal has passed with no action from plaintiffs. "After nearly three years, we are pleased that this judgment closes the door on the baseless attacks against the Company and its former leadership," said Carl Grimstad, Chief Executive Officer of the Company and its wholly-owned subsidiary, ASAP Inc. "We remain focused on utilizing our original delivery ethos to execute our new brand identity and implement our 'anything, anywhere ASAP' vision across a wider range of products and services." About ASAP ASAP.com, the on-demand delivery brand for Waitr Holdings Inc., is an online ordering technology platform using the "deliver anything ASAP" model making it easy to order food, alcohol, convenience, grocery, flowers, auto parts and more at your fingertips and get them delivered ASAP. Its proprietary in-stadium mobile ordering technology now provides an enhanced fan experience at sports and entertainment venues, allowing fans to place orders from their favorite in-stadium concessions, directly from their seats. Additionally, the ASAP.com platform facilitates access to third parties that provide payment processing solutions for restaurants and other merchants. It provides a convenient way to discover, order and receive a wide variety of on-demand products -- ASAP. As of June 30, 2022, we operate in approximately 1,000 cities throughout the United States. [GN] Asbestos Litigation ASBESTOS UPDATE: Hess Creditors Seeks Dismissal of Bankruptcy Case ------------------------------------------------------------------ Dietrich Knauth, writing for reuters.com, reports that the creditors of a bankrupt Hess Corp. subsidiary have asked a U.S. Judge to dismiss the Company's bankruptcy case, saying it serves no purpose other than to protect Hess from lawsuits related to asbestos exposure at a Virgin Islands oil refinery. The creditors allege that Hess, a $37 billion energy company, is abusing U.S. bankruptcy laws to dodge 900 claims stemming from asbestos contamination at a St. Croix refinery that it operated for decades, according to a motion filed in Houston. Asbestos at the refinery caused lung disease and cancer, including mesothelioma, according to the official creditors committee in the bankruptcy case. Hess subsidiary HONX filed for Chapter 11 protection in Houston on April 29, saying it intended to take advantage of the "breathing spell" of a bankruptcy case to reach a fair and efficient resolution of asbestos claims against Hess. In Thursday's filing, the creditors committee said HONX has no need for a "breathing spell" because it is a mere "husk of a company" that has been re-animated as a shield against lawsuits. HONX's predecessor company ran the St. Croix refinery from 1965 to 1998, and the refinery has since been sold to new owners not affiliated with Hess. "There is nothing here to resuscitate," the creditors wrote. Hess that HONX's bankruptcy offers the best way to reach a "timely and orderly" resolution of all asbestos claims related to the St. Croix refinery. The creditors argue that the asbestos lawsuits should be allowed to proceed against Hess outside of bankruptcy court. Allowing litigation to proceed would not harm HONX, which has no operations or assets to disrupt, according to the creditors. Hess is "terrified" to face juries in the Virgin Islands, where it has benefited from generous tax breaks while causing "devastating" damage to St. Croix's air quality and water supply, the creditors wrote. Those fears grew especially acute after the passage of a 2021 local law that expedited trials for claimants that are elderly or in poor health. Hess has never gone to trial in a Virgin Islands asbestos case, settling more than 1,000 cases to date, according to the creditors. ASBESTOS UPDATE: Imerys Insurers Files Motion to Toss Bankruptcy ---------------------------------------------------------------- A group of insurance companies has filed with the Bankruptcy Court a motion to toss the Chapter 11 cases of Imerys Talc America Inc. following years of unsuccessful attempts to reach a viable deal over legacy asbestos exposure claims, a group of insurance companies. "Despite having been in bankruptcy for over three years, the Debtors have accomplished little other than liquidating their ongoing business and incurring professional fees and other expenses that account for more than half the value of the companies. The Debtors have filed at least ten different proposed plans, none of which have been confirmable. The Debtors' last plan failed to achieve a necessary vote in October 2021. Since then, the Debtors have been engaged in mediation efforts to no effect. During this time, the value of their estates has continued to diminish by millions of dollars per month. Enough is enough. This case is inappropriate for chapter 11 and should be returned to the tort system," the Riverstone Insurers said in court filings. The Riverstone Insurers is comprised of TIG Insurance Company, as successor by merger to International Insurance Company, International Surplus Lines Insurance Company, Mt. McKinley Insurance Company (formerly known as Gibraltar Insurance Company), Fairmont Premier Insurance Company (formerly known as Transamerica Premier Insurance Company), Everest Reinsurance Company (formerly known as Prudential Reinsurance Company), and The North River Insurance Company. "Multiple grounds for dismissal of each individual debtor's case exist under 11 U.S.C. Sec. 1112, including diminution of the debtors' estate, the inability to confirm a plan, and the lack of a proper bankruptcy purpose. Dismissal is appropriate because the assets of the estates are rapidly dwindling. The Debtors have had years and over ten attempts to confirm a plan but have been unable to do so. Nor is there any possibility of rehabilitation of the Debtors talc business. The Debtors already have liquidated. Dismissal is appropriate for that reason alone," the Insurers said. ********* 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 ***