/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/221012.mbx C L A S S A C T I O N R E P O R T E R Wednesday, October 12, 2022, Vol. 24, No. 198 Headlines 7-ELEVEN INC: Court Grants Bid for Summary Judgment in Patel Suit A PLUS PERSONAL: Underpays Health Care Workers, Boudreaux Says A.H.D. HOUSTON: Court Denies Nicholson's Bid for Prelim. Injunction AARP: Discloses Digital Users' Identities, Markels Suit Claims ACADIA HEALTHCARE: Fleming Sues Over Unpaid Compensation ACKERCAMPS.COM LLC: K.V. Suit Removed to S.D. Illinois AETHON ENERGY: Fay FLSA Class Suit Transferred to N.D. Texas AFFIRM HOLDINGS: Faces Toole Shareholder Suit in California Court AGNES SCOTT COLLEGE: Senior Files ADA Suit in S.D. New York AGRANA FRUIT: Miller Wins Conditional Class Certification Bid AMERICAN UNIVERSITY: Senior Files ADA Suit in S.D. New York ANZA MANAGEMENT: Melara Sues Over to Recover Compensations ASSOCIATED CREDIT: Rolnitzky Files FDCPA Suit in S.D. New York BED BATH & BEYOND: Faces Si Shareholder Suit in DC BETTER BABY INC: Velazquez Files ADA Suit in S.D. New York BLUE RIDGE ROCK: Sands Sues Over Unpaid Minimum, Overtime Wages BLVD RESIDENTIAL: Tavera Files Suit in Cal. Super. Ct. BRADLEY UNIVERSITY: Senior Files ADA Suit in S.D. New York BRIDGETON LANDFILL: Clayborne & Firm Disqualified From Kitchin Suit BRINKER INT'L: Faces Class Suit Over Customer Payment Card Info BROOK MEAT: Asks More Time to Respond to Class Certification Bid BURNTWOOD TAVERN: Fails to Pay Minimum Wages, Keenan Says CARO BAMBINO: Velazquez Files ADA Suit in S.D. New York CAROLINA MOTOR: Settlement Class in Johnson Initially Certified CARVANA CO: RCL Sues Over Decline in Securities Market Value CARVANA LLC: Glover Sues Over Failure to Pay Regular, Overtime Wage CCA AND B LLC: Toro Files ADA Suit in S.D. New York CDR MAGUIRE: Henderson Sues to Recover Unpaid Overtime Wages CENTURYLINK INCORPORATED: Court Lifts Stay of Bultemeyer Suit CITIZENS BANK: Court Grants Bid to Dismiss Conti Class Suit COINBASE GLOBAL: Faces Laffoon Suit Over 7% Share Price Drop COPPERLEAF MANAGEMENT: Schneider Sues Over Unpaid Overtime Wages COTON COLORS: Velazquez Files ADA Suit in S.D. New York CRABTREE & BROWN: Jones Files ADA Suit in S.D. New York CREATIVE ENERGY: Velazquez Files ADA Suit in S.D. New York CREDIT MANAGEMENT: Horowitz Files FDCPA Suit in S.D. New York CUSTOM CORNHOLE: Velazquez Files ADA Suit in S.D. New York DAVLINS INC: Toro Files ADA Suit in S.D. New York DE RUOSI GROUP: Ruiz Files Suit in Cal. Super. Ct. DEVON ENERGY: Wright Files Suit in D. Wyoming DEWAYNE HILL: CHS Seeks More Time to File Class Status Bid DIAMANTE MEMBERS: Court Affirms Summary Judgment in Faigin Suit DREAM TEAM PIZZA: Taylor Sues Over Failure to Pay Sufficient Wages DRIVER PROVIDER: Loses Bid to Extend Class Cert Response Time DUCATI HOME: Sinche Sues to Recover Unpaid Overtime Wages EAST FORK INDUSTRIES: Toro Files ADA Suit in S.D. New York ENERGIZER BRANDS: E.D. New York Tosses Sklyar's 1st Amended Suit ERIE INDEMNITY: Exchange Suit Remanded to Court of Common Pleas ESPN INC: Swartz Sues Over Unlawful Wiretapping EVOLUTION NEW JERSEY: Lopaza Sues Over Wrongful Termination FASHION NOVA: Grieben Sues Over Unsolicited Telephonic Sales Calls FEDEX GROUND: 140 Discovery Opt-Ins Dismissed From Claiborne Suit FEDEX GROUND: Loses Judgment Bid as to Deppiesse in Claiborne Suit GEISINGER CLINIC: Finkbeiner Appeals Suit Dismissal to 3rd Cir. GEORGIA: Allowed to Leave to File Supplementary Material GROUP HEALTH: Cohen's Bid to Quash GHI's Subpoena Granted in Part HAWBAKER INC: Court Modifies Class Certification Dates in Packer HERR FOODS: Forlenza Files Flavored Cheese Curls Mislabeling Suit IANTHUS CAPITAL: Court Narrows Claims in Amended Securities Suits INTEGRATED TECH: Court Issues Show Cause Order in Monplaisir Suit JMK SUB SHOP: Does not Properly pay Workers, Mercedes Says JPMORGAN CHASE: Chaidez Sues Over Illegal Voice Print Collection KROGER CO: Extension of Class Status Bid Filing Sought L&G CONSTRUCTION: Fails to Pay Overtime Wages, Griffin Suit Says LAKELAND WEST: Diogu Sues Over Illegal Debt Collection Practices MADISON SECURITY: Court Denies Bid to Strike Jackson's Class Claims MARATHON OIL: Kunneman Seeks to Recover Unpaid Gas Royalties MAZDA MOTOR: Hearing on Bid to Certify Class Extended to Oct. 14 MEDICA SERVICES: Cobb Balks at Customer Service Reps' Unpaid Wages METROPOLITAN TRANSPO: Forsee Seeks to Certify Settlement Class MULTNOMAH COUNTY, OR: Filing of Class Cert. Bid Due April 26, 2023 NATIONAL RIFLE: Amended Case Mng't Order Entered in Dell'Aquilla NEW YORK: Farrell Petitions for S.C. Review in Mask Mandate Suit NORTH CAROLINA: Court Dismisses Bowens v. Ishee, MVCI & Officers OREGON: Russell's Bid to Intervene in Wyatt B. v. Brown Denied PELHAM TRANSPORTATION: Burleson Sues Over Unpaid Overtime Wages PHARMACEUTICAL PRODUCT: Final Order & Judgment Entered in Kendall PORTFOLIO RECOVERY: $50K in Attorneys' Fees Awarded in Butler Suit PROPETRO HOLDING: Ct. Initially Approves Settlement Class in Logan SEGA AMUSEMENTS: Muto Appeals Suit Dismissal to 9th Cir. SHERIDAN VILLAGE: Underpays Licensed Practical Nurses, Amos Says SIMPLER TIME: Toro Files ADA Suit in S.D. New York SIRCHIE ACQUISITION: Court Grants in Part Bid to Dismiss Green Suit SPLUNK INC: Court Modifies Class Cert. Briefing Sched & Hearing SUSHI PALACE: Faces Mendoza Suit Over Unlawful Labor Practices SWIFT TRANSPORTATION: Bouissey Wins Bid to Certify Class WATKINS AND SHEPARD: Settlement Deal in Doty Wins Final Nod WESTERN RANGE: Castillo Allowed to File Class Cert Bid Under Seal WESTWEGO CITY: Patton Appeals Suit Dismissal to 5th Circuit [*] 1st Annual Complex Litigation Ethics Conference - Register Now ********* 7-ELEVEN INC: Court Grants Bid for Summary Judgment in Patel Suit ----------------------------------------------------------------- In the case, Dhananjay Patel, et al., Plaintiffs v. 7-Eleven, Inc., et al., Defendants, Civil Action No. 17-11414-NMG (D. Mass.), Judge Nathaniel M. Gorton of the U.S. District Court for the District of Massachusetts issued a Memorandum and Order: a. granting 7-Eleven's motion for summary judgment; and b. denying the Plaintiffs' motions for summary judgment and class certification. The case arises from a putative class action brought by five 7-Eleven franchise store owners and operators, Dhananjay Patel, Safdar Hussain, Vatsal Chokshi, Dhaval Patel and Niral Patel. The Plaintiffs brought this putative class action on behalf of themselves and a putative class of similarly situated individuals in the Commonwealth of Massachusetts. The Plaintiffs allege that 7-Eleven (1) misclassified the franchisees as independent contractors instead of employees in violation of the Massachusetts Independent Contractor Law, Mass. Gen. L. c. 149, Section 148B (Count I) and (2) has violated the Massachusetts Wage Act, Mass. Gen. L. c. 149, Section 148 (Count II). They also initially alleged that 7-Eleven violated the Massachusetts Minimum Wage Law, Mass. Gen. L. c. 151, Sections 1, 7 (Count III) but voluntarily withdrew that claim in July, 2020. 7-Eleven is a Texas corporation with its principal place of business in Texas. It both sells convenience store franchises and operates its own corporate stores. There are approximately 160 franchisee-operated 7-Elevens in Massachusetts. The named Plaintiffs own and operate 7-Eleven franchises in the Commonwealth, where they reside. Two of the named Plaintiffs, Dhananjay Patel and Sadar Hussain, entered into franchise agreements directly with 7-Eleven. The remaining three named Plaintiffs entered into franchise agreements with 7-Eleven on behalf of separate corporate entities: Niral Patel on behalf of DP Milk Street, Inc., Dhaval Patel on behalf of DP Tremont Street, Inc., and Vatsal Chokski on behalf of both DP Jersey, Inc. and DPNEWTO1, Inc. These Plaintiffs receive their salaries from the respective corporate franchisees. To establish each franchise location, the Plaintiffs entered into franchise agreements with 7-Eleven. Dhananjay Patel and Sadar Hussain signed these agreements as individuals while Niral Patel, Dhaval Patel and Vatsal Chokski executed the agreements on behalf of their respective corporations. The Franchise Agreement, which is substantively identical in all cases, grants franchisees the license and right to operate a 7-Eleven store. It outlines in detail the obligations and covenants that both 7-Eleven and the franchisees agree to fulfill when an individual purchases a 7-Eleven franchise store. Section 2 of the Franchise Agreement, for example, provides that the franchisee agrees "to hold itself out to the public as an independent contractor." The franchisee promises to pay several fees to 7-Eleven both upon execution of the Franchise Agreement and throughout the franchisor-franchisee relationship. In Section 3, the franchisee agrees to pay 7-Eleven a franchise fee, initial gasoline fee and down payment. Section 10(a) outlines the "7-Eleven Charge", a fee 7-Eleven collects in exchange for providing the 7-Eleven License. In June, 2017, the Plaintiffs filed the class action in Massachusetts Superior Court for Middlesex County and in August 2017, the Defendant removed the case to this Court on diversity grounds. After the Court denied the Defendant's motion to dismiss, 7-Eleven counterclaimed for: (1) declaratory judgment that the Plaintiffs' franchise agreements are void (Counterclaim I); (2) breach of contract (Counterclaim II); and (3) contractual indemnity (Counterclaim III). Additionally, 7-Eleven filed third-party complaints against DPNEWTO1, Inc., DP Tremont Street, Inc., DP Milk Street, Inc. and DP Jersey, Inc., the four corporations on behalf of which a named individual plaintiff signed a Franchise Agreement with 7-Eleven. The Court denied the Plaintiffs' motion to dismiss the counterclaims and the third-party complaints in September 2019. In March, 2020, both parties filed cross motions for summary judgment and the Plaintiffs filed their motion for class certification. This Court allowed summary judgment in favor of 7-Eleven. The Plaintiffs appealed the summary judgment decision to the First Circuit Court of Appeals, which certified a question of law to the Massachusetts Supreme Judicial Court ("the SJC") in August 2021. The certified question was: Whether the three-prong test for independent contractor status set forth in Mass. Gen. Laws ch. 149 Section 148B applies to the relationship between a franchisor and its franchisee, where the franchisor must also comply with the FTC Franchise Rule? In March, 2022, the SJC answered the certified question, explaining that the Massachusetts ICL both applies to the franchisor-franchisee relationship and does not conflict with the federal franchisor disclosure requirements in the FTC Franchise Rule. Patel v. 7-Eleven, Inc., 183 N.E.3d 398 (Mass. 2022). The First Circuit Court of Appeals then vacated the decision of the Court and remanded the case for further proceedings. In July, 2022, the parties submitted supplemental briefing in support of their pending cross motions for summary judgment and the Plaintiffs' motion for class certification. The deadline for all remaining discovery is Dec. 30, 2022, and trial is scheduled to commence in late January 2023. 7-Eleven argues that the Massachusetts ICL does not apply because (1) the Plaintiffs cannot meet the threshold inquiry that franchisees perform services for 7-Eleven because it in fact provides services to the franchisees in exchange for payment and (2) 7-Eleven is not the direct employer of Dhaval Patel, Niral Patel or Vatsal Chokshi because their separate corporate entities signed Franchise Agreements with 7-Eleven and thus 7-Eleven is, at a minimum, not liable for any alleged misclassification as to those plaintiffs. Furthermore, 7-Eleven contends that the Plaintiffs have not incurred any Wage Act damages because the SJC deemed franchise fees legal in Patel v. 7-Eleven, Inc., 183 N.E.3d 398 (Mass. 2022). The Plaintiffs respond that (1) the Massachusetts ICL applies because plaintiffs do perform services for 7-Eleven, (2) the existence of the Plaintiffs' corporations does not render the Massachusetts ICL inapplicable and (3) the SJC opinion in Patel does not invalidate the Plaintiffs' Wage Act claim. As an initial matter, 7-Eleven again reiterates in its supplemental briefing that the Plaintiffs do not provide services to it, and thus cannot meet the threshold inquiry for the Massachusetts ICL to apply, while the Plaintiffs, not surprisingly, dispute that contention. Judge Gorton proceeds to analyze the record to determine if the Plaintiffs can satisfy the threshold inquiry. 7-Eleven continues to assert that the Plaintiff franchisees pay it, the franchisor, for the provision of services. It denies the suggestion that 7-Eleven pays the Plaintiffs for any services. Judge Gorton remains unconvinced that the Plaintiffs' contractual obligations outlined in the Franchise Agreement alone are enough to constitute services under the Massachusetts ICL. The record demonstrates that they are not paid for any services performed for 7-Eleven. In contrast, the franchisees pay franchise fees to 7-Eleven in exchange for a variety of services to support the franchisee. The Plaintiffs suggest that because the revenue flowing to 7-Eleven is directly dependent on their stores' revenue, they provide services to 7-Eleven. Judge Gorton finds that 7-Eleven's mutual economic interests with the Plaintiff franchisees in the stores' sales and revenue are inherent in legitimate franchise relationships. The Franchise Agreement sets forth a legitimate franchise relationship between 7-Eleven and the individual Plaintiffs who operate their own stores. The Massachusetts ICL does not prohibit those relationships, and thus, the mere fact that the parties share economic interest does not imply that plaintiffs perform services for 7-Eleven. Judge Gorton, thus, rejects the notion that the Plaintiffs perform services for 7-Eleven. The franchisees, who pay franchisor 7-Eleven for a plethora of services, are merely fulfilling their contractual obligations. He will, therefore, allows summary judgment in the Defendant's favor on both remaining counts. Having so concluded, Judge Gorton denies the Plaintiffs' motions for summary judgment on 7-Eleven's liability for misclassification and class certification. 7-Eleven's counterclaims and third-party claims for (1) declaratory judgment that the various franchise agreements are void; (2) breach of contract; and (3) contractual indemnity are not the subject of any summary judgment motion and, therefore, remain pending. The parties are directed to submit a joint status report on the Defendant's pending counterclaims against the Plaintiffs and third-party Defendants by Oct. 19, 2022. A full-text copy of the Court's Sept. 28, 2022 Memorandum & Order is available at https://tinyurl.com/22vcptzj from Leagle.com. A PLUS PERSONAL: Underpays Health Care Workers, Boudreaux Says -------------------------------------------------------------- EDWINA BOUDREAUX and NIKITA BOUDREAUX, individually and on behalf of others similarly situated v. A PLUS PERSONAL HOME CARE, INC. and VALENCIA F. MAGEE, Case No. 3:22-cv-00679-BAJ-SDJ (M.D. La., Sept. 27, 2022) is a collective action seeking to recover unpaid overtime compensation under the Fair Labor Standards Act. The Plaintiffs brought the sought individually and on behalf of all current or former healthcare workers employed by Defendants during the last three years who were not paid overtime for all hours worked in excess of 40 hours a week. Plaintiff Edwina Boudreaux was employed by the Defendant as a home healthcare worker from approximately June 2021 to August 2022. Plaintiff Nikita Boudreaux was employed by the Defendant as a home healthcare worker from approximately November 2020 to April 2021. A Plus Personal Home Care, Inc. is a home health care service provider in Gonzales, Louisiana.[BN] The Plaintiffs are represented by: Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925-5297 Facsimile: (225) 231-7000 E-mail: phil@bohrerbrady.com scott@bohrerbrady.com A.H.D. HOUSTON: Court Denies Nicholson's Bid for Prelim. Injunction ------------------------------------------------------------------- In the case, CHANEL E.M. NICHOLSON, Plaintiff v. A.H.D. HOUSTON, INC. d/b/a CENTERFOLDS, et al., Defendants, Civil Action No. 4:21-cv-02624 (S.D. Tex.), Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas, Houston Division, denies the Plaintiff's motion for preliminary injunction. Pending before the Court is the Plaintiff's motion for preliminary injunction against Defendants A.H.D. Houston, Inc., d/b/a Centerfolds, W.L. York, Inc., d/b/a Cover Girls, D WG FM, Inc. d/b/a Splendor, and Individual Defendants AR Davari and Hassan Davari. The Plaintiff's motion for preliminary injunction can basically be separated into two parts. First, she asks the Court to enjoin the Defendants from requiring all dancers from entering into agreements similar to the License and Access Agreement the Plaintiff signed with all three clubs. Second, she asks the Court to enjoin Defendants Centerfolds, Cover Girls, and Splendor from limiting the number of Black or Brown dancers on the premises at the same time. The Plaintiff filed this motion on Oct. 5, 2021. The Defendants responded and the Plaintiff replied. During the hearing on the motion to dismiss, the Court issued an Order deferring a ruling on the Plaintiff's motion for preliminary injunction until a further hearing took place. Since that initial hearing, however, the Plaintiff has submitted her Third Amended Complaint, which included much more information about her claims, and also the License and Access Agreements that the Plaintiff, and presumably other dancers, signed with Centerfolds, Splendor, and Cover Girls. The Defendants responded to the Third Amended Complaint and the Plaintiff replied. After reviewing these new filings, the Court does not believe a further hearing is necessary to rule on the Plaintiff's motion for preliminary injunction. In the Plaintiff's motion for preliminary injunction, she asks the Court to "enjoin all Defendant Clubs from requiring dancers to enter a License and Access Agreement" because multiple provisions within the agreements are allegedly unconscionable. Simply put, it is questionable whether the Plaintiff has standing to sue yjr Defendants for how they contract with others. Moreover, the Court has found that her contract claims against Centerfolds and Splendor were barred by limitations. The one remaining contract claim is against Cover Girls. This Court found the pleadings against Cover Girls, taken as true, supported the contention that her breach of contract claim would not be barred by the statute of limitations. Nevertheless, virtually all of the Plaintiff's allegations of unconscionability, involve provisions contained within the arbitration clause of the Cover Girl agreement. During the previous hearing, the parties, in open court, explicitly waived enforcement of the arbitration provisions. Given that the arbitration provisions are thus inapplicable here, Plaintiff's claims in this regard are moot. The only other provisions raised are the indemnity provisions that are clearly inapplicable. Therefore, the Plaintiff, as an individual, lacks the requisite standing necessary to challenge the provisions concerning the arbitration clauses contained in other contracts between other parties. Given these circumstances, Judge Hanen finds that the Plaintiff is, in effect, asking the Court to issue an advisory opinion on the conscionability and enforceability of provisions of contracts to which she is not a party and that are not at issue. Federal courts are expressly prohibited from issuing advisory opinions. Moreover, the Plaintiff wants the Court to enjoin the Defendants from requesting other dancers to sign the very contract by which she is now seeking relief. After reviewing the Plaintiff's Third Amended Complaint and the arguments supplied in her motion for preliminary injunction on the viability of her Section 1981 causes of action, Judge Hanen is unconvinced that the Plaintiff is likely to succeed on the merits or suffer irreparable harm if an injunction is not granted. First, the Plaintiff's Section 1981 claims against Centerfolds and Splendor prior to 2016 and at least some of her Section 1981 claims against Cover Girls are time barred and have been dismissed by the Court. Second, although timely, the Plaintiff's Section 1981 failure to hire claims against Centerfolds from 2021 was dismissed by the Court for failure to state a claim under Rule 12(b)(6). Third, the Plaintiff may argue that her claim against Splendor for a failure to hire in 2021 has a likelihood of success on the merits because it survived the Defendants' Fourth Motion to Dismiss. This claim, however, only survives because it is not barred by the statute of limitations and because Splendor did not move for dismissal under 12(b)(6) in the Defendants' Fourth Motion to Dismiss. Lastly, though the Plaintiff's Section 1981 claim against Cover Girls contends she was "barred" in late November 2017 survives the motion to dismiss on the statute of limitations grounds, it is unlikely that the Plaintiff will be successful in proving that race was the but-for cause of her being "barred." Judge Hanen also finds the Plaintiff's scant arguments concerning irreparable injury to be less than convincing. To the extent the Plaintiff has alleged that she has experienced or is presently experiencing damage, she still fails to allege that her injury is one where monetary damages would be an inadequate remedy at law. Since the Plaintiff has failed to establish that she herself is likely to suffer irreparable injury -- and that her alleged damages are completely incurable by monetary remedy -- she has fallen short of convincing the Court to grant her requested preliminary injunction. Judge Hanen, having found that the Plaintiff has failed to carry her burden, denies her motion for preliminary injunction. A full-text copy of the Court's Sept. 28, 2022 Order is available at https://tinyurl.com/37yasc4p from Leagle.com. AARP: Discloses Digital Users' Identities, Markels Suit Claims -------------------------------------------------------------- JAN MARKELS and ALLEN ZIMAN, individually and on behalf of all others similarly situated, Plaintiffs vs. AARP, Defendant, Case No. 3:22-cv-05499 (N.D. Cal., Sept. 27, 2022) is a consumer privacy class action against AARP for violating the Video Privacy Protection Act and state law by disclosing its digital users' identities and video-viewing preferences to technology company Meta Platforms, Inc. without proper consent. The complaint further asserts violation of the Video Privacy Protection Act, the Unfair Competition Law, the Consumer Legal Remedies Act, and the Rhode Island Deceptive Trade Practices Act. According to the complaint, AARP collects and shares users' personal information with Meta using a "Meta Pixel" or "Pixel." A Meta Pixel is a snippet of programming code that tracks users as they navigate through a website, including what searches they performed and which items they have clicked on or viewed. AARP discloses the user's Facebook Profile ID and viewing content to Meta together in a single, unencrypted transmission in violation of the VPPA. Because the user's Facebook Profile ID uniquely identifies an individual's Facebook account, Meta -- or any other person -- can use the Facebook Profile ID to quickly and easily locate, access, and view the user's corresponding Facebook profile. In other words, the Pixel allows Meta to know what video content one of its users viewed on AARP's website, says the suit. Plaintiffs Markels and Ziman are AARP members and subscribers. AARP is an interest group in the United States focusing on issues affecting those over the age of fifty.[BN] The Plaintiffs are represented by: Adam E. Polk, Esq. Simon Grille, Esq. Kimberly Macey, Esq. Jessica R. Cook, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 E-mail: apolk@girardsharp.com sgrille@girardsharp.com kmacey@girardsharp.com jcook@girardsharp.com ACADIA HEALTHCARE: Fleming Sues Over Unpaid Compensation -------------------------------------------------------- Kevin Fleming, individually, and on behalf of all other persons similarly situated v. ACADIA HEALTHCARE COMPANY, INC., a Delaware Corporation; CALIFORNIA TREATMENT SERVICES, LLC, a California Limited Liability Company; and DOES 1 through 10, inclusive, Case No. 8:22-cv-01791 (C.D. Cal., Sept. 29, 2022), is brought pursuant to the Fair Labor Standards Act seeking compensation for off-the-clock work, meal and rest period violations, penalties, injunctive, and other equitable relief, and reasonable attorneys' fees and costs. The Defendants consistently maintained and enforced against the Defendants' non-exempt employees, among others, in violation of the FLSA and California wage-and-hour laws. The Defendants had a consistent policy of requiring employees to work more than 8 hours in any given day and/or more than 40 hours in any given week, and of not paying them all overtime compensation pursuant to the FLSA and California Labor Code requirements. The Defendants had a consistent policy of requiring Class Members within the State of California to work at least 5 and 10 hours without lawful meal periods and failing to pay such employees 1 hour of pay at the employees' proper regular rate of compensation (including any bonuses and other wages impacting the regular ate of pay) for each workday the meal periods were not provided, as required by California wage-and-hour laws. The Defendants failed to maintain accurate records of Class Members' earned wages and work periods as evidenced by Defendants' failure to keep adequate records of when meal periods were taken or when they were paid, whether in the correct work week or otherwise, says the complaint. The Plaintiff was employed by Defendants as a non-exempt, hourly paid Counselor. Acadia is a Delaware Corporation in good standing and authorized to do business in California and in the United States.[BN] The Plaintiff is represented by: Richard E. Quintilone II, Esq. Jeffrey T. Green, Esq. QUINTILONE & ASSOCIATES 22974 El Toro Road, Suite 100 Lake Forest, CA 92630 Phone: (949) 458-9675 Facsimile: (949) 458-9679 Email: req@quintlaw.com jtg@quintlaw.com - and - Brian S. Kabateck, Esq. Jerusalem F. Beligan, Esq. Anastasia K. Mazzella, Esq. KABATECK LLP 633 West Fifth Street, Suite 3200 Los Angeles, CA 90071 Phone: (213) 217-5000 Email: bsk@kbklawyers.com jfb@kbklawyers.com am@kbklawyers.com ACKERCAMPS.COM LLC: K.V. Suit Removed to S.D. Illinois ------------------------------------------------------ The case styled as K.V., a minor, by and through her Guardian, Lynae Vahle, and Lynae Vahle, individually, and on behalf of all others similarly situated v. Ackercamps.com LLC, Case No. 2022LA108 was removed from the Circuit Court of Williamson County, to the U.S. District Court for the Southern District of Illinois on Sept. 29, 2022. The District Court Clerk assigned Case No. 3:22-cv-02256 to the proceeding. The nature of suit is stated as Other Contract. Ackercamps.com, LLC develops specialty software. The Company offers camp management, administration, and scheduling solutions through software.[BN] The Plaintiffs appears pro se. AETHON ENERGY: Fay FLSA Class Suit Transferred to N.D. Texas ------------------------------------------------------------ The case styled JAMES FAY, individually and on behalf of others similarly situated v. AETHON ENERGY OPERATING, LLC, Case No. 1:22-cv-00959, was removed from the U.S. District Court for the District of Delaware to the U.S. District Court for the Northern District of Texas, Dallas, on Sept. 27, 2022. The Clerk of Court for the Northern District of Texas assigned Case No. 3:22-cv-02138-C-BK to the proceeding. The case is brought over Defendant's failure to pay Plaintiff proper overtime wages as required by the Fair Labor Standards Act. Aethon Energy Operating, LLC is an oil & gas management company headquartered in Dallas, Texas.[BN] The Plaintiff is represented by: Sue L. Robinson, Esq. Brian E. Farnan, Esq. Michael J. Farnan, Esq. FARNAN LLP 919 North Market Street12th Floor Wilmington, DE 19801 Telephone: (302) 777-0300 Facsimile: (302) 777-0301 E-mail: srobinson@farnanlaw.com bfarnan@farnanlaw.com - and - Andrew Dunlap, Esq. Michael A. Josephson, Esq. Taylor Shelton Montgomery, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: adunlap@mybackwages.com mjosephson@mybackwages.com tmontgomery@mbwages.com The Defendant is represented by: Jody Barillare, Esq. MORGAN LEWIS & BOCKIUS LLP 1201 N. Market Street, Ste 2201 Wilmington, DE 19801 Telephone: (302) 574-7294 E-mail: jody.barillare@morganlewis.com - and - Ian A Wright, Esq. MORGAN LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 Telephone: (713) 890-5000 Facsimile: (713) 890-5001 E-mail: ian.wright@morganlewis.com - and - Michael Jonathan Puma, Esq. MORGAN LEWIS AND BOCKIUS LLP (NY) 101 Park Avenue New York, NY 10178 Telephone: (212) 309-6000 Facsimile: (212) 309-6273 E-mail: mpuma@morganlewis.com AFFIRM HOLDINGS: Faces Toole Shareholder Suit in California Court ----------------------------------------------------------------- Affirm Holdings, Inc. disclosed in its Form 10-K Report for the year ended June 30, 2022, filed with the Securities and Exchange Commission on August 26, 2022, that on February 28, 2022, Jeffrey Toole filed a putative class action against Affirm and Max Levchin in the U.S. District Court for the Northern District of California. The Toole complaint alleges that Affirm violated Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder by issuing and then subsequently deleting a tweet from its official Twitter account on February 10, 2022, which omitted full details of Affirm's second quarter fiscal 2022 financial results. Toole seeks class certification, unspecified compensatory and punitive damages, and costs and expenses. On June 9, 2022, the Court appointed Eric Nunez as lead plaintiff and Robbins Geller Rudman & Dowd LLP as class counsel. Affirm Holdings, Inc. provides financial services based in California. AGNES SCOTT COLLEGE: Senior Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Agnes Scott College, Inc. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Agnes Scott College, Inc., Case No. 1:22-cv-08392 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Agnes Scott College -- https://www.agnesscott.edu/ -- is a private women's college in metropolitan Atlanta, Georgia also offering coed graduate programs.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal AGRANA FRUIT: Miller Wins Conditional Class Certification Bid ------------------------------------------------------------- In the class action lawsuit captioned as GARY MILLER, et al., v. Agrana Fruit US, Inc., Case No. 1:21-cv-01919-BMB (N.D. Ohio), the Court entered an order conditionally certifying the following class: "All current and former hourly, non-exempt employees of Agrana Fruit US, Inc. whose job duties involved contact with food, food-contact surfaces, or food packaging materials, and were required to change at work into sanitary clothing and equipment (e.g., sanitary uniform, sanitary boots, sanitary glasses, sanitary gloves, and hair net), and worked at least 40 hours in at least one workweek, from October 11, 2018, to present." The Court said, "The Plaintiffs have satisfied their "modest" burden for conditional certification. Along with their sworn declarations, the Plaintiffs have submitted sworn declarations from six other employees from various Agrana facilities establishing: (1) Agrana employees who came in contact with food were "similarly situated," as they were "uniformly" required by Agrana to don and doff similar protective gear; (2) Agrana required this donning and doffing to be performed before and after the employees clocked in and out of work each day; and (3) because Agrana's donning and doffing policy, these employees did not receive credit for all "compensable" time worked and, therefore, faced similar FLSA overtime violations. Such evidence is more than enough for conditional class certification. The Plaintiffs seek to conditionally certify a class to recover unpaid overtime stemming from Agrana's food and sterilization policies under the Fair Labor Standards Act (FLSA). Representative Plaintiff Gary Miller worked at Agrana's facility located in Botkins, Ohio as a "fruit prep lead" from 2003 to 2020. Representative Plaintiff Donovan Richardson worked at Agrana's Lysander, New York facility from September 2020 until March 2021. Agrana owns and operates fruit processing plants in Ohio, New York, Tennessee, and Texas. A copy of the Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3M4xMkw at no extra charge.[CC] AMERICAN UNIVERSITY: Senior Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against American University. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. American University, Case No. 1:22-cv-08394 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. American University -- https://www.american.edu/ -- is a leader among Washington DC universities in global education.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal ANZA MANAGEMENT: Melara Sues Over to Recover Compensations ---------------------------------------------------------- Alexa Melara, on behalf of herself and others similarly situated and aggrieved v. ANZA MANAGEMENT COMPANY, a California corporation; and Does 1-100, inclusive, Case No. 22STCV32206 (Cal. Super. Ct., Sept. 30, 2022), is brought pursuant to California's Private Attorney General Act to recover civil penalties (75% payable to the Labor and Workforce Development Agency and 25% payable to Aggrieved Employees) for Defendants' violations of the California Labor Code. The Defendants failed to compensate the Plaintiff and Aggrieved Employees for all hours worked, resulting in the underpayment of minimum and overtime wages. The Defendants failed to compensate Plaintiff and Aggrieved Employees for all hours worked by virtue of, including but not limited to, the Defendants' automatic deduction policies and practices for meal periods, failure to relieve employees of all duties and employer control during unpaid meal periods or otherwise unlawful meal period practices, time-rounding policies and practices, payment according to scheduled hours worked instead of actual time worked, and mandated pre-shift/post-shit and/or other mandated off-the-clock work policies and practices, says the complaint. The Plaintiff worked for the Defendants in the State of California as a non-exempt employee during the relevant period. ANZA MANAGEMENT COMPANY, is a California corporation that was authorized to do business within the State of California.[BN] The Plaintiff is represented by: Michael R. Crosner, Esq. Zachary M. Crosner, Esq. Jamie Serb, Esq. Jonathan Stilz, Esq. CROSNER LEGAL, P.C. 433 N. Camden Dr., Suite 400 Beverly Hills, CA 90210 Phone: (310) 496-5818 Fax: (310) 510-6429 Email: mike@crosnerlegal.com zach@crosnerlegal.com jamie@crosnerlegal.com jon@crosnerlegal.com ASSOCIATED CREDIT: Rolnitzky Files FDCPA Suit in S.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against Associated Credit Services, Inc. The case is styled as Joel Rolnitzky, individually and on behalf of all others similarly situated v. Associated Credit Services, Inc., Case No. 7:22-cv-08389 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Associated Credit Service, Inc. -- https://www.acsrecovery.com/ -- is a collection agency based in Spokane, Washington.[BN] The Plaintiff is represented by: Robert Thomas Yusko, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: ryusko@steinsakslegal.com BED BATH & BEYOND: Faces Si Shareholder Suit in DC --------------------------------------------------- Bed Bath & Beyond Inc. disclosed in its Form 10-Q Report for the current report dated August 31, 2022, filed with the Securities and Exchange Commission on August 31, 2022, that a putative securities class action and shareholder derivative action was filed on August 23, 2022, against the company, Gustavo Arnal (the company's Chief Financial Officer), and certain third parties in the United States District Court for the District of Columbia. The case, which is captioned "Si v. Bed Bath & Beyond Corp., et al.," Case No. 2:22-cv-02541, asserts claims of breach of fiduciary duty, negligent misrepresentation, and violations of Sections 10(b) and 20(a) of the Exchange Act on behalf of a putative class of purchasers of our securities from March 25, 2022, through August 18, 2022. The complaint alleges that certain of the disclosures about the company's revenue and proposed divestments, as well as other disclosures made by certain of its investors about their holdings, during the putative class period, were materially false or misleading. Bed Bath & Beyond Inc. is a retail store company based in New Jersey. BETTER BABY INC: Velazquez Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Better Baby, Inc. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Better Baby, Inc., Case No. 1:22-cv-08364 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Better Baby Boutique -- https://www.betterbabyboutique.com/ -- is a family owned and operated baby clothing store offering baby girl shirts, baby girl rompers, baby boy pants, and so much more.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com BLUE RIDGE ROCK: Sands Sues Over Unpaid Minimum, Overtime Wages --------------------------------------------------------------- Brandy Sands, Larisa LaCorte, Lyndsay Holt, Heather Carlton, Shanna Reyes, Josh Arkwright, James Jeff Peters, Daniel Vercellino, Reah White, Lorie Rivero, Sara Daniel, Sarah Bailey, Jessica Martin, Michell Martin, II, and Sierra Lewis, on behalf of themselves and all others similarly situated v. BLUE RIDGE ROCK FESTIVAL, LLC and JONATHAN SLYE, Case No. 6:22-cv-00056-NKM (W.D. Va., Sept. 30, 2022), is brought against the Defendants' intentional, knowing, and willful failure to pay the Plaintiffs required Minimum Wage and Overtime Compensation for employment duties performed by the Plaintiffs at the Festival in 2021 and/or 2022, as required by the Federal Fair Labor Standards Act, the Virginia Wage Payment Act, the Virginia Minimum Wage Act. The Defendants perpetrated an unlawful payroll policy designed to withhold and deny the Plaintiffs wages and earned tips and/or gratuities as required by the FLSA, VWPA, VMWA, and/or as otherwise equitably promised or owed. During the Festival in 2021 and/or 2022, the Defendants had actual knowledge of all hours the Plaintiffs worked at the Festival in 2021 and/or 2022, and suffered or permitted the Plaintiffs to perform between 50 to 75 or more hours of compensable employment duties for the Defendants' primary and substantial benefit. At no time during the relevant period did the Defendants pay the Plaintiffs or the Class/Collective Members for overtime hours worked over 40 per week at an hourly rate at least equal to the FLSA required overtime rate, says the complaint. The Plaintiffs were each employed by the Defendants as bartenders and/or bar backs and/or performing similar bar and/or service related duties for Defendant's primary benefit at Defendants' 2021 and/or 2022 Blue Ridge Rock Festival. The Defendants owned, administered, and operated the Festival in 2021 and 2022.[BN] The Plaintiff is represented by: Gregg C. Greenberg, Esq. ZIPIN, AMSTER & GREENBERG, LLC 8757 Georgia Avenue, Suite 400 Silver Spring, MD 20910 Phone: (301) 587-9373 Email: GGreenberg@ZAGFirm.com BLVD RESIDENTIAL: Tavera Files Suit in Cal. Super. Ct. ------------------------------------------------------ A class action lawsuit has been filed against Blvd Residential Inc., et al. The case is styled as Amanda Marlene Tavera, on behalf of herself and all others similarly situated v. Blvd Residential Inc., Does 1–100, Case No. 34-2022-00327501-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Sept. 29, 2022). The case type is stated as "Other Employment – Civil Unlimited." BLVD Residential -- https://www.blvdresidential.com/ -- is a Northern California based company focused on multifamily property management and investment.[BN] The Plaintiff is represented by: William Zev Abramson, Esq. ABRAMSON LABOR GROUP ("ALG") 11846 Ventura Blvd. Studio City, CA 91604 Phone: 213-493-6300 Fax: 213-382-4083 Email: wza@abramsonlabor.com BRADLEY UNIVERSITY: Senior Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Bradley University. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Bradley University, Case No. 1:22-cv-08395 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bradley University -- https://www.bradley.edu/ -- is a private university in Peoria, Illinois.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal BRIDGETON LANDFILL: Clayborne & Firm Disqualified From Kitchin Suit ------------------------------------------------------------------- In the case, JOHN C. KITCHIN, JR., et al., on behalf of themselves and all others similarly situated, Plaintiffs v. BRIDGETON LANDFILL, LLC, et al., Defendants; BRIDGETON LANDFILL, LLC, Third-Party Plaintiff v. COTTER CORPORATION, N.S.L., Third-Party Defendant, Case No. 4:18 CV 672 CDP (E.D. Mo.), Judge Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri, Eastern Division, grants Defendants Bridgeton Landfill, LLC and Republic Services, Inc.'s motion to disqualify attorney James F. Clayborne, Jr., and his law firm of Clayborne & Wagner, LLP, in their representation of the Plaintiffs. Plaintiffs John C. Kitchin, Jr., North West Auto Body C., and Mary Menke bring this putative class action seeking damages and injunctive relief for radioactive contamination of their respective properties allegedly caused by neighboring West Lake Landfill, located in North St. Louis County, Missouri. The Plaintiffs assert that their property has been damaged by soil, dust, and air contamination from improper generation, handling, storage, and disposal of radioactive materials by four corporate defendants who are owners and operators of the Landfill. Bridgeton Landfill, as an owner, and Republic Services, as an operator, are among the Defendants. More than 46,000 tons of radioactive wastes at the center of this litigation were mixed with soil and deposited at West Lake Landfill in 1973 for use as daily cover for the Landfill. The Plaintiffs allege that about 15 acres of the Landfill are filled with radioactive wastes at a depth of up to 20 feet, and that the radioactive material has contaminated soil, water, and air, resulting in the contamination of surrounding communities where their properties are located. They also allege that they are at increased risk of radioactive exposure by, inter alia, the Defendants' installation of an inadequate leachate collection system that resulted in spills, releases, and leaks that contributed to the groundwater and surface water contamination; and failure to control a subsurface fire at the Landfill, which could result in increased leachate production from large amounts of steam that could further move contaminants and radioactive materials into the groundwater. The Plaintiffs filed this action in State court in April 2018, after which the Defendants removed the case to the Court invoking several bases of Federal subject-matter jurisdiction. The case is presently stayed pending the United States Supreme Court's decision on a petition for writ of certiorari filed in a separate but related case. In 2013, attorney Clayborne represented Defendants Bridgeton Landfill and Republic Services for the purpose of facilitating negotiations between them and a water treatment facility in Illinois, the Illinois Environmental Protection Agency, and the City of Sauget, Illinois, relating to the Defendants' desired resumption of its business relationship with the water treatment facility. The facility had earlier ceased accepting leachate discharge from the Bridgeton Landfill because of alleged excessive hazardous waste contained therein. During the course of this representation, the Defendants shared confidential information and documents with Clayborne to assist in his efforts to arrange negotiations between the parties. On June 1, 2022, Clayborne entered his appearance in this action on behalf of the Plaintiffs. The Plaintiffs aver that they retained Clayborne to "participate on their behalf in any negotiations that can be scheduled" while the action is stayed. Defendants Bridgeton Landfill and Republic Services move to disqualify Clayborne, arguing that his current representation is substantially related to the matter on which he represented defendants in 2013 wherefrom he gained "knowledge of the Defendants' history with the regulatory agencies and negotiation strategies surrounding leachate disposal issues at the landfill" and obtained relevant, confidential information regarding inter alia "the strategy to resolve issues related to the leachate issues that the landfill was facing during the very period that the Plaintiffs allege that leachate volume and leachate management contributed to their harm." They also seek to impute Clayborne's disqualifying conflict to his law firm. Because Clayborne disputed the Defendants' factual averments regarding the extent of his prior representation, could neither confirm nor deny what documents he received during that representation, and could not recall the extent to which he reviewed such documents, Judge Perry ordered the Defendants to submit to the Court for in camera review the relevant privileged documents and communications shared with Clayborne during his prior representation. Judge Perry explains that the Court has adopted the Missouri Supreme Court's Rules of Professional Conduct. Two rules are relevant in the case. Rule 4-1.9(a) governs the duties an attorney owes to former clients: A lawyer who has formerly represented a client in a matter will not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. Rule 4-1.10(a) governs the imputation of an attorney's conflict to his law firm: While lawyers are associated in a firm, none of them will knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 4-1.7 or 4-1.9. Judge Perry holds that the Plaintiffs raise no argument against disqualifying Clayborne's law firm under Rule 4-1.10(a) in the event she determines that Rule 4-1.9(a) bars Clayborne from representing them in the action. Accordingly, she focuses on Rule 4-1.9(a). To establish a conflict of interest under Rule 4-1.9(a), a movant must prove: "(1) the attorney had a former attorney-client relationship with the movant; (2) the interests of the attorney's current client are materially adverse to the movant's interests; and (3) the current representation involves the same or a substantially related matter as the attorney's former representation of the movant." There is no dispute with respect to the first and second elements. Clayborne had an attorney-client relationship with Defendants Bridgeton Landfill and Republic Services in 2013, and the Plaintiffs' interests in the action are materially adverse to both Bridgeton Landfill's and Republic Services' interests. Regarding the third element, Missouri courts have adopted a non-exhaustive list of six factors to consider in determining whether a lawyer's current representation is substantially related to the former representation: (1) the case involved the same client and the matters or transactions in question are relatively interconnected or reveal the client's pattern of conduct; (2) the lawyer had interviewed a witness who was key in both cases; (3) the lawyer's knowledge of a former client's negotiation strategies was relevant; (4) the commonality of witnesses, legal theories, business practices of the client, and location of the client were significant; (5) a common subject matter, issues and causes of action existed; and (6) information existed on the former client's ability to satisfy debts and its possible defense and negotiation strategies. In some cases, one factor, if significant enough, can establish that the subsequent case is substantially related. As set out, Defendants Bridgeton Landfill and Republic Services retained Clayborne in 2013 for the primary purpose of facilitating negotiations with private and public entities to reestablish a business relationship that went awry because of the presence of hazardous material in leachate discharge from the Defendants' site. During the course of this representation, the Defendants shared confidential information with Clayborne, including the motivations behind their specific negotiation tactics and strategies -- especially the "why" of their desired result, the "how" to get there, and the particular circumstances of their leachate discharge processes that drove their strategies. They asked and encouraged Clayborne to engage in certain communications and to convey certain information to the respective entities with whom they were negotiating, and Clayborne offered strategies to assist in the effort to achieve the Defendants' desired result. As to Clayborne's current representation, the Plaintiffs admit in response to the Defendants' motion to disqualify that they retained Clayborne to participate on their behalf in any negotiations that can be scheduled. While the 2013 representation did not involve the same transactions, witnesses, or causes of action as in this litigation, it nevertheless exposed Clayborne to and brought him into the Defendants' intimate negotiation strategies based in part upon the Landfill's leachate disposal systems in place at the time. Given that that was the central purpose of his representing defendants then and is the central purpose of his representing their adversaries now, the relationship between the two representations is significant enough for me to find that the nature and purpose of Clayborne's current representation of the Plaintiffs is substantially related to his 2013 representation of the Defendants. Whether Clayborne specifically remembers the documents or confidences disclosed is of no instance. Avoiding the risk of even inadvertent disclosure of confidential information helps to ensure the integrity of these judicial proceedings and maintain public confidence in the legal profession. Judge Perry will therefore disqualify Clayborne from representing the Plaintiffs. Given that Clayborne is prohibited from representing the Plaintiffs under Rule 4-1.9(a), a literal reading of Rule 4-1.10(a) precludes any lawyer associated in his law firm from representing the Plaintiffs as well. The "premise" of Rule 4-1.10(a) is "that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client or that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated." As noted, the Plaintiffs raise no argument disputing application of Rule 4-1.10(a), and there is nothing before the Court persuading me that the strictures of the Rule should not apply. Judge Perry will therefore disqualify the law firm of Clayborne & Wagner, LLP, from representing the Plaintiffs. Judge Perry does not lightly enter this decision to partially deprive the Plaintiffs of their choice of counsel. But to maintain public confidence in the legal profession and to ensure the integrity of judicial proceedings, she must grant the Defendants' motion to disqualify. In making this determination, she has considered that no less than nine other attorneys from at least five other law firms represent the Plaintiffs; many have done so from the case's inception. Moreover, the case is presently stayed. If the Plaintiffs wish to obtain new counsel for the special purpose of engaging in negotiations as they have represented, the present stay in the proceedings should allow them sufficient time to do so. Accordingly, Judge Perry grants the Defendants' Motion to Disqualify. The Clerk of Court will make the appropriate entry on the docket of the case removing attorney James F. Clayborne, Jr., as counsel of record for the Plaintiffs. A full-text copy of the Court's Sept. 28, 2022 Memorandum & Order is available at https://tinyurl.com/5t2fd479 from Leagle.com. BRINKER INT'L: Faces Class Suit Over Customer Payment Card Info --------------------------------------------------------------- Brinker International, Inc. disclosed in its Form 10-K Report for the fiscal year ended June 29, 2022, filed with the Securities and Exchange Commission on August 26, 2022, that the company was named as a defendant in a putative class action lawsuit in the United States District Court for the Middle District of Florida. In the litigation, plaintiffs assert various claims at the company's Chili's restaurants involving customer payment card information and seek monetary damages in excess of $5.0 million, injunctive and declaratory relief, and attorney's fees and costs. The oral argument of the company's appeal of the district court's class certification order was held before the Eleventh Circuit Court of Appeals on June 8, 2022, in Jacksonville, Florida. Brinker International, Inc. owns, develops, operates, and franchises the Chili's(R) Grill & Bar (Chili's) and Maggiano's Little Italy(R) (Maggiano's) restaurant brands based in Texas. BROOK MEAT: Asks More Time to Respond to Class Certification Bid ---------------------------------------------------------------- In the class action lawsuit captioned as Moreno, et al., v. Brook Meat & Produce Corp., et al., Case No. 1:22-cv-04070-JPO (S.D.N.Y.), the Defendants Brook Meat & Produce Corp., 207 Meat Corp., 1331 Meat & Produce Corp., and King Polo, Inc. ask the Court to enter an order granting a 30-day extension to oppose the Plaintiffs' motion for conditional collective certification -- from October 3, 2022 to November 2, 2022. This is the first request for an extension of this deadline. The Plaintiffs' counsel consents to a 14-day extension, not 30, but a 30-day extension is necessary to allow us to fully investigate the Plaintiffs' grounds for the motion and to prepare a complete response, the Defendants say. Moreover, the Plaintiffs served discovery demands upon all Defendants the same day they filed their motion. They would be prejudiced in their efforts to appropriately respond to Plaintiffs' motion if required to simultaneously address both the motion and Plaintiffs' discovery demands within a short time frame, the Defednants add. A copy of the Defendants' motion dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3E8wxPf at no extra charge.[CC] The Defendants are represented by Leo Dorfman, Esq. SOKOLOFF STERN LLP 179 Westbury Avenue Carle Place, NY 11514 Telephone: (516) 334 4500 Facsimile: (516) 224 4501 E-mail: LDORFMAN@SOKOLOFFSTERN.COM BURNTWOOD TAVERN: Fails to Pay Minimum Wages, Keenan Says --------------------------------------------------------- ALEXIS KEENAN, on behalf of herself and all others similarly situated, Plaintiff v. BURNTWOOD TAVERN HOLDINGS, LLC D/B/A BURNTWOOD TAVERN, Defendant, Case No. 1:22-cv-01733 (N.D. Ohio, Sept. 27, 2022) arises from the Defendant's violations of the Fair Labor Standards Act's tip credit provision, subsequent underpayment of their employees at the federally mandated minimum wage rate, as well as violations of the Ohio Minimum Fair Wage Standards Act for Defendant's failure to pay Plaintiff and all similarly situated workers their earned minimum wages. Plaintiff Keenan worked for the Defendant at the Burntwood Tavern location in Rocky River, Ohio as a server from June 2016 to October 2019. Burntwood Tavern Holdings, LLC operates a chain of restaurants under the trade name "Burntwood Tavern."[BN] The Plaintiff is represented by: Lori M. Griffin, Esq. Anthony J. Lazzaro, Esq. Alanna Klein Fischer, Esq. Matthew S. Grimsley, Esq. THE LAZZARO LAW FIRM, LLC The Heritage Building, Suite 250 34555 Chagrin Boulevard Moreland Hills, OH 44022 Telephone: (216) 696-5000 Facsimile: (216) 696-7005 E-mail: lori@lazzarolawfirm.com anthony@lazzarolawfirm.com alanna@lazzarolawfirm.com matthew@lazzarolawfirm.com CARO BAMBINO: Velazquez Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Caro Bambino, LLC. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Caro Bambino, LLC, Case No. 1:22-cv-08380 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Caro Bambino -- https://carobambino.com/ -- is a unique baby boutique that carries a distinct selection of tasteful baby products, including many organic and sustainably made baby gifts.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com CAROLINA MOTOR: Settlement Class in Johnson Initially Certified --------------------------------------------------------------- In the class action lawsuit captioned as WES JOHNSON, and TAMEKIA BOTTOMS, individually and on behalf of all other similarly situated, The AAA Carolina Savings & Investment Plan and The Auto Club Group Tax Deferred Savings Plan, v. CAROLINA MOTOR CLUB, INC. d/b/a AAA Carolinas; and THE AUTO CLUB GROUP, Case No. 3:21-cv-319-MOC-DCK (W.D.N.C.), the Hon. Judge Max O. Cogburn entered an order preliminarily approving class action settlement, approving procedure and form of notice, designating class counsel and scheduling final approval hearing. -- For Settlement purposes, the Court preliminarily certifies the following Settlement Class: "All members of the Plan as the Plan was defined above between July 6, 2014 until the date the Court grants preliminary approval." -- Named Plaintiffs Wes Johnson and Tamika Bottoms are appointed as class representatives. -- Fitzgerald, Hanna & Sullivan, PLLC is appointed as class counsel for the Settlement Class. -- The Court approves the proposed Notice of Settlement and the method of giving direct notice to the Settlement Class members by U.S. mail. Carolina Motor provides car services. The Company offers roadside assistances, towing services, sells cars, and books travel. A copy of the Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3LYEBE9 at no extra charge.[CC] CARVANA CO: RCL Sues Over Decline in Securities Market Value ------------------------------------------------------------ Rodeo Collection LTD., individually and on behalf of all others similarly situated v. CARVANA CO., ERNEST GARCIA III, and MARK JENKINS, Case No. 2:22-cv-05778 (D.N.J., Sept. 29, 2022), is brought on behalf of persons and entities that purchased or otherwise acquired Carvana securities between May 6, 2020 and June 24, 2022, inclusive (the "Class Period"), pursuing claims against the Defendants under the Securities Exchange Act of 1934, as a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities. On August 10, 2021, media reported that Carvana's dealer license was suspended for the Raleigh, North Carolina location for six months because "Carvana failed to deliver titles to the DMV, sold motor vehicles without a state inspection, and issued out-of-state temporary tags and plates for vehicles sold to customers in North Carolina." On this news, the Company's stock fell $9.40, or 2.5%, to close at $360.70 per share on August 11, 2021, on unusually heavy trading volume. On October 22, 2021, before the market opened, The Wall Street Journal published an article entitled "Carvana Faces Government Scrutiny and Fines Following Consumer Complaints," revealing that "at least four states have disciplined Carvana or are investigating the company for violating vehicle-sales rules." On this news, the Company's stock fell $9.53, or 3.15%, over two consecutive trading sessions to close at $292.23 per share on October 25, 2021, on unusually heavy trading volume. On June 24, 2022, after the market closed, Barron's published an article entitled "Carvana Sought to Disrupt Auto Sales. It Delivered Undriveable Cars," which stated that "in its haste to seize market share from competitors, Carvana was selling cars faster than it could get them registered to their new owners." By early 2021, Carvana increased staffing and "would use its dealer licenses across the country to issue temporary license plates from multiple states to customers" to deal with the delayed registrations. Moreover, "Carvana's sense of urgency surrounding the title-transfer issues may be most apparent in its formation of the undriveable-car task force in May," which reviewed a "'giant spreadsheet' of cars that Carvana had been keeping on the road with temporary plates that were now expiring" On this news, the Company's stock fell $6.78, or 21%, over two consecutive trading sessions to close at $24.74 per share on June 28, 2022, on unusually heavy trading volume. The Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: that Carvana faced ongoing issues with documentation, registration, and title for many of its vehicles across the country; that, as a result, Carvana was issuing frequent temporary plates; that the suspension of Carvana's license in North Carolina was not a "relatively unusual" action and, in fact, the Company was under investigation by many states for violating laws and regulations regarding proper documentation and inspections; that, as a result of the foregoing, there was a substantial risk to Carvana's ability to continue business and/or expand its business in existing markets; that Carvana was facing imminent regulatory action including license suspension in several states; that, as a result of the foregoing, Carvana faced increased oversight in certain states, including Illinois; and 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. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff purchased Carvana securities during the Class Period. Carvana operates an e-commerce platform for buying and selling used cars.[BN] The Plaintiff is represented by: James E. Cecchi, Esq. Donald A. Ecklund, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Phone: (973) 994-1700 - and - Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Phone: (310) 201-9150 - and - Frank R. Cruz, Esq. THE LAW OFFICES OF FRANK R. CRUZ 1999 Avenue of the Stars, Suite 1100 Los Angeles, CA 90067 Phone: (310) 914-5007 CARVANA LLC: Glover Sues Over Failure to Pay Regular, Overtime Wage ------------------------------------------------------------------- Julie Glover, on behalf of herself and all those similarly situated v. Carvana, LLC, an Arizona limited liability company, Case No. 2:22-cv-01667-MHB (D. Ariz., Sept. 29, 2022), is brought against the Defendant for its failure to pay her all wages due, including regular time and overtime, in violation of the Fair Labor Standards Act and Arizona wage law. The Defendant had and continues to have a consistent policy and practice of suffering or permitting employees who worked as Verification Advocates, including the Plaintiff, to work more than 40 hours per week, without paying them proper overtime compensation and wages due as required by federal and state wage and hour laws. The Plaintiff seeks to recover unpaid overtime compensation, including interest there on, statutory penalties, reasonable attorneys' fees, and litigation costs on behalf of herself and all similarly situated current and former Verification Advocates, says the complaint. The Plaintiff was a full-time, non-exempt employee of Carvana employed as a Verification Advocate in Arizona from January 25, 2021 until August 9, 2022. Carvana is a national business that provides online car-buying for customers throughout the United States.[BN] The Plaintiff is represented by: Ty D. Frankel, Esq. YEN PILCH ROBAINA & KRESIN PLC 6017 N. 15th Street Phoenix, AZ 85014 Phone: (602) 682-6450 Email: TDF@yprklaw.com - and - Patricia N. Syverson, Esq. YEN PILCH ROBAINA & KRESIN PLC 9655 Granite Ridge Drive, Suite 200 San Diego, CA 92123 Phone: (619) 756-7748 Email: PNS@yprklaw.com CCA AND B LLC: Toro Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against CCA and B, LLC. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. CCA and B, LLC, Case No. 1:22-cv-08329 (S.D.N.Y., Sept. 29, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. CCA and B, LLC doing business as The Lumistella Company -- https://lumistella.com/ -- engages in consumer products, and entertainment services for family moments at Christmastime.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com CDR MAGUIRE: Henderson Sues to Recover Unpaid Overtime Wages ------------------------------------------------------------ Brandolyn Henderson, individually and on behalf of all others similarly situated v. CDR MAGUIRE, INC. and CDR HEALTH CARE, INC., Case No. 1:22-cv-23163-XXXX (S.D. Fla., Sept. 29, 2022), is brought to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. The Defendants failed to pay the Plaintiff, and other hourly workers, overtime as required by federal law. Instead, the Defendants paid the Plaintiff, and workers like her, the same hourly rate, even when they worked more than 40 hours in a workweek. For that pay period, the Defendants paid the Plaintiff at her hourly rate of $50 per hour for all 51.5 hours. Thus, rather than receiving time-and-a-half as required by the FLSA for all hours over 40 in a workweek, the Plaintiff only received "straight-time" pay for her overtime hours worked. This "straight-time-for-overtime" payment scheme violates the FLSA. The Defendants was aware of the overtime requirements of the FLSA. The Defendants nonetheless failed to pay certain hourly employees, such as Henderson, overtime for all hours worked over 40 in a workweek. The Defendants' failure to pay overtime to these hourly workers was, and is, a willful violation of the FLSA, says the complaint. The Plaintiff was an hourly-paid employee of CDR who worked for CDR from October 2021 to March 2021. CDR provides engineering consulting services, emergency management solutions, and disaster health and medical services.[BN] The Plaintiff is represented by: Andrew R. Frischch MORGAN & MORGAN, P.A. 81511 Peters Road, 4th Floor Plantation, FL 33324 Phone: (954) WORKERS Facsimile: (954) 327-3013 Email: afrisch@forthepeople.com - and - Matthew S. Parmet, Esq. PARMET PC 3 Riverway, Ste. 1910 Houston, TX 77056 Phone: 713 999 5228 Email: matt@parmet.law CENTURYLINK INCORPORATED: Court Lifts Stay of Bultemeyer Suit ------------------------------------------------------------- In the class action lawsuit captioned as Lydia Bultemeyer v. CenturyLink Incorporated, Case No. 2:14-cv-02530-SPL (D. Ariz.), the Hon. Judge Steven P. Logan entered an order lifting the stay following the Ninth Circuit's denial of Bultmeyer's petition on September 23, 2022. On April 27, 2022, the Court stayed this action pending the Ninth Circuit's determination of her petition for interlocutory appeal under Rule 23(f). The Court further ordered that the Plaintiff may file a renewed motion for class certification resolving the issues stated in the April 7, 2022 Order no later than October 17, 2022. A copy of the Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3rnZm2r at no extra charge.[CC] CITIZENS BANK: Court Grants Bid to Dismiss Conti Class Suit ----------------------------------------------------------- In the case, JOHN CONTI, on behalf of himself and all others similarly situated, Plaintiff v. CITIZENS BANK, N.A. and DOES 1 through 10, inclusive, Defendants, C.A. No. 1:21-CV-00296-MSM-PAS (D.R.I.), Judge Mary S. McElroy of the U.S. District Court for the District of Rhode Island grants Citizens' Motion to Dismiss. The matter raises the question of whether a national bank -- Citizens -- is subject to a state statute that requires a lender's payment of interest on a mortgage escrow account or whether, as to national banks, the state statute is preempted by the National Bank Act ("NBA"). Mr. Conti brings this putative class action against Citizens, his mortgage lender, for failure to pay that interest on his escrow account. In July 2011, Mr. Conti purchased a residential property in Cranston, Rhode Island. He financed the purchase with a loan from Citizens, which was secured by a mortgage on the property. He makes no allegation that this mortgage was a jumbo loan or was made, guaranteed, or insured by a state or federal governmental lending or insuring agency. As a condition of the mortgage loan, Citizens required Mr. Conti to make advance payments of municipal property taxes and homeowner's insurance into an escrow account. The mortgage agreement between Citizens and Mr. Conti provided that, "Unless an agreement is made in writing or Applicable Law requires interest to be paid on the Escrow Funds, Lender will not be required to pay Borrower any interest or earnings on the Funds." The mortgage agreement defined "Applicable Law" as "all controlling federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable judicial opinions." Rhode Island law, subject to certain exceptions not relevant here, requires banks to pay interest on amounts that customers deposit into mortgage escrow accounts. Having not received interest payments from Citizens on his escrow account, the Plaintiff filed this action alleging breach of contract and, in the alternative, unjust enrichment. Citizens, however, being a national bank chartered under the National Bank Act, seeks to dismiss the action, arguing that any state statute requiring it to pay interest on escrow accounts is preempted by the National Bank Act. Preemption issues "are ones of law, not of fact, and are amenable to resolution by a motion to dismiss the complaint." Citizens moves to dismiss the matter on the grounds of federal preemption. Judge McElroy explains that under the Supremacy Clause of the United States Constitution "the Laws of the United States will be the supreme Law of the Land; and the Judges in every State will be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." State laws can be preempted in three ways: (1) "express preemption," when there is specific preemption language in a federal statute; (2) "field preemption," when it can be discerned from the statutory scheme that Congress intended to leave no room for state law on the same subject; and (3) "conflict preemption," when compliance with state and federal law is a "physical impossibility, or when compliance with the state statute would frustrate the purposes of the federal scheme," citing SPGGC, LLC v. Ayotte, 488 F.3d 525, 530-31 (1st Cir. 2007) (quoting Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31 (1996)). This matter concerns conflict preemption. Through the Dodd-Frank Act, which took effect on July 21, 2011, Congress codified -- but did not change -- the NBA preemption standard set forth by the Supreme Court in Barnett Bank. The Dodd-Frank Act also included an amendment to the Truth in Lending Act, effective Jan. 21, 2013, that provides as follows: If prescribed by applicable State or Federal law, each creditor will pay interest to the consumer on the amount held in any impound, trust, or escrow account that is subject to this section in the manner as prescribed by that applicable State or Federal law. This provision, however, only governs loans where (1) state or federal law requires the establishment of an escrow account; (2) the loan is "made, guaranteed, or insured by a State or Federal governmental lending or insuring agency"; (3) the loan is a "jumbo" mortgage; or (4) regulations require the establishment of an escrow account. The Plaintiff's mortgage falls into none of these categories and, indeed, the Plaintiff acknowledges that he makes no claim for violation of 15 U.S.C. Section 1639d. But the Plaintiff argues that Section 1639d evinces a congressional intent for an abrogation of NBA preemption of state interest-on-escrow laws generally. The Defendant, for its part, argues that Section 1639d, which does not mention preemption, does nothing to eliminate NBA preemption of state interest-on-escrow laws. Judge McElroy finds neither position well-grounded. She finds the Plaintiff's position too broad. The plain language of Section 1639d does not express congressional intent to impose an exception to NBA preemption for all mortgage loans; rather, it created an exception for the select group to which it applies. The Defendant's position, on the other hand, is too broad in the opposite fashion -- it ignores the carved-out exceptions entirely. Because the Plaintiff's mortgage loan is not of the types subject to Section 1639d, that statute is irrelevant to the case, and it serves only as an indicator of congressional intent with respect to the types of loans that it covers. The general rule of NBA preemption instead applies, and here preempts R.I.G.L. Section 19-9-2(a). Finally, Citizens argues that the fact that the Plaintiff seeks to represent a multi-state class asserting claims under various state interest-on-escrow laws is another ground for finding preemption. But here no class has been certified and the Court considers only the Rhode Island statute upon which the sole plaintiff before it claims a violation. Judge McElroy concludes that the Plaintiff has not set forth plausible claims for breach of contract or unjust enrichment for Citizens' alleged violation of R.I.G.L. Section 19-9-2(a) because, except for loan types not at issue, that statute is preempted by the NBA. Accordingly, Citizens' Motion to Dismiss is granted. A full-text copy of the Court's Sept. 28, 2022 Memorandum & Order is available at https://tinyurl.com/5eskx84n from Leagle.com. COINBASE GLOBAL: Faces Laffoon Suit Over 7% Share Price Drop ------------------------------------------------------------ DENNIS DEAN LAFFOON, individually and on behalf of all others similarly situated, Plaintiff v. COINBASE GLOBAL, INC., BRIAN ARMSTRONG, ALESIA J. HAAS, and EMILIE CHOI, Defendants, Case No. 2:22-cv-05744 (D.N.J., Sept. 27, 2022) is a federal securities class action on behalf of the Plaintiff and a class of all persons and entities who purchased or otherwise acquired Coinbase securities between April 14, 2021, and September 21, 2022, inclusive, seeking to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts, about the Company's business and operations throughout the Class Period. Specifically, Defendants misrepresented and/or failed to disclose that: (1) crypto assets Coinbase held as a custodian on behalf of its customers could qualify as property of a bankruptcy estate -- and not the Company's customers -- in the event Coinbase filed for bankruptcy; (2) Coinbase allowed Americans to trade crypto assets that the Company knew or recklessly disregarded should have been registered as securities with the Securities and Exchange Commission; (3) Coinbase had plans to, and did in fact, engage in proprietary trading of crypto assets; and (4) as a result, Defendants' statements about the Company's business, operations, and prospects lacked a reasonable basis and misled investors regarding material risks attendant to Coinbase's operations. On September 22, 2022, The Wall Street Journal reported that Coinbase had created a business group -- Coinbase Risk Solutions -- in July 2021 "to generate profit, in part, by using the [C]ompany's cash to trade and 'stake,' or lock up, cryptocurrencies," a practice that sources at the Company characterized as "'proprietary' trading." According to The Wall Street Journal, the group completed a $100 million investment in 2022 to "profit in cryptocurrency markets," and the transaction generated an "eagerness to make additional such transactions" within the Company. On this news, the price of Coinbase common stock declined $4.70 per share, or nearly 7%, from a close of $67.64 per share on September 21, 2022, to close at $62.94 per share on September 22, 2022, says the suit. As a result of Defendants' wrongful acts and omissions, and the significant decline in the market value of the Company's securities, Plaintiff and other members of the class have suffered significant damages, the suit added. Coinbase Global, a Delaware corporation, is one of the world's largest crypto asset exchanges.[BN] The Plaintiff is represented by: James E. Cecchi, Esq. Donald A. Ecklund, Esq. CARELLA, BYRNE, CECCHI, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994-1700 Facsimile: (973) 994-1744 E-mail: jcecchi@carellabyrne.com decklund@carellabyrne.com - and - Naumon A. Amjed, Esq. Ryan T. Degnan, Esq. Barbara A. Schwartz, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: namjed@ktmc.com rdegnan@ktmc.com bschwartz@ktmc.com COPPERLEAF MANAGEMENT: Schneider Sues Over Unpaid Overtime Wages ---------------------------------------------------------------- Brooke Schneider, on behalf of herself and all others similarly situated v. COPPERLEAF MANAGEMENT GROUP INC., Case No. 2:22-cv-01161 (E.D. Wis., Oct. 1, 2022), is brought pursuant to the Fair Labor Standards Act of 1938 and the Wisconsin's Wage Payment and Collection Laws for purposes of obtaining relief under the FLSA and WWPCL for unpaid overtime compensation, unpaid straight time (regular) and/or agreed upon wages, liquidated damages, costs, attorneys' fees, declaratory and/or injunctive relief, and/or any such other relief the Court may deem appropriate. The Defendant operated (and continues to operate) an unlawful compensation system that deprived and failed to compensate the Plaintiff and all other current and former hourly-paid, non-exempt employees for all hours worked and work performed each workweek, including at an overtime rate of pay for each hour worked in excess of 40 hours in a workweek, by: shaving time (via electronic timeclock rounding) from the Plaintiff's and all other hourly-paid, non- exempt employees' weekly timesheets for pre-shift and post-shift hours worked and/or work performed, to the detriment of said employees and to the benefit of the Defendant, in violation of the FLSA and WWPCL; and failing to compensate said employees for "off the clock" hours worked and work performed each workweek at the Defendant's direction, on the Defendant's behalf, for the Defendant's benefit, and/or with the Defendant's knowledge, in violation of the FLSA and WWPCL, says the complaint. The Plaintiff was hired by the Defendant as an hourly-paid, non-exempt employee in the position of Resident Aide working at Defendant's direction. The Defendant owns, operates, and manages assisted living, memory care, and short-term care locations and facilities throughout the State of Wisconsin, including but not limited to its "Copperleaf Village of Ripon" location.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Phone: (262) 780-1953 Fax: (262) 565-6469 Email: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com COTON COLORS: Velazquez Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Coton Colors Company, LLC. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Coton Colors Company, LLC, Case No. 1:22-cv-08353 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Coton Colors -- https://coton-colors.com/ -- is a designer and manufacturer of colorful handcrafted pottery, giftware and seasonal pieces.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com CRABTREE & BROWN: Jones Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Crabtree & Brown, LLC. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. Crabtree & Brown, LLC, Case No. 1:22-cv-08360 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Crabtree & Brown -- https://www.crabtreeandbrown.com/ -- offers a wide range of CBD products with zero thc.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com CREATIVE ENERGY: Velazquez Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Creative Energy Corporation. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Creative Energy Corporation, Case No. 1:22-cv-08370 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Creative Energy -- https://www.creativeenergy.com/ -- is a leader in innovative district energy solutions.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com CREDIT MANAGEMENT: Horowitz Files FDCPA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Credit Management Company. The case is styled as Devorah Horowitz, individually and on behalf of all others similarly situated v. Credit Management Company, PA, Case No. 7:22-cv-08359 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Credit Management Company -- https://www.creditmanagementcompany.com/ -- is committed to providing our business partners with optimum revenue cycle management.[BN] The Plaintiff is represented by: Robert Thomas Yusko, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: ryusko@steinsakslegal.com CUSTOM CORNHOLE: Velazquez Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Custom Cornhole Boards Incorporated. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Custom Cornhole Boards Incorporated, Case No. 1:22-cv-08372 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Custom Cornhole Boards -- https://www.cornholeboards.us/ -- is America's premium supplier of cornhole boards, cornhole bags and accessories.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com DAVLINS INC: Toro Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Davlins, Inc. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Davlins, Inc., Case No. 1:22-cv-08321 (S.D.N.Y., Sept. 29, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Davlins, Inc. doing business as Woodbury & Maple Grove -- https://www.thewoodsgifts.com/ -- offer a wide selection of gifts, candles, puzzles & gourmet foods.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com DE RUOSI GROUP: Ruiz Files Suit in Cal. Super. Ct. -------------------------------------------------- A class action lawsuit has been filed against The De Ruosi Group, LLC. The case is styled as Miguel A. Vigil Ruiz, individually, and on behalf of all others similarly situated v. The De Ruosi Group, LLC d/b/a Deruosi Nut, Case No. STK-CV-UOE-2022-0008780 (Cal. Super. Ct., San Joaquin Cty., Sept. 30, 2022). The case type is stated as "Unlimited Civil Other Employment." The De Ruosi Group, LLC doing business as Deruosi Nut -- https://deruosinut.com/ -- is a walnut processing facility located in California's central valley.[BN] The Plaintiff is represented by: John G. Yales, Esq. DEVON ENERGY: Wright Files Suit in D. Wyoming --------------------------------------------- A class action lawsuit has been filed against Devon Energy Production Company LP. The case is styled as Madeline A. Wright, formerly known as: Madeline A. Carson, on behalf of of herself and all others similarly situated v. Devon Energy Production Company LP, Case No. 2:22-cv-00213-NDF (D. Wyo., Sept. 29, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Devon Energy Production Company LP -- https://www.devonenergy.com/ -- provides oil and natural gas exploration and production services.[BN] The Plaintiff is represented by: Richard A. Erb, Jr., Esq. 222 South Gillette Avenue, Suite 310 P O Box 36 Gillette, WY 82717 Phone: (307) 682-0215 Fax: (307) 682-1339 Email: Rick@rickerb.com DEWAYNE HILL: CHS Seeks More Time to File Class Status Bid ---------------------------------------------------------- In the class action lawsuit captioned as CAPITAL HITCH SERVICE, INC., on behalf of Plaintiff and the class members, v. DEWAYNE HILL; and JOHN DOES 1-10, Case No. 4:22-cv-00234-RH-MAF (N.D. Fla.), the Plaintiff asks the Court to enter an order extending the date for filing of Motion for Class Certification by 90 days to December 26, 2022, or, alternatively, to strike the date for filing of Motion for Class Certification and set a date for filing of a status report. The Plaintiff seeks to secure redress for the actions of the Defendants, DeWayne Hill, and John Does 1-10, in sending or causing the sending of unsolicited advertisements to telephone facsimile machines in violation of the Telephone Consumer Protection Act (TCPA). A copy of the Plaintiff's motion dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3RwTIWj at no extra charge.[CC] The Plaintiff is represented by: Dulijaza (Julie) Clark, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 S. Clark Street, Suite 1500 Chicago, IL 60603-1824 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: courtecl@edcombs.com - and - Frank F. Owen, Esq. FRANK F. OWEN & ASSOCIATES, P.A. 1091 Ibis Avenue Miami Springs, FL 33166 Telephone: (305) 984-8915 E-mail: FFO@Castlepalms.com DIAMANTE MEMBERS: Court Affirms Summary Judgment in Faigin Suit --------------------------------------------------------------- In the case, AL FAIGIN AND N.G. FAIGIN, Appellants v. DIAMANTE MEMBERS CLUB, INC.; AND DIAMANTE, A PRIVATE MEMBERSHIP GOLF CLUB, LLC, Appellees, Case No. CV-19-765 (Ark. App.), the Court of Appeals of Arkansas, Division I, affirms the final judgment and decree of foreclosure entered by the Saline County Circuit Court granting summary judgment in favor of the Appellees. The Appellants are owners of property within the Diamante subdivision located in Hot Springs Village, Arkansas. The Appellees, Diamante, A Private Membership Golf Club, LLC and Diamante Members Club, Inc., respectively, are the former and current owners of a private golf club associated with the developed subdivision. In 1994, Cooper Communities, Inc. ("CCI"), and Club Corporations of America announced plans to build a private golf course with 450 dwelling units that would have access to the course. The private golf club was advertised as a premier amenity associated with the development. On March 29, 1994, CCI recorded the supplemental declarations of covenants and restrictions (the "Declarations") for the subdivision in the office of the circuit clerk and recorder of Saline County, Arkansas. The Declarations set forth the intention of CCI to develop lands adjacent to the subdivision into Diamante, A Private Membership Golf Club, Inc. ("Old Club"), and declared all purchasers of lots within the subdivision subject to the covenants contained therein, including but not limited to, a "full golf membership" that entitled the lot owner to utilize the facility at the "highest level of privilege." Further, all property owners are required to pay monthly dues, pay a transfer fee anytime the property is sold, and give Old Club lien and foreclosure rights for any unpaid fees. Additionally, the Declarations state that the provisions would be subject to the rules and regulations of the club as well as any articles and bylaws, revised or amended by Old Club. They also authorize the club to create other categories of membership that may be made available to the general public. The Appellants purchased a lot in the subdivision from John D. Schoonover, trustee of the Schoonover Living Trust, on July 31, 2006. As of April 30, 2010, appellants were delinquent in the amount of $3,341.91 for monthly club dues. On Oct. 14, 2010, Old Club recorded a lien against the property and on Nov. 16, 2010, Old Club filed its complaint in foreclosure against the Appellants. Subsequently, the Faigins moved for class certification and appointment of class counsel on Jan. 5, 2011, on behalf of all lot owners in the subdivision. The motion was denied, and as a result, the Appellants brought an interlocutory appeal to the Arkansas Supreme Court. The supreme court affirmed the circuit court's denial of the motion. Following the denial of class certification, Linda and Gary Dye brought suit in 2012 in the Saline County Circuit Court seeking a declaratory judgment to have the provisions contained in the Declarations declared unenforceable. Subsequently, a class of property owners in the Diamante subdivision was certified by the circuit court, and the certification was affirmed by the Arkansas Supreme Court in Diamante, LLC v. Dye, 2013 Ark. 501, 430 S.W.3d 710. The class requested that the circuit court declares the covenants contained in the Declarations unenforceable; orders Old Club to disgorge dues paid during the suit; mandates that dues recovered go directly to the maintenance and upkeep of the golf course; and awards attorney's fees. The circuit court declared the provisions of the Declarations valid and also denied disgorgement of any dues. The supreme court affirmed the circuit court's order on Feb. 16, 2017. After Dye had concluded, the Appellants filed their third amended answer and also asserted a counterclaim against Old Club. They asserted a cause of action for deceit for the alleged deliberate concealment of intent by Old Club related to exclusivity, or lack thereof, of the golf course and access thereto by non-property owners. They also alleged the following affirmative defenses: (1) deceit; (2) fraudulent inducement of contract; (3) inapplicability of the statute of limitations; (4) offset; and (5) waiver of unpaid dues charged after attempts to resign their full golf membership. In response, Old Club moved to dismiss and argued that the claim of deceit should have been raised in the Dye lawsuit; the question of whether it could allow non-property owners to use the golf course had already been adjudicated; and the statute of limitations had expired. The Appellants steadfastly maintain that the fraud was concealed until July 10, 2014, when Randy Brucker, president of the developer, testified in Dye that it was the intent of the developers to offer golf memberships to non-property owners from the beginning. Accordingly, they allege their claim was brought within the three-year statute of limitations. They also maintain that their counterclaim is not barred by the doctrine of res judicata. On May 31, 2017, the Appellants executed a quitclaim deed wherein they conveyed their interest in the property to Old Club. In response, Old Club executed a quitclaim deed back to appellants and noted their reconveyance of the property was unauthorized and not accepted. Notwithstanding Old Club's refusal to accept the conveyance, the Appellants filed a disclaimer of interest for the property on Oct. 10, 2017. While this matter was progressing, Old Club entered into an asset purchase and sale agreement with Diamante Members Club, Inc. ("New Club"), on July 28, 2017. Moreover, CCI entered a quitclaim of developer rights on Dec. 19, 2017, wherein it transferred its rights and title to the Declarations as well as other recorded documents related to the subdivision to New Club. Last, Old Club entered into an assignment of pending litigation, judgment, and liens wherein it assigned its rights, titles, interests, powers, privileges, benefits, and obligations under the recorded liens, acquired judgments, and pending foreclosure causes of action to New Club. On Dec. 3, 2018, New Club moved for summary judgment against appellants, arguing that no genuine issues of material fact remain and appellants failed to provide any valid defense to the complaint. In support of its motion, New Club attached the affidavit of Terri Socha, the club's property controller, wherein she attested to the membership dues and fees owed by appellants. Additionally, the real property lien; delinquent-dues spreadsheet; Declarations; quitclaim of developer's rights; and Assignment were provided by New Club. The Appellants opposed the summary-judgment motion and argued, among other things, that they had no knowledge of the terms of the Declarations; no claim for deceit was alleged or adjudicated in Dye, 2017 Ark. 42, 510 S.W.3d 759; and there exists no contractual agreement between themselves and New Club. Mr. Faigin attested to such assertions via affidavit, which was attached as an exhibit to appellants' response. Subsequently, the Appellants filed a cross-motion for summary judgment or, in the alternative, partial summary judgment. New Club defended summary judgment on the bases of the statute of limitations and res judicata. On April 11, 2019, Old Club filed a response to appellants' summary-judgment motion citing the ruling in Dye. The circuit court held a hearing on May 2, 2019, wherein the court heard argument on both motions for summary judgment as well as Old Club's motion to dismiss appellants' counterclaim. On May 6, 2019, the circuit court emailed its findings of fact and conclusions of law to counsel for the parties. For the purposes of the findings, the circuit court noted that it considered the two entities (Old Club and New Club) to be "one in the same." A final judgment and decree of foreclosure was entered by the court on May 31, 2019. Following entry of judgment, New Club filed a petition for attorney's fees, which was granted by the circuit court on July 24, 2019. The Appellants filed timely notices of appeal on July 24, 2019. This appeal followed. On appeal, the Appellants argue the following: (1) they were denied their right to a jury trial; (2) res judicata was no bar because (a) there was no claim preclusion, (b) there was no issue preclusion, and (c) unknown claims are not barred by res judicata; (3) reversal and remand is appropriate because fraudulent inducement is a proper defense that must be considered, specifically (a) fraudulent inducement is a question of fact, (b) the statute of limitations is no bar to raising fraudulent inducement in defense of the principal lawsuit or by conclusion, (c) the fraud alleged of selling golf membership to non-lot-owners was hidden by the secret plan and by fraudulent inducement, (d) the statute of limitations is no bar under Ark. Code Ann. Section 16-56-102, and (e) time limitations were tolled because of the fraudulent conduct; (4) New Club's claims were based on a failed assignment because it abolished the earlier contract by its amended and substituted bylaws, and appellants never agreed to New Club's contract; and (5) the award of fees and costs should be reversed. The Appellants contend that res judicata is not applicable; therefore, the circuit court's order should be reversed and remanded. Specifically, they maintain that Dye was devoid of any allegations of fraud in the inducement of a contract; that the issues litigated were not the same; they were not parties in Dye nor was New Club; and there was no full and fair opportunity in Dye for the parties to litigate fraud in the inducement because it was not revealed until the trial testimony of Mr. Brucker. In response, New Club contends that the Appellants had knowledge of what they now allege as fraud but instead characterized the same underlying facts as breach of contract in Dye. Old Club filed a separate appellate brief in defense of the circuit court's dismissal of the counterclaim arguing that appellants' claim is merely clothed in a different theory of recovery than in Dye; therefore, the appeal is barred by res judicata. The Court of Appeals simply determines whether the Appellees were entitled to judgment as a matter of law. The concept of res judicata has two facets, one being claim preclusion and the other issue preclusion. Res judicata bars not only the relitigation of claims that were actually litigated in the first suit but also those that could have been litigated. Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. The purpose of the res judicata doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Res judicata is based on the assumption that a litigant has already had his day in court. Considering the record on appeal, as well as the multitude of accompanying circuit court cases and appeals involving these facts and parties, the Court of Appeals finds this to be textbook res judicata. Allowing the Appellants, who have already had their day in court, to continue on this journey of litigating the same set of facts goes against the clear purpose of the well-established doctrine of res judicata, which is to prevent a litigant, who had a fair trial on the merits, from relitigating the matter a second time. Thus, Appellees were entitled to judgment as a matter of law, and res judicata applies to prevent the Appellants' claims on appeal. The circuit court correctly applied res judicata in granting summary judgment in favor of the Appellees. The Court of Appeals notes that the Appellants raise other challenges to the circuit court's order granting the Appellees' motions for summary judgment. However, having concluded that res judicata bars the Appellants' suit, it need not consider the other points on appeal. Hence, the judgment of the circuit court is affirmed. A full-text copy of the Court's Sept. 28, 2022 Opinion is available at https://tinyurl.com/mr2vv32v from Leagle.com. Robert S. Tschiemer -- robert@tschiemerlegalbriefing.com -- for the Appellants. Schnipper, Britton & Stobaugh by: Beau Britton, for separate Appellee Diamante Membership Club, Inc. McMillan, McCorkle & Curry, LLP by: J. Philip McCorkle, for separate Appellee Diamante, a Private Membership Golf Club, LLC. DREAM TEAM PIZZA: Taylor Sues Over Failure to Pay Sufficient Wages ------------------------------------------------------------------ Nicole Taylor, individually and on behalf of all others similarly situated v. DREAM TEAM PIZZA, LLC, Case No. 4:22-cv-00619-RK (W.D. Mo., Sept. 29, 2022), is brought against Defendant for violations of the Fair Labor Standards Act, and the wage laws of the Missouri Revised Statutes seeking declaratory judgment, monetary damages, liquidated damages, costs, and a reasonable attorneys' fee, as a result of the Defendant's policy and practice of failing to pay Plaintiff sufficient wages under the FLSA and the RSMo within the applicable statutory limitations period. The Plaintiff and the other Delivery Drivers at the Defendant's restaurants work "dual jobs." Specifically, they deliver food to the Defendant's customers and receive tips, and they also work inside the store completing nontipped duties. The Defendant paid the Plaintiff and other Delivery Drivers a rate at or close to minimum wage per hour for work performed while in the store. The Defendant paid the Plaintiff and other Delivery Drivers less than minimum wage per hour for all hours worked outside of the restaurant making deliveries. In other words, the Defendant takes advantage of the "tip credit" provision of the FLSA while the Plaintiff and other Delivery Drivers are out making deliveries. The Defendant does not track the Plaintiff's or other Delivery Drivers' actual expenses nor does the Defendant keep records of all of those expenses. The Defendant does not reimburse the Plaintiff and other Delivery Drivers for their actual expenses. The Defendant does not reimburse the Plaintiff and other Delivery Drivers at the IRS standard business mileage rate. The Defendant does not reimburse the Plaintiff and other Delivery Drivers at a reasonable approximation of Delivery Drivers' expenses. Defendant knew or should have known that it was not paying the Plaintiff and other Delivery Drivers sufficient minimum wages. The Defendant has willfully failed to pay minimum wage to Plaintiff and similarly situated Delivery Drivers, says the complaint. The Plaintiff was employed by the Defendant as an hourly-paid Delivery Driver from November of 2020 until June of 2021. The Defendant owns and operates Domino's franchises in Missouri.[BN] The Plaintiff is represented by: Courtney Harness, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AK 72211 Phone: (501) 221-0088 Facsimile: (888) 787-2040 Email: harness@sanfordlawfirm.com DRIVER PROVIDER: Loses Bid to Extend Class Cert Response Time ------------------------------------------------------------- In the class action lawsuit captioned as Kelli Salazar, et al., v. Driver Provider Phoenix LLC, et al., Case No. 2:19-cv-05760-SMB (D. Ariz.), the Hon. Judge Susan M. Brnovich entered an order denying the Defendant's motion for extension to respond to the Plaintiffs' motion for class certification. A copy of the Court's order dated Sept. 26, 2022 is available from PacerMonitor.com at https://bit.ly/3Su8yOO at no extra charge.[CC] DUCATI HOME: Sinche Sues to Recover Unpaid Overtime Wages --------------------------------------------------------- Julio Hernan Cayamcela Sinche and Johnny Fabian Cayamcela Sucuzhanay, individually and on behalf of all others similarly situated v. DUCATI HOME PROJECTS LLC d/b/a HEIGHTS FLOOR IMPROVEMENTS and WLADYSLAW LUBAS, as an individual, Case No. 2:22-cv-05852 (E.D.N.Y., Sept. 30, 2022), is brought against the Defendants to recover damages for egregious violations of state and federal wage and hour laws arising out of the Plaintiff's employment under the Fair Labor Standards Act and the New York Labor Law. Although Plaintiffs regularly worked 56-57 hours each week, the Defendants did not pay the Plaintiff at a wage rate of time and a half for his hours regularly worked over 40 hours in a work week, a blatant violation of the overtime provisions contained in the FLSA and NYLL. The Defendants 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 NYLL and the FLSA, says the complaint. The Plaintiffs were employed by the Defendants. DUCATI HOME PROJECTS LLC d/b/a HEIGHTS FLOOR IMPROVEMENTS, is a New York domestic business corporation, organized under the laws of the State of New York with principal executive offices located in Hicksville, New York.[BN] The Plaintiffs are represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80—02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Phone: 718-263-9591 Fax: 718-263-9598 EAST FORK INDUSTRIES: Toro Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against East Fork Industries, LLC. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. East Fork Industries, LLC, Case No. 1:22-cv-08346 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. East Fork -- https://www.eastfork.com/ -- makes and sells contemporary ceramic dinnerware made by hand with regional materials and a lot of integrity in Asheville, North Carolina.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com ENERGIZER BRANDS: E.D. New York Tosses Sklyar's 1st Amended Suit ---------------------------------------------------------------- In the case, EDUARD SKLYAR, Plaintiff v. ENERGIZER BRANDS, LLC, Defendant, Case No. 20-CV-6216(EK)(MMH)(E.D.N.Y.), Judge Eric Komitee of the U.S. District Court for the Eastern District of New York grants Energizer's motion to dismiss the First Amended Class Action Complaint. Energizer Brands advertised its "Energizer MAX" AA batteries as being "up to 50% longer lasting than basic alkaline in demanding devices." Sklyar alleges, in this putative class action, that this statement misled consumers as to the batteries' longevity and thus constituted a deceptive act or practice and false advertising under Sections 349 and 350 of New York's General Business Law. Sklyar also asserts a common-law claim for unjust enrichment. Mr. Sklyar alleges that Energizer advertised its AA MAX batteries using the following statement: "Up to 50% longer lasting than basic alkaline in demanding devices." He alleges that he purchased Energizer MAX batteries bearing the deceptive statement on four occasions, most recently in November 2020. He claims that prior to each purchase, he "viewed and relied upon Energizer's claim," "was persuaded and believed that they had qualities or characteristics superior to basic alkaline AA batteries," and therefore paid a "premium" for the batteries. Mr. Sklyar alleges further that the 50%-longer-lasting claim statement was intended to deceive consumers "regarding the comparative benefits of Energizer's AA MAX batteries relative to other alkaline batteries." He notes that the terms "basic alkaline" and "demanding devices" are not defined on Energizer's packaging. The FAC therefore supplies its own definition: "basic alkaline," Sklyar alleges, "encompasses all non-specialized, all-purpose alkaline batteries in the marketplace." This means that "consumers understand 'basic alkaline' to refer to to most, if not all, alkaline batteries." Similarly, Sklyar alleges that consumers understand "demanding devices" to "include a broad range of devices." Based on these assertions, Sklyar sums up by alleging that Energizer's claim falsely "conveys to consumers, including the Plaintiff," that its AA MAX batteries last "up to 50% longer than most, if not all alkaline batteries in most, if not all, devices." The 50%-longer claim, interpreted in that way, is false, according to the FAC: the batteries "are not 50% longer lasting in demanding devices than other competing batteries, including, for example, Duracell Coppertop batteries." Sklyar also alleges that the longevity of each MAX battery depends on its country of manufacture, with batteries made outside the U.S. being purportedly inferior. Mr. Sklyar commenced this lawsuit in late 2020, about a month after his last alleged purchase. He brings claims under Sections 349 and 350 of the New York General Business Law (GBL), as well as a claim for unjust enrichment. Energizer moves to dismiss the action for failure to state a claim. Judge Komitee holds that Sklyar's allegation that the reasonable consumer would understand basic alkaline to subsume "most, if not all, alkaline batteries" simply lacks the requisite plausibility. He finds that Energizer's use of the word "basic" to modify its comparators is also damaging to Sklyar's position. Basic means "of, relating to, or forming a base; fundamental," or alternatively "constituting or serving as the basis or starting point." Judge Komitee further holds that Sklyar's unjust-enrichment claim is duplicative of his GBL claims. The factual allegations underpinning that claim largely consist of the same allegations supporting his GBL claims, "incorporated by reference." He further alleges that Energizer's retention of revenues from sales of MAX batteries is "unjust and inequitable because Energizer's labeling of the products was misleading to consumers." These are the same factual allegations as his GBL claims. Nor has Sklyar alleged a distinct theory of liability or damages with respect to this claim. Accordingly, the Court must dismiss Sklyar's unjust enrichment claim as duplicative. For these reasons, Energizer's motion to dismiss is granted. The Clerk of Court is respectfully directed to enter judgment in favor of Energizer and to close the case. A full-text copy of the Court's Sept. 28, 2022 Memorandum & Order is available at https://tinyurl.com/5c7m3szx from Leagle.com. ERIE INDEMNITY: Exchange Suit Remanded to Court of Common Pleas --------------------------------------------------------------- Chief Magistrate Judge Cynthia Reed Eddy of the U.S. District Court for the Western District of Pennsylvania, Pittsburgh, remanded the case, ERIE INSURANCE EXCHANGE, AN UNINCORPORATED ASSOCIATION, BY TROY STEPHENSON, CHRISTINA STEPHENSON, AND STEVEN BARNETT, TRUSTEES AD LITEM, AND ALTERNATIVELY, ERIE INSURANCE EXCHANGE, BY TROY STEPHENSON, CHRISTINA STEPHENSON, AND STEVEN BARNETT, Plaintiffs v. ERIE INDEMNITY COMPANY, Defendant, Case No. 2:22-CV-00166-CRE (W.D. Pa.), to the Court of Common Pleas of Allegheny County, Pennsylvania. Plaintiffs Troy Stephenson, Christina Stephenson, and Steven Barnett as trustees ad litem on behalf of Erie Insurance Exchange initiated the breach of fiduciary duty action against Defendant Erie Indemnity ("Indemnity") in the Court of Common Pleas of Allegheny County, Pennsylvania. Thereafter, Indemnity removed the action to this Court. Presently for consideration is Exchange's motion to remand. Exchange is an unincorporated association that operates as a reciprocal insurer. It has no employees, officers, or board of directors. Indemnity serves as the managing agent and attorney-in-fact for Exchange in its operation as a reciprocal insurer. Exchange alleges that by virtue of this relationship, Indemnity owes fiduciary duties to Exchange. Exchange alleges that Indemnity has breached its fiduciary duties by charging Exchange an annual "Management Fee" that equates to tens of millions of dollars that is not used to cover the cost of serving as the attorney-in-fact and managing agent for Exchange, but funnels this money to Indemnity's shareholders, including a small group of controlling shareholders who are members of Indemnity's Board of Directors and who set the Management Fee in the form of dividends and "special dividend" payments. Plaintiffs Stephenson, Stephenson and Barnett initiated the action in the Court of Common Pleas of Allegheny County as trustees ad litem for Exchange under Rule 2152 of the Pennsylvania Rules of Civil Procedure. They allege two causes of action against Indemnity based on a breach of fiduciary duty for Indemnity's conduct in December 2019 and 2020 related to the management fee charge. On Jan. 27, 2022, Indemnity filed a Notice of Removal asserting that the Court has jurisdiction under Class Action Fairness Act of 2005, 28 U.S.C. Section 1332(d)(2) ("CAFA"). Exchange moves to remand the action to state court and argues that the Court lacks jurisdiction under CAFA. Exchange argues that this case must be remanded to state court because the action does not meet the subject matter jurisdiction requirements of CAFA because (1) the action is not a "class action" within the meaning of CAFA and (2) the parties are not minimally diverse as required by CAFA Section 1332(d)(2)(A). CAFA grants federal courts original jurisdiction over actions in which: (1) the matter constitutes a 'class action'; (2) 'the matter in controversy exceeds the sum or value of $5 million, exclusive of interest and costs'; (3) CAFA's minimal diversity requirements are met; and (4) there are at least 100 members of the putative class." The proper test in a CAFA removal action depends on the nature of the jurisdictional facts alleged and whether they are in dispute. Exchange takes issue with the first element and argues that the complaint does not allege a class action under the Federal Rules of Civil Procedure or any similar Pennsylvania statutes or rule. Indemnity argues that the Court should consider the parties litigation history and because Exchange has attempted to assert class claims under CAFA with respect to the management fees in prior actions, including a recently removed action that included class claims that the Plaintiffs voluntarily dismissed post-removal to the Court, the Court should consider the claims asserted as class claims. It argues that the Plaintiffs' voluntary dismissal of the prior putative class action and filing of the case sans-class claims is the functional amendment, or amendment de facto, of the Plaintiff's previously voluntarily dismissed action. Judge Eddy opines that she cannot consider Exchange's previously dismissed case that included class claims as a basis for CAFA jurisdiction in the case which pleads no class claims or state law equivalent claims. The present action as it is pleaded includes no class claims and because Exchange is the scrivener of its complaint and is free to choose the statutory provisions under which it will bring its claims, there is no basis for CAFA jurisdiction. Based on the foregoing, Exchange's motion to remand is granted and the Clerk's Office will remand the case to the Court of Common Pleas of Allegheny County, Pennsylvania forthwith. Should Indemnity seek a stay of the Order, they will file said motion to stay remand of the case. A full-text copy of the Court's Sept. 28, 2022 Memorandum Opinion is available at https://tinyurl.com/mwr27m59 from Leagle.com. ESPN INC: Swartz Sues Over Unlawful Wiretapping ----------------------------------------------- Nate Swartz, on behalf of himself and all others similarly situated v. ESPN Inc., Case No. 1:22-cv-01523-CCC (M.D. Pa., Sept. 29, 2022), is brought against the Defendant for violation of the federal Video Privacy Protection Act, and the Pennsylvania Wiretapping and Electronic Surveillance Control Act, by deciding to use Facebook's Meta Pixel on its website, Defendant knowingly Subscribers' ("Subscribers" refers to persons with digital subscriptions to ESPN+ or Intercepted ESPN.com) electronic communications without the proper consent. The Defendant then disclosed to Facebook the contents of these electronic communications in the form of Subscribers' (i) personally identifiable Facebook ID ("FID") and (ii) the computer file containing the watched video and its corresponding URL (the "uniform resource locator" or web address) ("Video Media"). Together, the FID and Video Media constitute a Subscriber's "Personal Viewing Information." The Defendant collects and shares the personal information of visitors to its website and App with third parties. The Defendant does this in a number of ways, including using cookies (small blocks of data stored on an internet user's computer to track the user's browsing activity); software development kits, or "SDKs" (sets of software and tools allowing developers to create applications); and pixels (pieces of code installed on website that measure the actions users take on a website). The Meta Pixel (f/k/a Facebook Pixel) is a code the Defendant installed on its website allowing the Defendant to track "conversions"—that is, when users take certain actions on its website, such as clicking an ad or viewing content—and to collect users' data. More specifically, the Meta Pixel allows ESPN.com to track when a Subscriber visits the ESPN.com website or App and views Video Media, as well as the Subscriber's FID. Importantly, without Subscriber consent, Defendant discloses the Subscriber's Personal Viewing Information--i.e., Subscriber's unique FID and video content viewed--together as one data point to Facebook. Because the Subscriber's FID uniquely identifies an individual's Facebook user account, Facebook--or any other ordinary person--can use it to quickly and easily locate, access, and view a Subscriber's corresponding Facebook profile. Put simply, the Meta Pixel allows Facebook to know what Video Media a Subscriber viewed on the ESPN.com site or App. By using the Meta Pixel to track Subscribers' activity on its website, Defendant targets advertising and other content on its website. Thus, Defendant profits handsomely from its unauthorized interception and disclosure of Personal Viewing Information to Facebook. It does so at the expense of its Subscribers' privacy and their statutory rights under the VPPA and the Pennsylvania Wiretap Act. Because Defendant's Subscribers are not informed about this dissemination of their Personal Viewing Information--indeed, it is automatic and invisible--they do not consent and cannot exercise reasonable judgment to defend themselves against the highly personal ways Defendant has used and continues to use their data to make money for itself. The Defendant chose to disregard Plaintiff's and millions of other Subscribers' statutorily protected privacy rights by releasing their personal data to Facebook. Accordingly, the Plaintiff brings this class action for legal and equitable remedies to redress and put a stop to the Defendant's practices of intentionally intercepting and disclosing its Subscribers' Personal Viewing Information to Facebook in knowing violation of the VPPA and the Pennsylvania Wiretap Act, says the complaint. The Plaintiff began his paid digital subscription to ESPN around 2017, first through ESPN Insider and later through ESPN+, and continues to maintain the subscription to this day. ESPN Inc. is a sports media company organized under the laws of Delaware, with its principal place of business located in Bristol, Connecticut.[BN] The Plaintiff is represented by: John A. Macoretta, Esq. Jeffrey L. Kodroff, Esq. Diana J. Zinser, Esq. SPECTOR ROSEMAN AND KODROFF, P.C. 2001 Market Street, Suite 3420 Philadelphia, PA 19103 Phone: (215) 496-0300 Fax: (215) 496-6611 Email: jmacoretta@srkattorneys.com jkodroff@srkattorneys.com dzinser@srkattorneys.com EVOLUTION NEW JERSEY: Lopaza Sues Over Wrongful Termination ----------------------------------------------------------- Brianna Lopaza, Individually and on behalf of all Michigan Employees of Evolution, New Jersey, LLC v. EVOLUTION NEW JERSEY, LLC, Case No. 2:22-cv-12333-GCS-CI (E.D. Mich., Oct. 2, 2022), is brought under the Fair Labor Standards Act of 1938, the Improved Workforce Opportunity Wage Act, pursuant to Michigan's Persons with Disabilities Civil Rights Act to seek unpaid overtime wages, liquidated damages, prejudgment interest, attorneys' fees, and other relief against the Defendant. Suddenly, and without cause, the Defendant terminated the Plaintiff upon her return from protected medical leave after the Plaintiff required three weeks of bed rest to recover from a miscarriage. Realizing its mistake, the Defendant re-hired Plaintiff, only to immediately terminate her again following her valid request for backpay to offset the financial loss she assumed between her wrongful termination and rehiring. Throughout the duration of her employment, the Defendant refused to compensate the Plaintiff any overtime pay, as has been the Defendant's practice with its Michigan employees, says the complaint. The Plaintiff served the Defendant as an Online Casino dealer prior to her termination. The Defendant is a foreign limited liability company with a registered agent in the City of Plymouth, County of Wayne, State of Michigan.[BN] The Plaintiff is represented by: Noah S. Hurwitz, Esq. Grant M. Vlahopoulos, Esq. Kara F. Krause, Esq. HURWITZ LAW PLLC 617 Detroit St., Ste. 125 Ann Arbor, MI 48104 Phone: (844)487-9489 Email: noah@hurwitzlaw.com grant@hurwitzlaw.com kara@hurwitzlaw.com FASHION NOVA: Grieben Sues Over Unsolicited Telephonic Sales Calls ------------------------------------------------------------------ Juan Grieben and Tynikal Pressley, individually and on behalf of all others similarly situated v. FASHION NOVA, INC., Case No. CACE-22-014573 (Fla. 17th Judicial Cir. Ct., Broward Cty., Sept. 29, 2022), is brought against the Defendant for the Defendant's violations of the Florida Telephone Solicitation Act by engaging in unsolicited telephonic sales calls. To promote its goods and services, the Defendant engages unsolicited text messaging to those who have not provided the Defendant with their prior express written consent as required by the FTSA. The Defendant's telephonic sales calls have caused the Plaintiffs harm, including violations under statutory rights and legally protected interests, statutory damages, annoyance, nuisance, and invasion of their privacy. Through this action, the Plaintiffs seek an injunction and statutory damages on behalf of the Plaintiffs individually and the Class members and any other available legal or equitable remedies resulting from the unlawful actions of the Defendant, says the complaint. The Plaintiffs are individuals and a "called party." The Defendant is a foreign corporation and a "telephone solicitor".[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 East Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Phone: 954.400.4713 Email: mhiraldo@hiraldolaw.com - and - Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave., Suite 1205 Miami, FL 33132 Phone (305) 479-2299 Email: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 20900 NE 30th Ave, Suite 417 Aventura, FL 33180 Phone: (305) 975-3320 Email: scott@edelsberglaw.com FEDEX GROUND: 140 Discovery Opt-Ins Dismissed From Claiborne Suit ----------------------------------------------------------------- In the case, HORACE CLAIBORNE, SONJIA MONIQUE BOWLIN, TYSHAWN WALKER, WILLIE SEALS, FREDERICK EPPICH, JEROME SCHOOLFIELD, KRISTINA TRAVIS, JEREMY WINKELS, DANIEL FORRESTER, MARK DAVID GRIFFETH, DOUGLAS RUSSELL, KENNETH BURTON, GERALD GENSOLI, and THOMAS DEPPIESSE, on behalf of themselves and others similarly situated, Plaintiffs v. FEDEX GROUND PACKAGE SYSTEMS, INC., Defendant, Case No. 2:18-cv-01698-RJC (W.D. Pa.), Judge Robert J. Colville of the U.S. District Court for the Western District of Pennsylvania issued an order granting the following motions filed by FedEx: (1) Motion to Dismiss with Prejudice Discovery Opt-Ins, From the Initial 500, Who Failed to Comply with the Court's Dec. 7, 2021, Discovery Order; (2) Motion to Dismiss Felicia Magee; and (3) Motion to Dismiss Brandi Stuehrenberg. The present case is a hybrid collective action under the Fair Labor Standards Act ("FLSA") and Rule 23 class action brought under the laws of certain states by the named Plaintiffs on behalf of themselves and other similarly situated individuals against FedEx for FedEx's alleged failure to pay requisite overtime compensation to the Plaintiffs. As the Court has noted in previous opinions in the case, the Plaintiffs assert that they were employed by FedEx through intermediary employers to perform delivery services on FedEx's behalf. They further assert that FedEx has violated the FLSA by not paying overtime compensation to them for all hours worked over 40 each week. Before the Court are the following Motions filed by FedEx: (1) Motion to Dismiss Discovery Opt-Ins; (2) FedEx's Motion to Dismiss Felicia Magee; and (3) Motion to Dismiss Brandi Stuehrenberg. Each of the Motions at issue seeks dismissal of certain opt-in plaintiffs from the case with prejudice based upon those individuals' failure to participate in discovery and/or abide by Court orders. Dismissal with prejudice is a drastic, "extreme" sanction, and courts consider several factors in deciding whether the same is appropriate. The U.S. Court of Appeals for the Third Circuit has explained in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867 (3d Cir. 1984): Ordinarily, when a court is determining sua sponte or upon motion of a defendant whether to dismiss because of a plaintiff's failure to prosecute, and the plaintiff is opposing the motion, the court must consider several factors in reaching its decision: (1) the extent of the party's personal responsibility; (2) the prejudice to the opponent; (3) any history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) whether effective alternative sanctions are available; and (6) the meritoriousness of the claim or the defense. The Motion to Dismiss Discovery Opt-Ins seeks dismissal with prejudice of 140 opt-in plaintiffs that FedEx asserts have not fully responded to discovery in violation of this Court's Dec. 7, 2021 Order of Court. The Plaintiffs oppose dismissal of these individuals with prejudice. By way of its Aug. 12, 2021 Memorandum Opinion, the Court provided the parties with "clear guidance" as to how individuals who failed to comply with Court orders directing them to fully respond to outstanding discovery requests would be viewed by the Court. It explained that opt-ins who failed to comply with such Court orders would be subject to dismissal with prejudice for the reasons articulated in that Memorandum Opinion. The Plaintiffs do not contend that any of these individuals has fully responded to the outstanding discovery requests at issue or has complied with either this Court's Sept. 15, 2021 or Dec. 7, 2021 Court Orders. The Discovery Opt-Ins were unquestionably on notice that the failure to provide complete responses following the Court's Dec. 7, 2021 Order could result in dismissal of their claims with prejudice. Judge Colville finds that the Discovery Opt-Ins failed to comply with this Court's Dec. 7, 2021 Order, and he grants the Motion to Dismiss Discovery Opt-Ins. For the reasons he discussed, and for those discussed in the Court's Aug. 12, 2021 Memorandum Opinion, he concludes that the claims of the 140 Discovery Opt-Ins at issue in the Motion to Dismiss Discovery Opt-Ins should be dismissed with prejudice. Turning to Magee and Stuehrenberg, FedEx asserts that each has failed to comply with the Court's Aug. 12, 2021 Order of Court. The Plaintiffs do not contend otherwise, and simply reiterate arguments that the Court has previously rejected. Judge Colville notes that Magee was explicitly mentioned in the Court's Aug. 12, 2021 Memorandum Opinion, and she has failed to comply with the Court's Order directing her to fully respond to outstanding discovery requests. Accordingly, he grants FedEx's Motion to Dismiss Felicia Magee, and Magee will be dismissed with prejudice. While Stuehrenberg was not explicitly mentioned by name, she was one of the 57 pre-notice opt-in plaintiffs who failed to provide complete responses to outstanding discovery requests discussed in the Aug. 12, 2021 Memorandum Opinion. To date, she has failed to comply with the Court's Aug. 12, 2021 Order directing her to fully respond to outstanding discovery requests. In light of the same, Judge Colville grants FedEx's Motion to Dismiss Brandi Stuehrenberg, and Stuehrenberg will be dismissed with prejudice. For these reasons, Judge Colville grants each of the Motions at issue in his Memorandum Opinion. An appropriate Order of Court follows. A full-text copy of the Court's Sept. 28, 2022 Memorandum Opinion is available at https://tinyurl.com/wjc5nm6b from Leagle.com. FEDEX GROUND: Loses Judgment Bid as to Deppiesse in Claiborne Suit ------------------------------------------------------------------ In the case, HORACE CLAIBORNE, SONJIA MONIQUE BOWLIN, TYSHAWN WALKER, WILLIE SEALS, FREDERICK EPPICH, JEROME SCHOOLFIELD, KRISTINA TRAVIS, JEREMY WINKELS, DANIEL FORRESTER, MARK DAVID GRIFFETH, DOUGLAS RUSSELL, KENNETH BURTON, GERALD GENSOLI, and THOMAS DEPPIESSE, on behalf of themselves and others similarly situated, Plaintiffs v. FEDEX GROUND PACKAGE SYSTEMS, INC., Defendant, Case No. 2:18-cv-01698-RJ (W.D. Pa.), Judge Robert J. Colville of the U.S. District Court for the Western District of Pennsylvania grants in part and denies in part the Defendant's Motion for Summary Judgment on all Claims Asserted by Plaintiffs Douglas Russell, Kenneth Burton, and Thomas Deppiesse. The present case is a hybrid collective action under the Fair Labor Standards Act ("FLSA") and Rule 23 class action brought under the laws of fourteen states by the named Plaintiffs on behalf of themselves and other similarly situated individuals against FedEx for FedEx's alleged failure to pay requisite overtime compensation to the Plaintiffs. The Plaintiffs assert that they were employed by FedEx through intermediary employers to perform delivery services on FedEx's behalf. They further assert that FedEx has violated the FLSA by not paying overtime compensation to the Plaintiffs for all hours worked over forty each week. In its Motion for Summary Judgment ("MSJ"), FedEx argues that it is entitled to summary judgment in its favor with respect to all claims brought against it by Plaintiffs Douglas Russell, Kenneth Burton, and Thomas Deppiesse (collectively, the "MSJ Plantiffs") in the Plaintiffs' First Amended Complaint (the "Complaint"). Russell, Burton, and Deppiesse collectively assert claims for unpaid overtime compensation under the FLSA (Count I) and, respectively, assert claims under the laws of Pennsylvania (Count XII), Rhode Island (Count XIII), and Wisconsin (Count XV) for unpaid overtime compensation. FedEx asserts that each of the MSJ Plaintiffs is not eligible for overtime under the FLSA or applicable state law because the MSJ Plaintiffs drove vehicles weighing 10,001 pounds or more either exclusively or almost exclusively during the relevant period, and are thus exempt from both the FLSA's overtime requirements and those imposed by applicable state law. In support of its Motion, FedEx has filed a Brief in Support, an Appendix of Exhibits, and a Concise Statement of Material Facts. The Plaintiffs oppose the MSJ in part, and have filed a Brief in Partial Opposition to the MSJ, a Responsive Concise Statement, and an Appendix of Exhibits. In partially opposing the MSJ, the Plaintiffs candidly explain as follows: After careful consideration and based upon extensive litigation and discovery, the Plaintiffs' undersigned counsel generally support FedEx Ground's reliance on Scanner Data to determine an employee's eligibility to participate in this collective litigation. Accordingly, as explained in the Plaintiffs' accompanying memorandum of law, the Plaintiffs' counsel wish to limit this litigation to individuals who have potentially viable FLSA claims according to FedEx's Scanner Data. Both Russell and Burton accept the accuracy of FedEx's Scanner Data and agree to be dismissed from this litigation with prejudice. However, Deppiesse disputes the accuracy of FedEx Ground's Scanner Data. The claims of Deppiesse should be dismissed without prejudice to him pursuing such claims outside of the context of this collective litigation (if he so chooses). FedEx has filed a Reply opposing Deppiesse's request for dismissal of his claims without prejudice. First, FedEx asserts that the MSJ Plaintiffs cannot maintain a claim for unpaid overtime compensation because they did not drive trucks weighing less than 10,000 pounds during the relevant timeframe and thus were not eligible to receive overtime under the Small Vehicle Exception to the Motor Carrier Act Exemption. Judge Colville explains that employees who are subject to the Motor Carrier Act Exemption may be entitled to overtime pay under the Small Vehicle Exception. He need not, and will not, expend significant resources or time in resolving the MSJ with respect to Russell and Burton, where each has admitted and acknowledged that judgment should be entered against them on the basis that they cannot invoke the Small Vehicle Exception and are thus exempt from receiving overtime compensation. The Plaintiffs clearly intend to rely on this Exception, and Russell and Burton have acknowledged that they will be unable to make a showing sufficient to establish that their work with small vehicles rose above the level of de minimis work. The Court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Given Russell's and Burton's acknowledgments and concessions, Judge Colville is constrained to conclude that they are currently, and will continue to be, unable to make a showing sufficient to establish an essential element of their case on which they will bear the burden, and judgment will be entered in FedEx's favor with respect to their claims. Judge Colville will not enter summary judgment in FedEx's favor as to Deppiesse's claims at this time. While he acknowledges that, he also notes that discovery is not yet complete in this matter, and that Deppiesse challenges the accuracy of FedEx's data and has testified that he believes he drove a truck that was lighter than 10,000 pounds during the timeframe relevant herein. He is not inclined to grant judgment in FedEx's favor, at this juncture, in light of the same. The Court's function is not to weigh evidence or make credibility determinations at this juncture. Discovery may reveal that Deppiesse's recollection is accurate, or in some manner corroborate Deppiesse's testimony. With respect to Deppiesse's claims, FedEx has come up short, at least while discovery is ongoing, of meeting its burden of establishing that there is no genuine dispute about any material fact as to the vehicles Deppiesse drove during the relevant timeframe and that judgment as a matter of law is warranted. Further, while the proposed order attached to the MSJ requests (and Deppiesse himself requests by way of his response) "dismissal" of Deppiesse's claims, Judge Colville notes that "a grant of summary judgment in a defendant's favor as to a particular claim does not result in 'dismissal' of that claim, but rather in entry of judgment on that claim in favor of the defendant." With respect to Deppiesse, the Defendant filed a motion for summary judgment, and not a motion to dismiss; and the Plaintiff has not filed a motion addressing Deppiesse. As such, Judge COlville will not consider dismissal of Deppiesse's claims at this time. The parties are free to confer and jointly or individually move for the dismissal of Deppiesse's claims, but he takes no position as to whether the same is warranted or appropriate by way of his Memorandum Opinion. Finally, Judge Colville briefly notes, as the parties are well aware, that this matter has involved extensive motion practice that has, at times, slowed the progression of the case. While he in no way intends to dissuade any party from filing whatever motion that party believes is appropriate, he is not inclined to entertain further opposed, piecemeal summary judgment motions prior to the completion of discovery. Judge Colville believes that consideration of all relevant summary judgment issues following the completion of discovery will result in the most efficient use of both the Court's and the parties' time, and that the same will avoid inefficient, piecemeal adjudication in this matter. For the reasons he discussed, Judge Colville grants FedEx's MSJ as to the claims brought by Russell and Burton, and denies the MSJ as to Deppiesse's claims. An appropriate Order of Court follows. A full-text copy of the Court's Sept. 28, 2022 Memorandum Opinion is available at https://tinyurl.com/yc3yvepu from Leagle.com. GEISINGER CLINIC: Finkbeiner Appeals Suit Dismissal to 3rd Cir. --------------------------------------------------------------- CHRISTINE LYNN FINKBEINER, et al. are taking an appeal from a court order dismissing their lawsuit entitled Christine Finkbeiner, et al., individually and on behalf of others similarly situated, Plaintiffs, v. Geisinger Clinic, et al., Defendants, Case No. 4-21-cv-01903, in the U.S. District Court for the Middle District of Pennsylvania. The Plaintiffs, individually and on behalf of others similarly situated, filed a class action suit against the Defendants seeking an injunction to stop their employer from requiring unvaccinated employees to be tested twice weekly for COVID-19. In August 2021, the Defendants required all their employees to be vaccinated unless eligible for a religious or medical exemption. Soon after this policy was announced, the Plaintiffs and Class members in the suit requested religious exemptions. In November 2021, unvaccinated employees of various Geisinger Healthcare affiliates were given a choice: vaccinate, test, or lose your job. The Plaintiffs and Class members opted for the latter. Led by Finkbeiner, these former Geisinger employees argue that their dismissal was unlawful. Though contorted into six claims, each begins from the same premise: COVID-19 vaccines and tests are unsafe and ineffective. On December 3, 2021, Geisinger moved for summary judgment, seeking to dismiss the employees' claims for good. However, Judge Matthew W. Brann denied this motion without prejudice on May 10, 2022, finding that it was premature, and instead instructed the employees to again amend their complaint. On July 22, 2022, the Plaintiffs filed a Third Amended Complaint, this time with Christine Finkbeiner as the lead plaintiff for a putative class of former employees. Geisinger soon responded by moving to dismiss the case under Federal Rule of Civil Procedure 12(b)(6) or strike the class action allegations under Rule 12(f). Finkbeiner failed to timely submit a brief in opposition. Like past complaints, the Third Amended Complaint also alleges that Geisinger's vaccinate-or-test requirement is unconstitutional. Finkbeiner first contends that by treating vaccinated and unvaccinated employees differently, Geisinger violated the Equal Protection Clause of the 14th Amendment. And in a later count, she also claims that this same policy violates the Due Process Clause of the Fifth and Fourteenth Amendments and Article I, Section 3 of the Pennsylvania Constitution, thus entitling her to a recovery under 42 U.S.C. Section 1983. Judge Brann holds that both theories have substantial defects. But there is no need for analysis past the first step. To make out a constitutional or Section 1983 claim, Finkbeiner must allege facts showing that Geisinger is a state actor. Finkbeiner's allegations in no way suggest that healthcare providers are, or ever have been, prohibited from doing more than the state-mandated minimum to protect their patients and staff. Her complaint fails to show that the government was responsible for the conduct. Judge Brann concludes that while cloaked in the language of religious discrimination, due process, equal protection, and tortious infliction of emotional distress, Finkbeiner's complaint makes plain that she's after a modern-day Scopes trial. She believes that COVID-19 vaccines and tests are a hoax. And she wants the Court to vindicate her views, overturn Geisinger's policy, and find that she and her colleagues should have been allowed to work -- unvaccinated and untested. But courts cannot simply weigh-in on every issue an employee has with its employer's policy. There must be a legal hook and she has not provided one. Hence, the Court ordered to dismiss the case with prejudice on August 26, 2022. The appellate case is captioned as Christine Finkbeiner v. Geisinger Clinic, et al., Case No. 22-2714, in the United States Court of Appeals for the Third Circuit, filed on September 15, 2022. [BN] Plaintiffs-Appellants CHRISTINE LYNN FINKBEINER, et al., individually and on behalf of all others similarly situated, are represented by: Gregory A. Stapp, Esq. MATHERS & STAPP 416 Pine Street Williamsport, PA 17701 Telephone: (570) 326-5171 Defendants-Appellees GEISINGER CLINIC INC., et al., are represented by: Anthony F. Andrisano, Jr., Esq. BUCHANAN INGERSOLL & ROONEY 409 North Second Street, Suite 500 Harrisburg, PA 17101 Telephone: (717) 237-4968 GEORGIA: Allowed to Leave to File Supplementary Material -------------------------------------------------------- In the class action lawsuit captioned as BRANDON COBB, et al., v. Georgia Department of Community Supervision (DCS), et al., Case No. 1:19-cv-03285-WMR (N.D. Ga.), the Hon. Judge William M. Ray II entered an order granting DCS and Michael Nail Motion for leave to file supplementary material regarding Defendants' pending Motion for Summary Judgment and Plaintiffs' Motion for Class Certification. A copy of the Court's order dated Sept. 26, 2022 is available from PacerMonitor.com at https://bit.ly/3RqSIDd at no extra charge.[CC] GROUP HEALTH: Cohen's Bid to Quash GHI's Subpoena Granted in Part ----------------------------------------------------------------- In the case, STEVE M. COHEN, Plaintiff v. GROUP HEALTH INC., Defendant, Case No. 22-MC-0200 (PAE)(KHP)(S.D.N.Y.), Magistrate Judge Katharine J. Parker of the U.S. District Court for the Southern District of New York grants in part and denies in part the Plaintiff's Motion to Quash. Petitioner Cohen moved to quash a subpoena served on him by Respondent Group Health Inc. ("GHI") in connection with a putative class action currently pending in the Middle District of Pennsylvania ("Underlying Action"). Cohen is counsel of record for the Plaintiffs in the Underlying Action. GHI, a health insurance company, is the Defendant in the Underlying Action. In 2013, Cohen, then an investigative journalist and law student, learned information about GHI that led him to believe GHI was involved in deceptive practices concerning reimbursement provided for out-of-network claims. He conducted a factual investigation into GHI, compiled his findings into a PowerPoint presentation, and shared his findings with the New York Attorney General ("NYAG"). NYAG conducted its own investigation into GHI, which resulted in an Assurance of Discontinuance ("AOD") in 2014. That same year, Cohen filed a qui tam lawsuit against GHI in his personal capacity as a Plaintiff-Relator in which he claimed to have personal knowledge about the alleged schemes GHI used to mislead its members. The Qui Tam Action settled in 2018. In 2017, a putative class of plaintiffs commenced the Underlying Action on behalf of individuals who were enrolled in a GHI health insurance plan between 2011 and 2015 and who claim to have been harmed by GHI's acts and practices relating to coverage for out-of-network providers. The complaint relies heavily on NYAG's investigation and the resulting AOD. Cohen, now a licensed attorney and counsel of record for the plaintiffs in that action, recruited the plaintiffs for the Underlying Action, including through Zoom meetings. He also personally verified certain interrogatories in the Underlying Action, including interrogatories identifying individuals with whom the Plaintiffs' counsel discussed the Underlying Action. The Underlying Action is before the Honorable Robert D. Mariani in the Middle District of Pennsylvania. Judge Mariani has overseen discovery to date and has issued numerous discovery rulings, including an order finding that GHI is entitled to discover "purely factual information" that is not protected by any privilege. Discovery in the Underlying Action is currently set to be completed on Sept. 30, 2022. GHI argues that discovery in the Underlying Action has revealed a need to depose Cohen and seek documents from him regarding relevant and non-privileged information in his possession. On June 24, 2022, GHI informed Cohen and the Plaintiffs' other counsel that it would seek discovery from Cohen, and it identified the following topics, including but not limited to, for a deposition of Cohen: Mr. Cohen's Communications with the NYAG's office, DFS or any other regulator, if any, concerning GHI, and any evidence or information provided by Mr. Cohen to the same; Non-privileged documents produced in this litigation from, to or referencing Mr. Cohen; and Mr. Cohen's personal opinions or beliefs concerning GHI, if any. The Plaintiffs' counsel rejected the proposed topics but stated it would agree to allow GHI to depose Cohen about his communications with the NYAG or any other regulator concerning GHI, and any evidence or information exchanged between Cohen and the NYAG or other regulators concerning GHI. On July 18, 2022, GHI served a subpoena upon Cohen seeking his deposition along with a document request for "all Documents and Communications between or among Cohen, on the one hand, and the New York Attorney General's Office, on the other, Concerning (i) GHI, (ii) the GHI Plan, or (iii) the claims and allegations in this Lawsuit." Mr. Cohen filed the instant Motion to Quash on July 27, 2022. GHI opposes the Motion to Quash and requests the Court denies the motion or transfers the motion to Judge Mariani. The parties appeared for an oral argument before Judge Parker on Sept. 22, 2022. Initially, Judge Parker opines that GHI has not met its burden in showing that any exceptional circumstances outweigh Cohen's interests here in a local resolution of this motion. GHI has not shown that the issues involved in this motion are particularly complex, that a thorough knowledge of the facts in the Underlying Action is necessary for resolving the motion, that the motion raises any issues that go directly to the underlying causes of action that cannot be resolved by this Court, or that any other exceptional circumstances are present. To the extent Judge Mariani already addressed any issues presented by the motion, the Court is capable of reviewing those orders and incorporating them into its decision. Moreover, the Court's resolution of this relatively straightforward motion will in fact assist Judge Mariani in his management of the Underlying Action by taking one of apparently many discovery disputes in this matter off his plate. Hence, GHI's request to transfer the motion is denied. Next, Judge Parker partially denies Cohen's Motion to Quash but requires the questioning to be limited. First, information in Cohen's possession relating to the NYAG investigation and Qui Tam Action certainly may support or undermine the plaintiffs' claims, and accordingly are relevant. Second, to the extent Cohen learned purely factual information from conversations with non-party participants in the GHI plan about their GHI coverage and any statements about it that they found to be confusing or misleading, such factual information may be relevant and is not privileged. However, in order to avoid probing privileged communications and work product, GHI may not ask questions that seek opinion or analysis from Cohen. Finally, to the extent GHI seeks identification of any non-party witnesses identified in interrogatories that Cohen verified, such information is relevant and GHI is entitled to inquire into these responses. Moreover, GHI seeks a substantial amount of information that, on balance, is irrelevant, unduly burdensome, or implicates the attorney-client privilege or work product doctrine. Such questioning will not be permitted. In particular, the Motion to Quash is granted to the extent GHI seeks to question Cohen regarding the following topics (except as circumscribed: 1. Topic 2, because it would be inconsistent with the principles of Friedman to ask Cohen about documents already produced in the Underlying Litigation for which other non-attorney fact witnesses have personal knowledge, but GHI may ask Cohen about documents obtained by Cohen in his personal capacity and produced. 2. Topic 3, because Cohen's personal beliefs are not relevant, and the beliefs and opinions of the Plaintiffs' counsel generally constitutes protected work product. 3. Topic 5, because Cohen's opinion on whether any factual information contradicts or supports claims or defenses in the action is protected work product. 4. Topics 6, 8, 9, 10, and 13, but only to the extent these topics seek information about Cohen's relationships and his various roles, because such topics are not relevant to any claims or defenses in the Underlying Action, and such questioning would not be proportional to the needs of the case. 5. Topic 11 but only to the extent the topic seeks information not specifically permitted in the above analysis. As discovery in the Underlying Action is nearly over, the Plaintiffs have presumably already provided all facts supporting their fraud claim, and accordingly it would be redundant to ask Cohen about this information to the extent other witnesses have already provided information. Moreover, the request for information contradicting claims probes into work product, as described. 6. Topic 14, to the extent this vague topic could be construed to permit questioning beyond what is outlined above as permissible. All questioning must be appropriately circumscribed as set forth. A full-text copy of the Court's Sept. 28, 2022 Opinion & Order is available at https://tinyurl.com/43vchy8v from Leagle.com. HAWBAKER INC: Court Modifies Class Certification Dates in Packer ---------------------------------------------------------------- In the class action lawsuit captioned as LESTER PACKER SR., LESTER PACKER II, and SHAWN DYROFF, individually and situated, on behalf of the GLENN O. HAWBAKER, INC. PLAN, v. GLENN O. HAWBAKER, INC., BOARD OF DIRECTORS OF GLENN O. HAWBAKER, INC., the PLAN ADMINISTRATOR OF THE GLENN O. HAWBAKER, INC. BENEFIT PLAN, and JOHN DOES 1-20, Case No. 4:21-cv-01747-MWB (M.D. Pa.), the Hon. Judge Matthew W. Brann entered an order that the Class Certification discovery and briefing dates are modified as follows: -- Pre-Certification Discovery: March 15, 2023 -- Plaintiffs' Motion for January 16, 2023 Class Certification: -- Defendants' Response in February 28, 2023 Opposition: -- Plaintiffs' Reply Brief: April 28, 2023 A copy of the Court's order dated Sept. 26, 2022 is available from PacerMonitor.com at https://bit.ly/3rjTs2a at no extra charge.[CC] HERR FOODS: Forlenza Files Flavored Cheese Curls Mislabeling Suit ------------------------------------------------------------------ Jennifer Forlenza, individually and on behalf of all others similarly situated, Plaintiff v. Herr Foods Incorporated, Defendant, Case No. 1:22-cv-05278 (N.D. Ill., Sept. 27, 2022) is a class action against the Defendant for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act and State Consumer Fraud Acts, breaches of express warranty, negligent misrepresentation, fraud, and unjust enrichment. Herr Foods manufactures, packages, labels, markets, and sells jalapeno poppers flavored cheese curls under the Herr's brand. According to the complaint, the representations of "flavored cheese curls," cheese and/or jalapenos are false, deceptive and misleading because it omits disclosure that the product's taste is due in part to artificial flavoring. By representing the product as "flavored cheese curls" with pictures of jalapeno and cheese and these words, consumers, including Plaintiff, will expect the taste is from the identified ingredients and/or natural flavors derived from these ingredients, says the suit. As a result of the false and misleading representations, the product is sold at a premium price, approximately no less than $2.79 for 3 oz, though other sizes may be sold for one dollar at certain dollar stores, excluding tax and sales, higher than similar products, represented in a non-misleading way, and higher than it would be sold for absent the misleading representations and omissions, the suit added.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com IANTHUS CAPITAL: Court Narrows Claims in Amended Securities Suits ----------------------------------------------------------------- In the case, In re iANTHUS CAPITAL HOLDINGS, INC. SECURITIES LITIGATION. This document relates to: 20-cv-03135, 20-cv-03898, Case No. 20-cv-3135 (LAK) (S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York grants in part and denies in part the Defendants' motions to dismiss the second amended complaints. These related cases are brought pursuant to the Securities Exchange Act of 1934 and regulations thereunder principally against iAnthus. iAnthus is a Canadian company that owns and operates cannabis facilities in the United States. It is organized and exists under Canadian law, its registered office is in Canada, and its shares are listed on the Canadian Securities Exchange ("CSE") and trade over-the-counter in the United States. On April 6, 2020, iAnthus announced that it had defaulted on its debt, including interest due to its senior secured lender and most significant source of financing, Gotham Green Partners ("GGP"). Soon after, it revealed that its CEO had accepted an interest-free loan from GGP's managing member one day after the final round of financing between their companies had closed. iAnthus and GGP then negotiated a restructuring support agreement (the "Restructuring Transaction") designed to give GGP one half of iAnthus' equity in exchange for reducing iAnthus's debt and the provision of additional interim financing. The agreement would leave pre-existing equity holders with very little of their original investments. The Supreme Court of British Columbia approved the Restructuring Transaction over shareholder objections in October 2020. The Court of Appeal of British Columbia dismissed an appeal from the Supreme Court's order on Jan. 29, 20218 Other lawsuits have been brought against iAnthus in Canadian courts, at least one of them by its largest shareholder Hi-Med LLC. And, in August 2021, GGP applied for an order from the Ontario Superior Court of Justice prohibiting iAnthus from terminating the Recapitalization Transaction after iAnthus purportedly received "other, better offers" for recapitalization. The court decided -- subject to iAnthus' appeal, which was pending at the time these motions were filed -- that iAnthus remains bound to continue in its agreement with GGP. The actions now before the Court are a consolidated class action led by Plaintiff Jose Antonio Silva and an individual action brought by Hi-Med. The Plaintiffs allege -- on a high level of generality -- that iAnthus, GGP, and executives at both companies violated Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder by failing to disclose information regarding its relationship with GGP and certain terms governing the financing that GGP provided. They claim that because of these undisclosed facts iAnthus defaulted on its loans to GGP and then positioned GGP to take over the company. Hi-Med asserts also common law claims based on the same conduct. Mr. Silva is a resident of Louisiana. He purchased iAnthus securities over the counter during the class period, which extends from May 14, 2018 to July 10, 2020. The proposed class includes "all those who purchased or otherwise acquired iAnthus securities during the Class Period and were damaged upon the revelation of the alleged corrective disclosures and the materialization of the undisclosed risks." The class excludes the Defendants, "the officers and directors of iAnthus, at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns, and any entity in which the Defendants have or had a controlling interest." Hi-Med is a limited liability company organized under the laws of Florida with its principal office in Florida. Its sole member is Kapex I, L.L.C. and the members of Kapex I are Dr. Krishna Singh and Martha Singh, both of Florida. As indicated, iAnthus is a Canadian company with its principal executive offices in New York. Hadley C. Ford is a co-founder of iAnthus and its former CEO and director. Julius John Kalcevich is the chief financial officer ("CFO") of iAnthus and was formerly a director. Elizabeth Stavola was formerly the chief strategy officer of iAnthus. Robert Galvin formerly was a director of iAnthus. Randy Maslow was a co-founder of iAnthus and, when the second amended complaints were filed, was the interim CEO and a director. GGP is a private equity film focused on cannabis investments. It maintains its primary offices in California. Jason Adler is a managing member of GGP. In Silva's Second Consolidated Amended Complaint ("SCAC") and the Hi-Med Second Amended Complaint ("Hi-Med SAC"), it is alleged that during the class period, GGP was iAnthus' main source of financing, largely in the form of secured debt at an interest rate of 13%. The Plaintiffs allege that iAnthus used the debt it issued during the class period to expand its operations rapidly through acquisitions that diluted the existing shareholders. Relevant to the claims at issue, iAnthus announced its purchase of MPX Bioceutical Corp., another cannabis company, on Oct. 18, 2018. The all-stock transaction was valued at $835 million. iAnthus made public statements in 2019 suggesting that a $100 million financing plan with GGP would support the company's growth and help it become profitable by 2020. The Defendants assured investors that the company was making money and that GGP would provide additional funding if needed. The Plaintiffs allege that these statements "misled investors by misrepresenting the true nature of iAnthus' -- and Ford's -- relationship with GGP and its other lenders." In each of its first two lending agreements with GGP, in May 2018 and September 2019, iAnthus promised to place in escrow approximately $5.27 million to be available to fund its interest obligations. It first disclosed on April 12, 2019 that it "fully released" the funds relating to the first loan to iAnthus on March 5, 2019." The Plaintiffs allege that iAnthus had no contractual basis for the release of these funds, and its release therefore is indicative of collusion between iAnthus and GGP. In addition, although iAnthus never disclosed a release of the escrow funds related to the second lending agreement, those funds nevertheless were unavailable to iAnthus upon its default in March 2020. On April 6, 2020, iAnthus announced that it had failed to secure further financing "since the last loan from GGP on Dec. 20, 2019, whether as part of the $100 million financing plan with GGP previously announced on Sept. 30, 2019, or from other sources." Failing to pay the $4.4 million in interest owed to GGP and its unsecured lenders on March 31, 2020, iAnthus defaulted under its secured notes with GGP and its other unsecured notes. Also on April 6, 2020, iAnthus disclosed that its board had formed a special committee to "investigate any potential conflicts of interest and/or required disclosures with respect to the Company's CEO and certain related parties." It stated that the investigation was spurred by a March 31, 2020 online report alleging that Ford had acted due to a conflict of interest. The revelations relating to Ford's actions allegedly resulted in a 62% drop in iAnthus's stock on April 6, 2020 (the day iAnthus announced the formation of a special committee) and iAnthus' default on its debt and subsequent restructuring. The Plaintiffs allege that iAnthus had other options -- including the use of its reported assets or the sale of a dispensary -- to repay its debts instead of defaulting and restructuring to the benefit of GGP. They therefore claim that the Defendants' decisions during this period were influenced by Ford's allegedly improper relationship with Adler and GGP. On June 23, 2020, iAnthus announced that GGP had made a demand for repayment. iAnthus then announced on July 13, 2020 that it had entered into a restructuring agreement with GGP and 91% of its unsecured debentureholders. The restructuring would reduce the principal amount of iAnthus's debt from $159.1 million to $121.4 million. The Restructuring Transaction was approved by Canadian courts. As of the time these motions were filed, its implementation was pending an appeal by iAnthus in litigation between it and GGP. The Plaintiffs allege various other acts of self-dealing by the Defendants. iAnthus disclosed in 2017 that it extended a $500,000 (Canadian) loan to Ford at an interest rate of 2.5% upon maturity in June 2020. The Plaintiffs allege that iAnthus granted 7.2 million stock options to its executives and employees on April 23, 2019, and then cancelled those options and granted approximately 9.65 million new options at a lower exercise price on June 6, 2019. Ford received $1.48 million in net proceeds from his sales of stock during the class period after accounting for the cost of exercising his options. Anthus also on Jan. 10, 2020 repaid the full outstanding balance of its $10.8 million loan from Stavola, plus $24,000 in interest, on a note that would mature on Jan. 19, 2020. This payment was first revealed on July 31, 2020. Stavola resigned soon after. The Defendants move to dismiss on grounds including extraterritoriality, forum non conveniens, and because their alleged statements and omissions do not state a cause of action for securities fraud pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(6), and the Private Securities Litigation Reform Act ("PSLRA"). The Court granted the Defendants' prior motions to dismiss their first amended complaints in an Aug. 30, 2021 opinion, concluding that no Plaintiff had pled facts sufficient to show a domestic purchase of iAnthus securities. The claims therefore were improper because the Exchange Act does not apply extraterritorially. The Defendants now move to dismiss the second amended complaints against them. As to domestic transactions, the three transactions addressed by the Court in its decision on the original motions to dismiss remain at issue. First, Silva alleges that he purchased shares of iAnthus's common stock. Second, Hi-Med alleges that it obtained shares of iAnthus's common stock through a transaction between iAnthus and MPX. Third, Hi-Med alleges that it purchased a convertible debenture from iAnthus. Judge Kaplan concludes that the Plaintiffs have alleged sufficiently that Silva's stock purchases and Hi-Med's purchase of a debenture from iAnthus were domestic under Morrison, but Hi-Med's acquisition of stock through the iAnthus-MPX transaction was not. As to Silva's stock purchases, Judge Kaplan opines that the facts pleaded, viewed in the light most favorable to the Plaintiffs, are sufficient to show a domestic purchase under Morrison's second prong because the trades allegedly became binding when E*TRADE fulfilled the orders, which it did domestically. Silva alleges that E*TRADE "'only processes domestic orders on domestic exchanges' and does not offer 'international trading' or access to international markets." And a representative from TD Ameritrade allegedly explained to Silva that "when it conducts transactions for securities of foreign companies that are listed on the U.S. OTC market that have a 5-digit tracker ending in "F" (such as ITHUF), it therefore routes those transactions through the U.S. and not a foreign exchange. As to Hi-Med's stock acquisition, Hi-Med has not alleged that it acquired shares of iAnthus's common stock through a domestic transaction. Judge Kaplan finds that Hi-Med has failed to plead that delivery bears on where the "transaction itself or passage of title" occurred." It is the situs of the transaction "between iAnthus and MPX" that is determinative. Hi-Med also has not pleaded any facts to suggest that the transaction between MPX and iAnthus was domestic. Regarding Hi-Med's debenture, Judge Kaplan rules that Hi-Med's right to trigger a future passage of title by delivering a notice to iAnthus's offices in the United States says nothing whatsoever about the nature of the debenture itself. In addition, none of the contractual provisions listed by iAnthus addresses title or liability. And irrevocable liability may be incurred through a contractual meeting of the minds even when "their obligations may be subject to a condition subsequent" before liability is incurred or title is passed. With respect to predominantly foreign claims, providing a domestic forum would enhance confidence in U.S. securities markets and protect U.S. investors, Judge Kaplan says. And while the purported fraud by Porsche was perpetrated abroad and, at most, "directed into the United States" by the Defendants through their statements "in telephone calls or in visits," he says iAnthus is U.S.-based, and a significant portion of the deceptive conduct allegedly was perpetrated domestically. Also, the potential for "incompatibility between U.S. and foreign law is just one form of evidence that a particular application of the statute is extraterritorial" and "it is neither a safe harbor nor the only relevant consideration in the extraterritoriality analysis." Litigation indeed was ongoing in Canada at the time these motions were filed, but the substantial connection between the conduct at issue and the United States tilts in favor of this Court's adjudication of these matters. As to forum non conveniens, Judge Kaplan concludes in his discretion that dismissal for foreign non conveniens is not warranted. First, he holds that the totality of the circumstances weighs in favor of granting moderate deference to Silva's chosen forum. The Defendants have offered no evidence of bad faith or forum shopping by Silva despite the parallel litigation ongoing in Canada at the time these motions were filed. He further holds that Hi-Med's choice of a U.S. forum is entitled to deference. Hi-Med is not asserting any claims against iAnthus in the British Columbia case under the laws of the United States." And even if Hi-Med chose to sue in federal court as well as in Canada at least in part to benefit from some litigation advantage, such a choice would not sway the Court significantly one way or another. Second, Judge Kaplan finds that a Canadian court would be an adequate alternative forum to try these actions. The Second Circuit has concluded on at least one occasion that Canadian courts may provide an adequate forum in which to try claims which would in the U.S. be adjudicated as federal securities law class actions. The question is also not whether Canadian courts currently are adjudicating the issues raised in the instant case. It is whether the Canadian courts would be capable of doing so. Nothing in Hi-Med's briefing suggests this would not be the case. Last, the public interest of the United States in adjudicating federal law claims such as these is strong. And no concerns arising from the private interests of the parties should preclude litigating these actions in the Court. Despite the Canadian litigation which was proceeding in parallel with these actions at the time these motions were filed, any potential for inconsistent judgments is remedied by the availability of the doctrine of issue preclusion, which applies between United States and Canadian courts. American courts "will normally accord considerable deference to foreign adjudications as a matter of comity." As to the sufficiency of the Section 10(b) and Rule 10b-5 claims, Judge Kaplan opines that (i) the Plaintiffs have failed to allege that defendants made any misstatements or omissions based on their purported conflicts of interest; (ii) a reasonable investor would view GGP's right to the exit fee as creating a significant alteration of the 'total mix' of information made available and therefore the Defendants' omissions on this point are actionable; (iii) only the relative few statements in which the Defendants relied on GGP's first financing as support for a claim or claims about availability of capital but omitted to mention the exit fee are actionable; (iv) given the facts presented in the operative pleadings, the Plaintiffs have pleaded adequately the alleged materially false or misleading statements; and (v) the Plaintiffs have not alleged that defendants made any statements relating to the escrow obligation arising from the amended debenture agreement, but the complaints nonetheless plead strong circumstantial evidence that the Defendants intended to deceive or defraud the Plaintiffs, or acted recklessly. Regarding statements "in connection with"" the purchase or sale of securities, GGP and Adler's statements therefore were made in connection with the relevant securities, Judge Kaplan finds. Adler's statements tend to induce a reasonable investor to purchase iAnthus securities; Adler's endorsement of the company and expression of his expectation that, through a continued partnership with GGP, iAnthus would continue to grow directly "pertained to the value, nature, or investment characteristics of the securities at issue. With respect to reliance, Silva's claims are entitled to a presumption of reliance under the fraud on the market theory. GGP and Adler contend that OTCQX (and OTCQB, on which iAnthus stock was traded earlier in the class period) are not efficient markets. But the SCAC pleads "multiple factors that establish an efficient market, which supports the presumption that the Plaintiff relied on the integrity of the market price for iAnthus's stock." Regarding economic loss and causation, Judge Kaplan holds that the allegations suffice to put the Defendants on notice of the loss to the class and the causal connection the Lead Plaintiff has in mind. Among other things, Silva asserts that the decline in iAnthus's stock price "brought the company closer to bankruptcy. Hi-Med claims that the Defendants are liable for perpetrating a scheme under Rule 10b-5. But Judge Kaplan holds that the complaint fails to "articulate with precision the contours of an alleged scheme to defraud investors, or which specific acts were conducted in furtherance of it."The Plaintiff concedes that, to state a claim for scheme liability, it would need to plead "the performance of an inherently deceptive act that is distinct from an alleged misstatement." But no allegations separate from those of alleged misstatements and omissions are forthcoming. For these reasons, Hi-Med's scheme claim must be dismissed. The SCAC and Hi-Med SAC allege that Ford and Kalcevich led iAnthus and directed and authorized its financing activities. They allege also that Adler did the same for GGP. All three defendants, at various times, authorized and signed off on the transactions that form the basis of the Plaintiffs' claims in these actions. As alleged, all three were culpable participants therein. Hi-Med asserts also claims under Section 20(a) against defendants Stavola, Galvin, and Maslow. Judge Kaplan opines that Hi-Med pleads facts sufficient to show that these three Defendants in some sense controlled iAnthus, but it does not plead any facts to suggest how any of them were culpable in the primary violations. Accordingly, these claims are dismissed. Finally, Hi-Med asserts common law claims under New York law for (a) breach of contract against iAnthus, (b) tortious interference with contract and prospective economic advantage against GGP and Adler, and (c) common law fraud against all Defendants. It urges the Court to exercise supplemental jurisdiction over these claims. Judge Kaplan allows Hi-Med's common law fraud claim to proceed as to the alleged misstatements and omissions which the Court has concluded are pled sufficiently under Section 10(b) of the Exchange Act. He also allows Hi-Med's breach of contract claims for now. But Judge Kaplan agrees that Hi-Med's tortious interference with prospective economic advantage claim against GGP and Adler should also be dismissed because "the Hi-Med's SAC contains nothing beyond conclusory allegations that parrot the elements of the claim." Accordingly, both of Hi-Med's tortious interference claims must be dismissed. For the reasons he stated, Judge Kaplan grants in part and denies in part the motions to dismiss [20-cv-3135 (LAK), Dkts. 93, 95, 97, 99; 20-cv-3898 (LAK), Dkts. 82, 84, 86, 88]. A full-text copy of the Court's Sept. 28, 2022 Memorandum Opinion is available at https://tinyurl.com/4pmr6at5 from Leagle.com. Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Michael Grunfeld -- mgrunfeld@pomlaw.com -- POMERANTZ LLP, Attorneys for Lead Plaintiff Jose Antonio Silva. Jonathan Temchin -- mgrunfeld@pomlaw.com -- Richard Joseph Lamar Lomuscio -- mgrunfeld@pomlaw.com -- TARTER KRINSKY & DROGIN LLP. Michael Paul O'Mullan, RIKER DANZIG SCHERER HYLAND PERRETTI LLP, Attorneys for Plaintiff Hi-Med LLC. Adam R. Mandelsberg -- AMandelsberg@perkinscoie.com -- Emily Cooper -- ECooper@perkinscoie.com -- Adam Hugh Schuman, PERKINS COIE LLP, Attorneys for Defendant Hadley C. Ford. Seth L. Levine -- slevine@levinelee.com -- Chad P. Albert -- calbert@levinelee.com -- LEVINE LEE LLP, Attorneys for Defendants iAnthus Capital Holdings, Inc., Julius John Kalcevich, Randy Maslow and Robert Galvin. Carla M. Wirtschafter -- cwirtschafter@reedsmith.com -- James Sanders -- jsanders@reedsmith.com -- Jason Mayer -- jmayer@reedsmith.com -- Ian Marcus Turetsky -- ituretsky@reedsmith.com -- REED SMITH LLP, Attorneys for Defendant Gotham Green Partners LLC and Jason Adler. Charles J. Falletta -- cfalletta@sillscummis.com -- Mark Steven Olinsky -- molinsky@sillscummis.com -- SILLS CUMMIS & GROSS, P.C., Attorneys for Defendant Elizabeth Stavola. INTEGRATED TECH: Court Issues Show Cause Order in Monplaisir Suit ----------------------------------------------------------------- In the case, PAUL MONPLAISIR, on behalf of himself and all others similarly situated, Plaintiffs v. INTEGRATED TECH GROUP, LLC, et al., Defendants, Case No. C 19-01484 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California orders the counsel to show cause as to why dismissal is proper as to the 213 individuals, who signed arbitration settlement agreements. The lawsuit is a wage-and-hour collective action with a long and tortured history. The Plaintiff worked as a technician for Defendants Integrated Tech Group, LLC, and ITG Communications, LLC, which provided home installation services for cable and telecommunications equipment. An August 2019 order conditionally certified a nationwide collective under the Fair Labor Standards Act. A March 2020 order, however, compelled many members of the collective to arbitration. A March 2021 order then rejected the Plaintiff's bid to certify a class covering his non-FLSA claims because all but 16 members of the putative class had signed arbitration agreements. No Rule 23 class was ever certified. The dispute seemingly concluded when a May 2022 order approved a monetary settlement of the collective's FLSA claims and the PAGA claims for all aggrieved California employees. No members of the collective or the PAGA class had signed arbitration agreements. Meanwhile, a total of 222 employees who had initially been part of the conditionally-certified collective but had been subsequently compelled to arbitration filed a demand for arbitration with the American Arbitration Association. Of those employees, 213 have reached individual settlements in the arbitration proceedings. The parties have now stipulated "pursuant to the terms of" those individual settlement agreements "to dismiss with prejudice all claims in this litigation" as to the individuals who signed the agreements. Their filing announces that dismissal of these claims is proper pursuant to FRCP 41(a)(1) and Civil Local Rule 7-12 and then goes on to list by name all 213 employees who have signed individual settlement agreements. Judge Alsup points out that FRCP 41(a)(1) governs voluntary dismissal by the Plaintiff. The employees who signed arbitration agreements, however, are not Plaintiffs in this action. They are not members of even the conditionally-certified collective. Prior orders made this clear. Further, the counsel have not adequately explained why FRCP 41(a) would provide authority to stipulate to dismiss on behalf of 213 employees in a collective action. The counsel are accordingly ordered to show cause as to why dismissal is proper as to the 213 individuals who signed arbitration settlement agreements. A response to this Order is due in 14 calendar days. A full-text copy of the Court's Sept. 28, 2022 Order is available at https://tinyurl.com/47npdb8v from Leagle.com. JMK SUB SHOP: Does not Properly pay Workers, Mercedes Says ---------------------------------------------------------- JUAN ELIAS MERCEDES, individually and on behalf of the collective and class members, Plaintiff v. JMK SUB SHOP, INC., MDK SUB SHOP, INC., JEMIKA ENTERPRISES, INC., and JEFFREY KAPLOW personally, and individually, Defendants, Case No. 1:22-cv-08260 (S.D.N.Y., Sept. 27, 2022) arises from the Defendants' willful and systemic wage violations, resulting in deliberate underpayment of wages to Plaintiff and the Collective and Class members in violation of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff alleges that Defendants willfully violated the FLSA and NYLL by (i) failing to pay the minimum wage; (ii) failing to pay overtime premium pay; (iii) failing to provide meal break; (iv) failing to pay spread-of-hour pay; (v) failing to provide the Notice of Acknowledgement of Payrate and Payday; (vi) failing to provide an accurate wage statement; and (vii) improperly retaining gratuities meant for the employees. Plaintiff Mercedes commenced employment at Subway in January 2020, as a sandwich preparer. His employment ended in March 2022, shortly after his complaints of the wage violations of the Defendants. JMK and Kaplow own and operate the Subway Restaurant, a quick-service restaurant located in New York.[BN] The Plaintiff is represented by: Emre Polat, Esq. EMRE POLAT, PLLC 45 Broadway, Suite 1420 New York, NY 10006 Telephone: (212) 480-4500 JPMORGAN CHASE: Chaidez Sues Over Illegal Voice Print Collection ---------------------------------------------------------------- ALFREDO CHAIDEZ, individually and on behalf of all others similarly situated, Plaintiff v. JPMORGAN CHASE & CO., JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, MICROSOFT CORPORATION, and NUANCE COMMUNICATIONS, INC., Defendants, Case No. 2:22-cv-06986-PA-AS (C.D. Cal., Sept. 27, 2022) is a class action brought by the Plaintiff to prevent Defendants from further violating the privacy rights of California residents, and to recover statutory damages for Defendants' recording and examination of individuals' voice prints and/or other voice stress patterns without pursuing express written consent, in contravention of the California Invasion of Privacy Act. Defendant JPMorgan Chase Bank, National Association, a subsidiary of Defendant JPMorgan Chase & Co., has integrated a voice biometric security solution provided by Defendant Nuance Communications, Inc., a subsidiary of Defendant Microsoft Corporation, called Gatekeeper, to detect and protect against instances of banking fraud. Nuance's Gatekeeper technology is used by numerous entities, including Chase Bank, to monitor channels for voice-based interactions. According to the complaint, the Chase Bank Contact Center's implementation of Gatekeeper records and examines customers' voice prints and/or other voice stress patterns to ascertain the truth or falsity of statements that they make. For example, the Contact Center utilizes Gatekeeper to assess statements made by customers as to establish their identity (i.e., stating that it is they who are the one calling), thus verifying users. The Defendants never procured the express consent -- written or otherwise -- of any person who interacted with Chase Bank's Contact Center, prior to recording and examining Californian's voice prints and/or other voice stress patterns, says the suit. Through their use of Gatekeeper, Defendants Chase Bank and Microsoft Corporation have failed to comply with numerous provisions of the CIPA, says the complaint. JPMorgan Chase & Co. is an American multinational investment bank and financial services holding company headquartered in New York City and incorporated in Delaware.[BN] The Plaintiff is represented by: Neal J. Deckant, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ndeckant@bursor.com KROGER CO: Extension of Class Status Bid Filing Sought ------------------------------------------------------ In the class action lawsuit captioned as ELISHA SOLANO, KATHLEEN ZACH, CAROLYN ESPINOZA, and DENISE CONROY, individually and on, behalf of other customers, v. THE KROGER CO., dba FRED MEYER, Case No. 3:18-cv-01488-AR (D. Or.), the Parties ask the Court to enter an order under Fed. R. Civ. P. 6(b) and LR 16-3 extending deadlines previously set in the Court's August 30, 2022, Scheduling Order. The parties propose to: (1) allow depositions of third-parties Citrus World, Inc. and Pactiv Evergreen and (only if ordered by the Court) a third continued deposition of Kroger's 30(b)(6) witness to take place by November 3, 2022 (notwithstanding the present class certification discovery deadline of October 4, 2022), and (2) extend the deadline for Plaintiffs' Motion for Class Certification from November 1, 2022 to December 1, 2022, to provide sufficient time after the third-party depositions to file the motion. The Court previously granted a similar extension request as to these two remaining discovery issues but, as explained below, the third parties have requested more time for their depositions. Kroger is an American retail company that operates supermarkets and multi-department stores throughout the United States. A copy of the Parties motion dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3M4wUMM at no extra charge.[CC] The Defendant is represented by Kevin H. Kono, Esq. Frederick B. Burnside, Esq. Jacob M. Harper, Esq. James H. Moon, Esq. Peter Bae, Esq. DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, OR 97201-5610 Telephone: (503) 241-2300 E-mail: kevinkono@dwt.com fredburnside@dwt.com jharper@dwt.com jamesmoon@dwt.com peterbae@dwt.com - and - Daniel J. Nichols, Esq. JURISLAW LLP Three Centerpointe Drive, Suite 160 Lake Owego, OR 97035 Telephone: (503) 334-0611 E-mail: dan@jurislawyer.com - and - Michael Fuller, Esq. OLSENDAINES US Bancorp Tower 111 SW 5th Ave., Suite 3150 Portland, Oregon 97204 Direct 503-222-2000 E-mail: michael@underdoglawyer.com - and - Kelly D. Jones, Esq. Telephone (503) 847-4329 E-mail: kellydonovanjones@gmail.com - and - Young Walgenkim, Esq. Telephone (503) 383-1496 E-mail: young@hansonwalgenkim.com L&G CONSTRUCTION: Fails to Pay Overtime Wages, Griffin Suit Says ---------------------------------------------------------------- NICHOLAS GRIFFIN, individually and on behalf of himself and others similarly situated, Plaintiff v. L&G CONSTRUCTION, INC. and LEONARD ARNOLD, individually, Defendants, Case No. 3:22-cv-00755 (M.D. Tenn., Sept. 27, 2022) is brought against the Defendants as a collective action under the Fair Labor Standards Act to recover unpaid overtime compensation owed to Plaintiff and class members. Mr. Griffin was employed and worked for Defendants as an hourly-paid employee. He asserts that Defendants did not compensate him and those similarly situated at the applicable overtime rates of pay for all hours performed over 40 within weekly pay periods during all times material. L&G Construction, Inc. owns and operates a construction company in Davidson County, Tennessee.[BN] The Plaintiff is represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. Robert E. Morelli, III, Esq. JACKSON SHIELDS YEISER HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 759-1745 E-mail: gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com LAKELAND WEST: Diogu Sues Over Illegal Debt Collection Practices ---------------------------------------------------------------- DIOGU KALU DIOGU II, LL.M., as next friends of DKKD III and NMKD, minor children; DIOGU KALU DIOGU II, LL.M., on behalf of themselves and all others similarly situated, Plaintiffs v. LAKELAND WEST CAPITAL 41, LLC, and ADAM MCKEE; MR. JEFF LEVA; MS. SANDY DASIGENIS; LILLIAN POETKER; dba FORECLOSURE NETWORK OF TEXAS; and KIM E. LEWINSKI, ESQ; BRADLEY E. RAUCH, ESQ; MICHAEL J. DURRSCHMIDT, ESQ; and HIRSCH & WESTHEIMER, PC; and EVA SHAFIR ENGLEHART and MARC DOUGLAS MYERS and KEVIN M. EPSTEIN UNITED STATES TRUSTEE, Defendants, Case No. 4:22-cv-03299 (S.D. Tex., Sept. 27, 2022) is a class action brought by Plaintiffs, individually and demands a trial by jury, for the illegal practices of the Defendants who used unfair, unconscionable, false, deceptive, and misleading practices, and other illegal practices, in attempting to collect alleged debts in violation of the Fair Debt Collection Practices Act and the Texas Debt Collection Act. The Plaintiffs brought this lawsuit against the Defendants for filing a fraudulent and misrepresentation of the tolling agreement between Diogu and Veritex Community Bank, as part of the document of the proof of claim. They assert that the Defendants violated the FDCPA by falsely suggesting that the alleged debt is enforceable and collectible notwithstanding the fact it failed to disclose the status of the alleged debt as time-barred and unenforceable. They also allege that the Defendants failed to follow the relevant regulations regarding providing consumers an accurate and detailed description of the amount of a debt serving as the basis of its collection efforts. Lakeland West Capital 41, LLC is a third-party debt collector specializing in the collection of debts related to defaulted home mortgages and other consumer debts.[BN] The Plaintiffs are represented by: Diogu Kalu Diogu II, Esq. DIOGU LAW FIRM PLLC 4726 Gainsborough Drive Brookshire, TX 77423 Telephone: (713) 791-3225 Facsimile: (832) 408-7611 E-mail: diogu.diogu.law.firm@gmail.com MADISON SECURITY: Court Denies Bid to Strike Jackson's Class Claims ------------------------------------------------------------------- In the case, ANTONY JACKSON, Plaintiff v. MADISON SECURITY GROUP, INC., Defendant, Case No. 21-cv-8721 (JGK) (S.D.N.Y.), Judge John G. Koeltl of the U.S. District Court for the Southern District of New York denies the Defendant's motion to dismiss and to strike the class allegations without prejudice. Mr. Jackson brought this putative class action against Madison for alleged violations of New York Labor Law Section 191, which provides that all "manual workers" in New York "shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned." The Plaintiff alleges subject-matter jurisdiction under the Class Action Fairness Act of 2005, 28 U.S.C. Section 1332(d) ("CAFA"). In the amended complaint, the Plaintiff alleges that he worked for Madison as a security guard in New York, that he performed enough physical labor to qualify as a "manual worker," and that it improperly paid him and other similarly situated security guards on a biweekly rather than weekly basis, resulting in underpayment. He seeks damages on behalf of a class presently defined as all "persons who work or have worked as Security Guards for Madison Security Group, Inc. in New York between Oct. 15, 2015, and the date of final judgment in this matter." The Defendant now moves to dismiss the amended complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). It also moves to strike the Plaintiff's class allegations "pursuant to Rule 12(b)(6), Rule 12(f), and Rule 23(d)(1)(D)." The Plaintiff is a resident of New York. From June 2019 through May 2021, the Plaintiff worked for Madison as a security guard at various New York City locations. He alleges that the proposed class of New York-based security guards, as defined in the amended complaint, contains over 100 members, and that the amount in controversy "exceeds the sum or value of $5 million, exclusive of interest and costs." The Defendant is a provider of security services and a "business corporation organized and existing under the laws of Massachusetts." It maintains offices in several states, including Massachusetts and New York. Publicly available documents attached to the amended complaint indicate that on at least several occasions, the Defendant has identified a Massachusetts address as the site of its "principal business office" or "headquarters." For example, the Defendant's website lists the address for its "Corporate Headquarters" as "31 Kirk Street, Lowell, MA 01852." In corporate filings submitted in at least four states, it provided a Massachusetts address for the location of its principal business office. The Plaintiff's exhibits also identify Madison officers and employees who bear titles such as "president," "treasurer," "vice president," and "chief financial officer," and who appear to have Massachusetts addresses. Based on this publicly available information, the Plaintiff alleges that the Defendant "maintains its principal place of business in Massachusetts," the same state where it is incorporated. At issue is CAFA's "local controversy exception," which requires the Court to decline jurisdiction over a class action where, as relevant in the case, (1) "greater than two-thirds" of the putative class members are "citizens of the State in which the action was originally filed," (2) at least one defendant from whom significant relief is sought by members of the plaintiff class and whose alleged conduct forms a significant basis for the asserted claims is also "a citizen of the State in which the action was originally filed," and (3) principal injuries resulting from the alleged conduct "were incurred in the State in which the action was originally filed." The Defendant does not dispute that the allegations in the Plaintiff's amended complaint satisfy the threshold requirements for jurisdiction under CAFA. Rather, it argues that the local controversy exception applies because the Defendant's principal place of business is in New York, the state in which the action was originally filed, where the putative class members allegedly reside, and where the other requirements of the local controversy exception are satisfied. The Plaintiff responds that the Defendant has not met the burden of showing that the CAFA exception applies because its true "nerve center" is in Massachusetts. He also requests limited discovery to determine whether the Defendant's principal place of business is in Massachusetts, as he alleges, or in New York, as the Defendant now contends. To support its position that the case falls within the local controversy exception, the Defendant submits the affidavits of senior Madison officers Timothy Grover and Joseph Lizardi, both of whom attest that the "nerve center" of the Defendant is an office located in the Bronx, New York. Both affidavits state that Grover, Lizardi, and senior Madison officer Richard Zimmer direct the Defendant's business operations, and that "all high-level decision making" and "all aspects of company-wide human resources," among other essential management functions, take place in the New York office. Meanwhile, the Plaintiff points out that the Defendant has been on notice of the lawsuit since November 2021, but that it submitted corporate filings as recently as January 2022 in which it provided a Massachusetts address for its "principal business office." Those filings were signed by Madison's president Joan Marie Fiore, whose name is also affiliated with an address in Massachusetts. The other officers mentioned in some of these filings have addresses in Massachusetts as well. While the Defendant claims that the "principal office" location in these filings was mistaken, it does not appear to dispute the Massachusetts addresses listed for the individual officers. In light of the information just described, Judge Koeltl opines that issues of fact preclude a finding as to whether the Defendant's principal place of business is located in New York or in Massachusetts. While the Grover and Lizardi affidavits detail the high-level corporate activities occurring in New York, they provide little clarity as to whether other high-ranking Madison employees continue to operate somewhere in Massachusetts, where the Defendant concededly stationed its original principal place of business. In short, the current record does not resolve the issue of whether the Defendant's "nerve center" is indeed in New York, rather than in Massachusetts. Thus, it cannot be determined whether CAFA's "local controversy exception" applies. Accordingly, the Defendant's motion to dismiss for lack of subject-matter jurisdiction is denied without prejudice to renewal after a period of expedited discovery limited to the issue of its principal place of business. The Defendant also moves to strike or dismiss the Plaintiff's class allegations under Rules 23(d)(1)(D), 12(f), and 12(b)(6). In support of the motion, it argues that the Plaintiff cannot satisfy Rule 23's "commonality" and "predominance" requirements for class certification, and that the Plaintiff's proposed class definition is overbroad. The Plaintiff responds that any determination regarding the sufficiency of the class allegations would be premature. Judge Koeltl states that in general, motions to strike class allegations are strongly disfavored because they require "a reviewing court to preemptively terminate the class aspects of litigation, solely on the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification." In any event, if he were to dismiss the Plaintiff's class allegations at this time, the Plaintiff would be given an opportunity to replead. Thus, the motion to strike the class allegations is denied without prejudice to renewal upon the filing of either a second amended class-action complaint or a motion for class certification, assuming the Court has not yet dismissed the action for lack of subject-matter jurisdiction. Judge Koeltl has considered all of the arguments of the parties. To the extent not addressed, he says the arguments are either moot or without merit. For the foregoing reasons, the Plaintiff is permitted to take expedited discovery limited to the question of the Defendant's principal place of business. Such expedited discovery is to be completed within 60 days from the date of the Order. At the conclusion of the 60-day period, the Court will hold an evidentiary hearing to determine the principal place of business of the defendant. The Defendant's Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction is denied without prejudice to renewal after the evidentiary hearing. Its motion to strike the class allegations is likewise denied without prejudice to renewal upon the filing of either a second amended class-action complaint or a motion for class certification. A full-text copy of the Court's Sept. 28, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/yckwekpf from Leagle.com. MARATHON OIL: Kunneman Seeks to Recover Unpaid Gas Royalties ------------------------------------------------------------ Kunneman Properties LLC, DJM Family, LLC, Royse Family, L.L.C., on behalf of themselves and all others similarly situated, Plaintiffs v. Marathon Oil Company, Defendant, Case No. 6:22-cv-00274-KEW (E.D. Okla., Sept. 27, 2022) alleges that the Defendant breached lease terms, including implied covenants, by its actions and/or inactions in underpaying royalty or not paying royalty on all products sold from the gas stream or all products used off leased premises. Marathon Oil Company is in the business of producing and marketing oil-and-gas and constituent products from the wells in which Class members hold interests. Plaintiff Kunneman Properties LLC owns royalty interests in Marathon operated wells that produce gas. The Plaintiffs and the Class bring claims against Marathon concerning its actual, knowing, and willful underpayment or non-payment of royalties on oil-and-gas proceeds from wells through improper accounting methods (such as not paying on the starting price for gas products but instead taking improper deductions) and by failing to account for and pay royalties.[BN] The Plaintiffs are represented by: Reagan E. Bradford, Esq. Ryan K. Wilson, Esq. BRADFORD & WILSON PLLC 431 W. Main Street, Suite D Oklahoma City, OK 73102 Telephone: (405) 698-2770 Facsimile: (405) 234-5506 E-mail: reagan@bradwil.com ryan@bradwil.com - and - Rex A. Sharp, Esq. Ryan C. Hudson, Esq. Scott B. Goodger, Esq. SHARP LAW, LLP 5301 W. 75th Street Prairie Village, KS 66208 Telephone: (913) 901-0505 Facsimile: (913) 901-0419 E-mail: rsharp@midwest-law.com rhudson@midwest-law.com sgoodger@midwest-law.com MAZDA MOTOR: Hearing on Bid to Certify Class Extended to Oct. 14 ---------------------------------------------------------------- In the class action lawsuit captioned as Terry Sonneveldt, et al., v. MAZDA MOTOR OF AMERICA, INC. D/B/A MAZDA NORTH AMERICAN OPERATIONS and MAZDA MOTOR CORPORATION, Case No. 8:19-cv-01298-JLS-KES (C.D. Cal.), the Hon. Judge Josephine L. Staton entered an order continuing hearing on plaintiffs' motion to certify class and defendants' motions to exclude. -- The hearing on Plaintiffs' motion to certify class and the Defendants' motion to exclude the testimony of Steven Gaskin and Colin Weir and Motion to Exclude the Report and Testimony of Christopher White, Ph.Dis further continued from Friday, October 7, 2022 to October 14, 2022. Mazda Motor of America, Inc., doing business as Mazda North American Operations Inc., retails automobile vehicles. A copy of the Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3SMWeJa at no extra charge.[CC] MEDICA SERVICES: Cobb Balks at Customer Service Reps' Unpaid Wages ------------------------------------------------------------------ CARRIE COBB, JAMICA CRAWFORD, and LAVETTE JONES, individually, and on behalf of others similarly situated, Plaintiffs v. MEDICA SERVICES COMPANY LLC, a Minnesota Limited Liability Company, Defendant, Case No. 0:22-cv-02364 (D. Minn., Sept. 27, 2022) is a collective and class action arising from Defendant's willful violations of the Fair Labor Standards Act, the Minnesota Fair Labor Standards Act, the Minnesota Payment of Wages Act, and for common law claims of breach of contract or unjust enrichment. The complaint alleges that the Defendant failed to pay overtime wages; timely pay wages; keep accurate records, and breached their agreement with the Plaintiffs and the Minnesota Class to pay for all hours worked at the agreed upon rate. The Plaintiffs worked for the Defendant as remote customer service representatives in Oklahoma within the last three years. Medica Services Company LLC offers individual and family, employer-provided, Medicaid, and Medicare health insurance plans in several states, including Minnesota, Iowa, Kansas, Missouri, Nebraska, North Dakota, South Dakota, and Wisconsin.[BN] The Plaintiffs are represented by: Rolf T. Fiebiger, Esq. FIEBIGER LAW LLC 6800 France Ave. S., Ste. 190 Edina, MN 55435 Telephone: (612) 888-6084 E-mail: rolf@fiebigerlaw.com - and - Charles R. Ash, IV, Esq. ASH LAW, PLLC 402 W Liberty Street Ann Arbor, MI 48178 Telephone: (734) 234-5583 E-mail: cash@nationalwagelaw.com - and - Andrew R. Frisch, Esq. MORGAN & MORGAN, P.A. 8151 Peters Road, 4th Floor Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3013 E-mail: AFrisch@forthepeople.com - and - Oscar Rodriguez, Esq. HOOPER HATHAWAY, P.C. 126 Main St Ann Arbor, MI 48104-1903 Telephone: (734) 662-4426 E-mail: orod@hooperhathaway.com METROPOLITAN TRANSPO: Forsee Seeks to Certify Settlement Class -------------------------------------------------------------- In the class action lawsuit captioned as Forsee, et al., v. Metropolitan Transportation Authority, et al., Case No. 1:19-cv-04406-ER (S.D.N.Y.), the Plaintiffs ask the Court to enter an order: 1. certifying the proposed Settlement Class; 2. appointing them as Class representatives; 3. appointing their counsel as Class Counsel; 4. preliminarily approving the proposed Settlement Agreement; and 5. approving the proposed notices and proposed schedule for disseminating the notice and seeking Final Approval. The Plaintiffs include JESSICA DE LA ROSA, JEAN RYAN, BRONX INDEPENDENT LIVING SERVICES, BROOKLYN CENTER FOR INDEPENDENCE OF THE DISABLED, CENTER FOR INDEPENDENCE OF THE DISABLED, NEW YORK, DISABLED IN ACTION OF METROPOLITAN NEW YORK, HARLEM INDEPENDENT LIVING CENTER, on behalf of themselves and all others similarly situated. The Defendants include METROPOLITAN TRANSPORTATION AUTHORITY, JANNO LIEBER, in his official capacity as chair and chief executive officer of the Metropolitan Transportation Authority, NEW YORK CITY TRANSIT AUTHORITY, RICHARD DAVEY, in his official capacity as of the New York City Transit Authority, and the CITY OF NEW YORK. The Metropolitan Transportation Authority is a public benefit corporation responsible for public transportation in the New York City metropolitan area of the U.S. state of New York. A copy of the Plaintiffs' motion to certify class dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3yambuj at no extra charge.[CC] The Plaintiffs are represented by: Chloe Holzman, Esq. Rebecca Rodgers, Esq. Jelena Kolic, Esq. Stuart Seaborn, Esq. DISABILITY RIGHTS ADVOCATES 655 Third Avenue, 14th Floor New York, NY 10017 Telephone: (212) 644-8644 Facsimile: (212) 644-8636 E-mail: cholzman@dralegal.org rrodgers@dralegal.org jkolic@dralegal.org sseaborn@dralegal.org - and - Daniel L. Brown, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP 30 Rockefeller Plaza, 39th Floor New York, NY 10112 Telephone: (212) 634-3095 Facsimile: (212) 653-8701 E-mail: dlbrown@sheppardmullin.com MULTNOMAH COUNTY, OR: Filing of Class Cert. Bid Due April 26, 2023 ------------------------------------------------------------------ In the class action lawsuit captioned as CLARK et al., v. MULTNOMAH COUNTY, et al., Case No. 3:21-cv-00501 (D. Or.), the Hon. Judge Ann L. Aiken entered an order on motion for extension of discovery & PTO deadlines as follows: -- Motion for class certification is due by April 26, 2023. -- Amended pleadings are due 45 days following the Court's order on plaintiffs' motion for class certification. -- Fact discovery material to individual claims is to be completed 120 days following the Court's order on plaintiffs' motion for class certification. -- Dispositive motions are due 45 days following the close of fact discovery material to individual claims. ADR report is due 60 days following the Court's ruling on any dispositive motions. The nature of suit states Prisoner Petitions -- Habeas Corpus --- Prison Condition involving Civil Rights. Multnomah County is one of the 36 counties in the U.S. state of Oregon.[CC] NATIONAL RIFLE: Amended Case Mng't Order Entered in Dell'Aquilla ---------------------------------------------------------------- In the class action lawsuit captioned as DAVID DELL'AQUILLA, LORANNDA BORJA, TODD CHESNEY, AND BRENT WEBER, and on behalf of Themselves and all others similarly situated, v. NATIONAL RIFLE ASSOCIATION OF AMERICA, Case No. 3:19-cv-00679 (M.D. Tennn.), the Hon. Judge Jeffery S. Frensley entered an amended case management order as follows: -- The Parties shall file a joint December 1, 2022 status report regarding the progress of discovery by: -- The Plaintiffs shall file their March 27, 2023 motion for class certification on or before: -- The Defendant shall respond by: April 28, 2023 -- The Plaintiff shall reply by: May 12, 2023 A copy of the Court's order dated Sept. 26, 2022 is available from PacerMonitor.com at https://bit.ly/3Sr1Ngt at no extra charge.[CC] NEW YORK: Farrell Petitions for S.C. Review in Mask Mandate Suit ---------------------------------------------------------------- MARIE FARRELL, et al. filed on September 8, 2022, a petition for writ of certiorari - which was assigned Case No. 22-241 - asking the U.S. Supreme Court to review the judgment of the United States Court of Appeals for the Second Circuit in the case captioned as Marie Farrell, et al., Petitioners vs. Kathleen Hochul, Governor of New York, et al., Respondents, Case No. 22-517. Marie Farrell, individually and on behalf of E.F., a student of New York City, and all others similarly situated, filed a class action suit against the Respondents for violations of the Individuals with Disabilities Education Act (IDEA), the Ninth and Fourteenth Amendments of the United States Constitution, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 (ADA) following the Respondents' enactment of the school mask mandate in New York. The Petitioners asserted that the Respondents' implementation of a one-size-fits-all mask mandate without exemption or accommodation for disability status violates the law. On February 23, 2022, the district court denied the Petitioners' motion for a preliminary injunction and dismissed the complaint. The Petitioners appealed the district court's decision to the U.S. Court of Appeals for the Second Circuit and requested an Order from the Second Circuit enjoining the Respondents from implementing the school mask mandate while the appeal is pending. Specifically, the Petitioners requested the Second Circuit: (1) enjoin Respondents from enforcing the school mask mandate; and (2) enjoin Respondents from reissuing the school mask mandate without first appearing in the district court to show cause why the mandate should be reissued, and providing relevant, recent statistics, management plans, and information; and showing all steps taken to mitigate injury to vulnerable populations, including students with disabilities. On May 9, 2022, the Second Circuit denied the Petitioners' motion for an injunction pending appeal. On June 1, 2022, the Second Circuit denied Petitioners' motion for rehearing/reconsideration en blanc. [BN] Plaintiffs-Petitioners MARIE FARRELL, individually and on behalf of E.F., a student of New York City, and all others similarly situated, are represented by: Rory J. Bellantoni, Esq. BRAIN INJURY RIGHTS GROUP, LTD. 300 East 95th Street, Suite 130 New York, NY 10128 E-mail: rory@pabilaw.org NORTH CAROLINA: Court Dismisses Bowens v. Ishee, MVCI & Officers ---------------------------------------------------------------- In the case, DARIOUS BOWENS, Plaintiff v. TODD ISHEE, et al., Defendants, Civil Case No. 1:22-cv-00153-MR (W.D.N.C.), Judge Martin Reidinger of the U.S. District Court for the Western District of North Carolina, Asheville Division, dismisses the Complaint pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i)-(iii). The matter is before the Court on initial review of the pro se Complaint. The Plaintiff is proceeding in forma pauperis. The pro se incarcerated Plaintiff filed this civil rights action pursuant to 42 U.S.C. Section 1983 addressing incidents that allegedly occurred at the Mountain View Correctional Institution (MVCI), where he is presently incarcerated. He names as Defendants: Mike Slagle, the MVCI warden; Dexter Gibbs, the MVCI assistant warden; Eddie M. Buffaloe, the North Carolina Department of Public Safety (NCDPS) director of prisons; and Todd Ishee, the NCDPS secretary. The Plaintiff claims that the Defendants have violated his First, Eighth, and Fourteenth Amendment rights as follows: "Around January 25, 2022, the Defendants issued an institutional lockdown 23 hours a day. Now it is currently 21 hours a day. Different people say it's because this prison is short of officers. This long lockdown has hurt me mentally, physically -- lack of exercise, and the defendants failed to provide inmates proper notice of the lockdown. Also we have not been getting religious services. . . . It seems like since being on lockdown, people who work here do not do there jobs. There delay in sickcalls, not enough outside recreation, etc." As injury, the Plaintiff claims that his "mental health has gotten worse" due to the lockdown and lack of religious services, and that he been "unable to physically exercise, etc." He seeks injunctive relief and damages. Because the Plaintiff is proceeding in forma pauperis, Judge Reidinger must review the Complaint to determine whether it is subject to dismissal on the grounds that it is "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." In its frivolity review, a court must determine whether a complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Furthermore, a pro se complaint must be construed liberally. However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in his complaint which set forth a claim that is cognizable under federal law. To state a claim under Section 1983, a plaintiff must allege that he was "deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." First, the Plaintiff appears to seek relief on behalf of himself and other MVCI inmates. As a pro se inmate, he is not qualified to prosecute a class action or assert a claim on behalf of others. Therefore, to the extent that he attempts to assert claims on behalf of his family and other inmates, they are dismissed. The Plaintiff purports to sue Defendants, who are state officials, in their individual and official capacities. However, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Because a state is not a "person" under Section 1983, state officials acting in their official capacities cannot be sued for damages thereunder. Furthermore, the Eleventh Amendment bars suits for monetary damages against the State of North Carolina and its various agencies. As such, the Plaintiff's claims against the Defendants in their official capacities for damages do not survive initial review and will be dismissed. Second, Judge Reidinger finds the Plaintiff's allegations about facility lockdown too vague and conclusory to state an Eighth Amendment violation. He says the conditions that the Plaintiff has identified are not objectively serious enough, and he has failed to adequately allege that any Defendant knew of, and was deliberately indifferent to, a substantial risk of serious harm to him. Moreover, his allusions to worsening "mental health" and lack of exercise are too vague and conclusory to plausibly demonstrate that he suffered any serious or significant mental or emotional injury as a result of the policy at issue. Accordingly, the Plaintiff's Eighth Amendment claim regarding the conditions of his confinement is dismissed without prejudice. Third, Judge Reidinger finds that the Plaintiff has failed to state a claim for deliberate indifference to a serious medical or psychological need. His vague references to delays in sick calls and his worsening "mental health" fail to demonstrate the existence of any serious medical or mental health need. Nor does he plausibly allege that any Defendant was aware of, and was deliberately indifferent to, such a need. Therefore, the Plaintiff's claim for deliberate indifference to a serious medical or psychological need is dismissed without prejudice. Fourth, Judge Reidinger holds that the Plaintiff fails to allege that he has a sincere religious belief, or that the Defendants have substantially burdened such a belief. His bare assertion that he has not been able to have religious services since the lockdown began is insufficient to state a First Amendment claim. Accordingly, the Plaintiff's religious exercise claim is dismissed without prejudice. Finally, Judge Reidinger determines that the Plaintiff's allegation that the Defendants failed to provide him with "proper notice" about the lockdown fails to state a due process claim. He has failed to adequately allege that he had any liberty interest in avoiding the conditions of which he presently complains such that any process was due. Therefore, the Plaintiff's due process claim is dismissed without prejudice. In sum, Judge Reidinger concludes that the Plaintiff has failed to state a claim against any Defendant, and the Complaint is dismissed. The Plaintiff's claims for damages against the Defendants in their official capacities and the claims he asserts on behalf of others are dismissed with prejudice, and the remaining claims are dismissed without prejudice. Judge Reidinger allows the Plaintiff 30 days to amend his Complaint, if he so chooses, to correct the deficiencies identified in this Order and to otherwise properly state a claim upon which relief can be granted. Any Amended Complaint will be subject to all timeliness and procedural requirements and will supersede the Complaint. Piecemeal amendment will not be allowed. Should the Plaintiff fail to timely file an Amended Complaint in accordance with the Order, the action will be dismissed without prejudice and without further notice to the Plaintiff. A full-text copy of the Court's Sept. 28, 2022 Order is available at https://tinyurl.com/mrsxhhs9 from Leagle.com. OREGON: Russell's Bid to Intervene in Wyatt B. v. Brown Denied -------------------------------------------------------------- In the case, WYATT B., et al., Plaintiffs v. KATE BROWN, et al., Defendants, Civ. No. 6:19-cv-00556-AA (D. Or.), Judge Ann Aiken of the U.S. District Court for the District of Oregon, Eugene Division, denies Putative Intervenor Steven J. Russell's Motion to Intervene and to Modify Protective Order and Obtain Discovery. The class action comes before the Court on a Motion to Intervene and to Modify Protective Order and Obtain Discovery. Intervenor Russell, as next friend of Y.G., seeks leave to intervene in the action for the limited purpose of obtaining discovery previously exchanged between the parties in the case. He also seeks modification of the protective order in the case to allow him and his attorneys to receive and review discovery previously exchanged between the parties in the action. The Intervenor asserts that Y.G. is a member of the certified class and multiple subclasses in the case. In addition, Y.G. is the plaintiff in an ongoing civil action, Y.G. v. Oregon et al., Case No. 3:19-cv-01870-AR, which concerns his placement at an out-of-state facility in Utah while in the care of DHS. Y.G. v. Oregon is currently pending before Magistrate Judge Armistead in the Portland Division. The Intervenor seeks to discover information disclosed in discovery in this case concerning the Utah facility, Oregon's decision to stop placing children at out-of-state facilities, and any documents related to Y.G. specifically. Judge Aiken notes that discovery is ongoing in Y.G. v. Oregon. She opines that the information the Intervenor seeks in his motion is available to him through ordinary discovery requests in that case. The most recent filings from him indicate that substantial discovery has already taken place and considerable materials have been produced to Intervenor in the Y.G. case. Permissive intervention is not necessary to meet the Intervenor's needs under these circumstances and only threatens to complicate the case with matters that are more efficiently resolved by Judge Armistead as part of the Y.G. case. The Intervenor's motion is, therefore, denied. A full-text copy of the Court's Sept. 28, 2022 Opinion & Order is available at https://tinyurl.com/2p9b3cnw from Leagle.com. PELHAM TRANSPORTATION: Burleson Sues Over Unpaid Overtime Wages --------------------------------------------------------------- CHRISTOPHER BURLESON, individually and on behalf of all others similarly situated, Plaintiff v. PELHAM TRANSPORTATION CORPORATION and THEODORE DEJOURNETTE, JR., Defendants, Case No. 1:22-cv-816 (M.D.N.C., Sept. 27, 2022) is a collective action brought by Plaintiff, individually and on behalf of all others similarly situated, against Defendant for violations of the overtime provisions of the Fair Labor Standards Act. The Plaintiff was employed by the Defendant as a driver from May of 2019 until November of 2019, and as a scheduler from November of 2019 until April of 2022. Pelham Transportation Corporation is a bus charter in Reidsville, North Carolina.[BN] The Plaintiff is represented by: Janelle L. Cline, Esq. CLINE LAW GROUP, PLLC 6329 Oleander Drive Wilmington, NC 28403 Telephone: (910) 661-2012 Facsimile: (910) 338-0557 E-mail: janelle.cline@clinelawgroupnc.com - and - Joanie Harp, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: joanie@sanfordlawfirm.com josh@sanfordlawfirm.com PHARMACEUTICAL PRODUCT: Final Order & Judgment Entered in Kendall ----------------------------------------------------------------- In the case, KARL KENDALL, SUZANNE RAINEY and VINCENZO PERNICE, individually and on behalf of those similarly situated, Plaintiffs v. PHARMACEUTICAL PRODUCT DEVELOPMENT, LLC, BOARD OF DIRECTORS OF PHARMACEUTICAL PRODUCT DEVELOPMENT, LLC, THE BENEFITS ADMINISTRATIVE COMMITTEE, and JOHN DOES 1-30, Defendants, Civil Action No. 7:20-cv-00071-D (E.D.N.C.), Judge James C. Dever, III, of the U.S. District Court for the Eastern District of North Carolina enters a Final Order and Judgment. The Action came before the Court for hearing on Sept. 28, 2022, to determine the Fairness of the proposed Settlement presented to the Court and the subject of the Court's Order Granting Preliminary Approval of Class Action Settlement, Preliminarily Certifying a Class for Settlement Purposes, Approving Form and Manner of Settlement Notice, and Setting Date for a Fairness Hearing. Due notice has been given and the Court has been fully advised in the premises. For the sole purpose of settling and resolving the Action, Judge Dever certifies the Action as a class action pursuant to Rules 23(a) and (b)(1) of the Federal Rules of Civil Procedure. The Settlement Class is defined as: All persons who participated in the Plan at any time during the Class Period, including any Beneficiary of a deceased person who participated in the Plan at any time during the Class Period, and any Alternate Payee of a person subject to a Qualified Domestic Relations Order who participated in the Plan at any time during the Class Period. Excluded from the Settlement Class are Defendants and their Beneficiaries. The Court appoints Named Plaintiffs Karl Kendall, Suzanne Rainey, and Vincenzo Pernice as the Class Representatives and Capozzi Adler, P.C., as the Class Counsel. The Court approves the Settlement and orders that the Settlement will be consummated and implemented in accordance with its terms and conditions. The Plan of Allocation is finally approved as fair, reasonable, and adequate. The Settlement Administrator will distribute the Net Settlement Amount in accordance with the Plan of Allocation and the Settlement Agreement. The Settlement Administrator will have final authority to determine the share of the Net Settlement Amount to be allocated to each Class Member in accordance with the Plan of Allocation approved by the Court. The Class Representatives, the Class Members, and the Plan acting individually or together, or in combination with others, are permanently and finally barred and enjoined from suing the Released Parties in any action or proceeding alleging any of the Released Claims. The operative complaint and all claims asserted therein in the Action are dismissed with prejudice and without costs to any of the Settling Parties and Released Parties other than as provided for in the Settlement Agreement. The Court will retain exclusive jurisdiction to resolve any disputes or challenges that may arise as to the performance of the Settlement Agreement or any challenges as to the performance, validity, interpretation, administration, enforcement, or enforceability of the Settlement Notice, Plan of Allocation, the Final Order and Judgment, or the Settlement Agreement or the termination of the Settlement Agreement. The Court will also retain exclusive jurisdiction and rule by separate Order with respect to all applications for awards of attorneys' fees and Case Contribution Awards to the Named Plaintiffs, and reimbursements of litigation costs, submitted pursuant to the Settlement Agreement. Within 21 calendar days following the issuance of all settlement payments to the Class Members as provided by the Plan of Allocation approved by the Court, the Settlement Administrator will prepare and provide to the Class Counsel and the Defense Counsel a list of each person who received a settlement payment or contribution from the Qualified Settlement Fund and the amount of such payment or contribution. Upon entry of the Order, all Settling Parties, the Settlement Class, and the Plan will be bound by the Settlement Agreement and the Final Order and Judgment. A full-text copy of the Court's Sept. 28, 2022 Final Approval Order & Judgment is available at https://tinyurl.com/5b5m97pm from Leagle.com. PORTFOLIO RECOVERY: $50K in Attorneys' Fees Awarded in Butler Suit ------------------------------------------------------------------ In the case, DELANIE BUTLER, et al., Plaintiffs v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant, Case No. 2:20-CV-861 JCM (EJY) (D. Nev.), Judge James C. Mahan of the U.S. District Court for the District of Nevada grants the Plaintiffs' motion for attorney's fees. Presently before the Court is Plaintiffs Delanie Butler and John Robinson's motion for attorney fees. The Defendant filed a notice of non-opposition. The instant motion arises from the settlement of a class action lawsuit brought under the Worker Adjustment and Retraining Notification ("WARN") act. The Defendant operated a call center in Henderson, Nevada. After closing the call center, the Plaintiffs brought the action on behalf of themselves and similarly situated employees for violation of the WARN act. The parties eventually settled the claims, and the court preliminarily approved that settlement on Jan. 25, 2022. After a fairness hearing, the Court issued a final order approving the settlement on Sept. 28, 2022. Pursuant to the settlement agreement, the Plaintiffs now bring this separate motion for attorney fees. Their motion and the settlement agreement contemplate a $50,000 award to the class counsel. This fee is based on a contingency agreement between the law firm and the class members which allowed for fees up to 33.333% of the total settlement or an hourly rate up to $500 per hour. Judge Mahan states that when calculating the amount of attorney fees to be awarded in litigation, the district court applies the lodestar method, multiplying the number of hours expended by a reasonable hourly rate." The reasonableness of the requested fee is then determined with reference to the 12 Kerr factors, citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975): (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 'undesirability' of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Following the lodestar method and considering the Kerr factors, Judge Mahan determines the requested fee is reasonable. He finds that the class counsel billed 114.1 hours on this matter. Subtracting necessary costs, such as the mediation fee, filing fee, and other expenses incurred, the class counsel requests $46,685 in actual fees. This equals 29.18% of the total settlement fund, or an hourly rate of $409.16, which is comparable to settlements in other cases. The total settlement represents a significant recovery on a complicated class action matter that included novel questions of law. Therefore, after considering the Kerr factors, Judge Mahan agrees with the parties that an award of $50,000 from the general settlement fund is reasonable under the circumstances. Accordingly, the Plaintiffs' motion for attorney's fees is granted. A full-text copy of the Court's Sept. 28, 2022 Order is available at https://tinyurl.com/586k8pu3 from Leagle.com. PROPETRO HOLDING: Ct. Initially Approves Settlement Class in Logan ------------------------------------------------------------------ In the class action lawsuit captioned as Logan, et al., v. PROPETRO HOLDING CORP., DALE REDMAN, JEFFREY SMITH, IAN DENHOLM, and SPENCER D. ARMOUR III, Case No. 7:19-cv-00217-DC (W.D. Tex.), the Hon. Judge David Counts entered an order preliminarily approving settlement and providing for notice as follows: 1. Proposed Class Certification for Settlement Purposes The Parties have proposed the certification of the following Settlement Class pursuant to Rules 23(a) and (b) (3) of the Federal Rules of Civil Procedure and solely for purposes of effectuating the proposed Settlement: "all persons and entities who (a) purchased or otherwise acquired ProPetro common stock on the open market during the period from March 17, 2017 to March 13, 2020, both dates inclusive, and were damaged thereby, or (b) purchased ProPetro common stock in or traceable to the Company’s March 17, 2017 Initial Public Offering (Settlement Class). Excluded from the Settlement Class are: Defendants; ProPetro's affiliates and subsidiaries; the Officers and directors of ProPetro and its subsidiaries and affiliates at all relevant times; members of the Immediate Family of any excluded person; heirs, successors and assigns of any excluded person or entity; and any entity in which any excluded person has or had a controlling interest. Also excluded from the Settlement Class are any persons and entities that submit a request for exclusion that is accepted by the Court. 2. Preliminary Approval of the Settlement The Court hereby preliminarily approves the Settlement, as embodied in the Stipulation, and finds, pursuant to Rule 23(e)(1)(B)(i) of the Federal Rules of Civil Procedure, that it will likely be able to finally approve the Settlement under Rule 23(e)(2) as being fair, reasonable, and adequate to the Settlement Class, subject to further consideration at the Settlement Hearing. 3. Settlement Administration Fees and Expenses All reasonable costs incurred in identifying Settlement Class Members and notifying them of the Settlement as well as in administering the Settlement shall be paid as set forth in the Stipulation without further order of the Court. 4. Settlement Fund The contents of the Settlement Fund held by Huntington National Bank (which the Court approves as the Escrow Agent) shall be deemed and considered to be in custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such time as they shall be distributed pursuant to the Stipulation and/or further order(s) of the Court. The Plaintiffs include NYKREDIT PORTEFOLJE ADMINISTRATION A/S, OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM, OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM, OKLAHOMA POLICE PENSION AND RETIREMENT SYSTEM, OKLAHOMA CITY EMPLOYEE RETIREMENT SYSTEM, POLICE AND FIRE RETIREMENT SYSTEM OF THE CITY OF DETROIT, Individually and on behalf of all others similarly situated. ProPetro, an oilfield services company, provides hydraulic fracturing and other related services. A copy of the Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3yaf59k at no extra charge.[CC] SEGA AMUSEMENTS: Muto Appeals Suit Dismissal to 9th Cir. -------------------------------------------------------- MARCELO MUTO is taking an appeal from court orders granting the Defendants' motion to dismiss his lawsuit entitled Marcelo Muto, Plaintiff, v. Sega Amusements International, Ltd., et al., Defendants, Case No. 5:21-cv-01161-JGB-KK, in the U.S. District Court for the Central District of California, and denying his motion for leave to file a second amended complaint. The Plaintiff alleges that contrary to the Defendants' marketing of their Key Master Machine as a game of skill, it is actually a game of chance since there is a requirement for a number of uses on the machine before it will allow someone to win. The Plaintiff, individually and on behalf of similarly situated users who paid money to play the Key Master Machine, brought this class action suit against the Defendants for claims of common law fraud, restitution/unjust enrichment, violations of California laws, and fraudulent concealment. On January 25, 2022, the Defendants filed a motion to dismiss the Plaintiff's first amended class action complaint, which the Court granted through an Order entered by Judge Jesus G. Bernal on June 2, 2022. On June 24, 2022, the Plaintiff filed a motion for leave to file a second amended complaint, which the Court denied on September 8, 2022. The appellate case is captioned Marcelo Muto v. Sega Amusements International, Ltd., et al., Case No. 22-55841, in the United States Court of Appeals for the Ninth Circuit, filed on September 14, 2022. The briefing schedule in the Appellate Case states that: -- Appellant Marcelo Muto Mediation Questionnaire was due on September 21, 2022; and -- Appellant Marcelo Muto opening brief is due on November 14, 2022. -- Appellees Play It! Amusements, Inc., Sega Amusements International, Ltd. and Sega Corporation answering brief is due on December 14, 2022; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiff-Appellant MARCELO MUTO, individually and on behalf of all others similarly situated, is represented by: Robert E. Kohn, Esq. FARUQI & FARUQI, LLP 1901 Avenue of the Stars, Suite 1060 Los Angeles, CA 90067 Telephone: (424) 256-2884 - and - Michael Liskow, Esq. CALCATERRA POLLACK LLP 1140 Avenue of the Americas New York, NY 10036-5803 Telephone: (212) 899-1761 - and - Timothy J. Peter, Esq. FARUQI & FARUQI, LLP 1617 John F. Kennedy Boulevard, Suite 1550 Philadelphia, PA 19103 Telephone: (215) 277-5770 Defendants-Appellees SEGA AMUSEMENTS INTERNATIONAL, LTD., et al., are represented by: Mariah Lorraine Brandt, Esq. PILLSBURY WINTHROP SHAW PITTMAN, LLP 725 S. Figueroa Street, 36th Floor Los Angeles, CA 90017 Telephone: (213) 488-7234 - and - Stephanie M. Coughlan, Esq. Nara Fusae, Esq. PILLSBURY WINTHROP SHAW PITTMAN, LLP 31 W. 52nd Street New York, NY 10019 Telephone: (212) 858-1628 - and - Pauleen Truong, Esq. PILLSBURY WINTHROP SHAW PITTMAN, LLP 725 S. Figueroa Street, 36th Floor Los Angeles, CA 90017 Telephone: (213) 488-3626 - and - Erica Achepohl, Esq. CHAPMAN & SPINGOLA, LLP 190 S. Lasalle Street, Suite 3850 Chicago, IL 60603 Telephone: (312) 606-8657 - and - Robert A. Chapman, Esq. CHAPMAN & SPINGOLA, LLP 190 S. Lasalle Street, Suite 3850 Chicago, IL 60603 Telephone: (312) 630-9202 - and - Alexis Paschedag Federico, Esq. Michael Roy Williams, Esq. BIENERT KATZMAN LITTRELL WILLIAMS, LLP 903 Calle Amanecer, Suite 350 San Clemente, CA 92673 Telephone: (949) 369-3700 SHERIDAN VILLAGE: Underpays Licensed Practical Nurses, Amos Says ---------------------------------------------------------------- TANSHELDA AMOS, individually and on behalf of all others similarly situated, Plaintiff v. SHERIDAN VILLAGE NURSING AND REHABILITATION CENTER, LLC, Defendant, Case No. 1:22-cv-05276 (N.D. Ill., Sept. 27, 2022) is a class action against the Defendant seeking all available remedies under the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act for failure to pay all overtime compensation owed to the Plaintiff and the class members. The Plaintiff was employed by the Defendant as a licensed practical nurse from approximately April 2018 to the present in Chicago, Illinois. Sheridan Village Nursing and Rehabilitation Center, LLC is a 191-bed, skilled nursing and psychiatric facility located in Chicago, Illinois.[BN] The Plaintiff is represented by: Katrina Carroll, Esq. LYNCH CARPENTER LLP 111 W. Washington Street, Suite 1240 Chicago, IL 60602 Telephone: (312) 750-1265 E-mail: katrina@lcllp.com - and - Camille Fundora Rodriguez, Esq. Alexandra K. Piazza, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4620 E-mail: crodriguez@bm.net apiazza@bm.net SIMPLER TIME: Toro Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against A Simpler Time, Inc. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. A Simpler Time, Inc., Case No. 1:22-cv-08311 (S.D.N.Y., Sept. 29, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. A Simpler Time -- https://www.asimplertime.com/ -- is an platform of art, decor, vintage signs, and gift products.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com SIRCHIE ACQUISITION: Court Grants in Part Bid to Dismiss Green Suit ------------------------------------------------------------------- In the case, JULIAN GREEN, EUGENE IVEY, JAMES P. MCKENNA, and LISA NEWMAN-POLK, individually and on behalf of all others similarly situated, Plaintiffs v. SIRCHIE ACQUISITION CO. LLC and PREMIER BIOTECH, INC., Defendants, Civil Action No. 21-11504-GAO (D. Mass.), Judge George A. O'Toole, Jr., of the U.S. District Court for the District of Massachusetts grants in part and denies in part the Defendants' Motion to Dismiss Plaintiffs' Amended Complaint for Failure to State a Claim. The Plaintiffs have brought this putative class action against the Defendants, alleging negligence and violations of Chapter 93A of the Massachusetts General Laws. In short, they claim that the Defendants repeatedly misrepresented the accuracy and quality of field drug tests that they sold to the Massachusetts Department of Corrections ("the DOC"). They further claim that those misrepresentations caused the DOC to inappropriately punish at least three inmates based on false positive drug test results. They also allege that attorneys representing those inmates suffered reputational harm and other injuries stemming from the erroneous punishment of their clients. Sirchie manufactures, markets, and sells drug tests. Premier markets and sells tests that are manufactured by Sirchie. Inmate Plaintiffs Green and Ivey were inmates in DOC prisons during the relevant period -- Green in MCI-Norfolk and Mr. Ivey in the Northeastern Correctional Center. Attorney Plaintiffs and Newman-Polk are attorneys who represent inmates in DOC prisons. Ms. Newman-Polk was Mr. Ivey's attorney. The NARK 20023 is a field drug test that is manufactured by Sirchie. Premier markets and sells the NARK 20023 on Sirchie's behalf. The NARK 20023 purports to detect synthetic cannabinoids -- that is, human-made chemicals that simulate tetrahydrocannabinol, the primary active ingredient in marijuana. Synthetic cannabinoids can be sprayed onto plant matter or paper, which can then be smoked to achieve similar effects to smoking marijuana. The NARK 20023 produces preliminary results indicating whether synthetic cannabinoids have been sprayed onto a piece of paper being tested; those results can later be re-tested in a lab at a higher level of scientific accuracy. The Plaintiffs allege that the NARK 20023 is "underinclusive," "fundamentally flawed," and unable to "reliably detect the drugs for which it purports to test," such that it "yields false positives at rates so high that its preliminary results are worse than random." They claim that Sirchie and Premier have known of, and concealed, these issues for years. In 2017, the DOC solicited bids for field drug tests. The complaint alleges that Premier failed to identify multiple substances known to cross-react in the NARK 20023 and failed to disclose that the NARK 20023's false positive rate exceeded both the .05% minimum accuracy bar and the 10% contract termination threshold. Premier was awarded the contract and began selling the NARK 20023 to the DOC around 2018. Since then, the DOC has used the NARK 20023 to test incoming inmate mail for the presence of synthetic cannabinoids. Sirchie provides users of its products with written training materials, pre-recorded webinars, and live training sessions about the use of its tests. The Plaintiffs claim that those trainings are misleading and inadequate. Sirchie allegedly instructs users of the NARK 20023 that any yellow or orange discoloration on the paper testing strip always indicates a positive result, despite knowing that such discoloration is often caused by innocuous factors. It is also alleged that Sirchie fails to properly educate trainees on the importance of confirmatory testing and the risk of cross-reaction. Sirchie is, and has always been, the sole source of training on the NARK 20023 used by DOC employees. The complaint alleges three discrete instances of DOC employees misusing the NARK 20023 in a manner that harmed inmates. First, in August 2018, a NARK 20023 test allegedly detected synthetic cannabinoids on legal mail sent by Mr. McKenna to a client -- who is not a plaintiff in this case -- at the Souza-Baranowski Correctional Center. Second, in November 2019, a NARK 20023 test at MCI-Norfolk allegedly detected synthetic cannabinoids on legal mail sent to Mr. Green by his attorney. Finally, in August 2020, a NARK 20023 test allegedly detected synthetic cannabinoids on legal mail sent to Mr. Ivey by Ms. Newman-Polk. The Plaintiffs attribute the DOC's misuse of the NARK 20023 -- and the attendant harms that befell them -- to the actions and omissions of Sirchie and Premier. They claim that the misrepresentations and omissions in Premier's bid caused the DOC to purchase and trust a product that fell below its identified accuracy standards. They further claim that the inadequacy of the training materials Sirchie provided to the DOC all but ensured that DOC employees would underestimate the product's flaws, misinterpret preliminary results, and make decisions adverse to inmates based on false positives. The Defendants have each moved to dismiss the complaint -- which brings one count of each type against each defendant -- for lack of standing and for failure to state a claim upon which relief can be granted. They first argue that the Attorney Plaintiffs lack standing to sue. To demonstrate standing that survives a motion to dismiss, a plaintiff must allege an injury that is cognizable, "fairly traceable" to the defendant's conduct, and redressable in court. The Attorney Plaintiffs allege damage to their client relationships, damage to their reputations, fear of prosecution, and emotional distress. Those allegations, as pled in the complaint, do not describe a cognizable injury. Judge O'Toole finds that the Attorney Plaintiffs' three allegations of tangible injury all come up short. Regarding business interference, they merely allege that they had limited access to their clients, and that some legal mail was damaged or lost. They do not allege "direct economic injury, "or a "deprivation of a part of their livelihoods." The Attorney Plaintiffs, then, allege only a "free-standing" claim of emotional harm -- one that does not stem from "the infringement of some legally protected or judicially cognizable interest." Standalone claims of that nature "cannot suffice for injury-in-fact for standing purposes." Because the Attorney Plaintiffs cannot identify an actual harm from which their alleged emotional injuries stem, those emotional injuries cannot support standing. The Defendants next argue that the complaint fails to state a claim for negligence. To avoid dismissal of this claim, the Inmate Plaintiffs must properly allege that the Defendants owed them a duty of care, and that the Defendants then breached that duty in a manner that caused injury to them. Judge O'Toole opines that they have done so; the allegations in the complaint, if proven at trial, would support a finding that both Defendants acted negligently. First, Sirchie and Premier -- as the manufacturer and marketer of the NARK 20023 and the sole sources of training available to the DOC -- were best positioned to protect inmates by ensuring that their tests were accurate and that DOC employees knew how to use them. The Inmate Plaintiffs have adequately alleged that the Defendants owed them a duty to act with reasonable care to preserve the scientific integrity of the testing process, limit cross-reactivity, and prevent erroneous reliance on false positive results. Second, the complaint also adequately alleges that both Sirchie and Premier breached their duty of care. Sirchie allegedly instructed the DOC that any yellow or orange coloration on a NARK 20023 testing strip always indicates the presence of synthetic cannabinoids, despite knowing that proposition to be false. It also allegedly misled DOC employees about the risk of crossreaction, misrepresented the types of compounds that cause false positive results, and downplayed the importance of confirmatory testing. For its part, Premier allegedly failed to identify crossreactive agents as instructed by the DOC's solicitation, falsely claimed that it had seen no evidence of unreliability, and misrepresented the NARK 20023's error rate in its initial bid to the DOC and in subsequent communications. Those actions clearly constitute breaches. Third, the complaint sufficiently alleges but-for causation as to both Defendants. If Sirchie had properly trained DOC employees -- instead of misleading them as alleged -- then those employees would have known not to rely on unconfirmed preliminary results, and the Inmate Plaintiffs likely would not have been disciplined. The complaint also alleges proximate causation as to both Defendants; the intervening acts of DOC employees do not absolve the Defendants at this stage. Unjustified inmate punishment is a plausibly foreseeable result of an erroneous prison drug test. Last, the final element of a negligence claim is easily disposed of. Judge O'Toole holds that the Inmate Plaintiffs allege both economic injuries (the loss of wage-earning jobs in the institutions) and non-economic injuries (assignment to punitive housing units, increased confinement, and missed classes and activities) that support a claim for negligence under Massachusetts law. Finally, the Defendants argue that the complaint fails to state a claim under Chapter 93A. A 93A plaintiff must allege that the defendant committed an unfair or deceptive act during trade or commerce that caused injury to him. Judge O'Toole opines that the Plaintiffs' allegations that Sirchie knowingly disseminated misleading training materials satisfy the pleading requirements of Chapter 93A. Those allegations describe "failures to warn," "half truths," and "negligent misrepresentations of fact" on the part of Sirchie. Similarly, the allegations against Premier describe "failures to warn," and "negligent misrepresentations of fact" in the bidding process; they, too, pass muster at this stage. The Inmate Plaintiffs have adequately alleged both deceptive and unfair business practices, on the part of both Defendants, that would constitute violations of Chapter 93A if proven at trial. For the foregoing reasons, Judge O'Toole grants the Defendants' Motion to Dismiss as to the claims of the Mr. McKenna and Ms. Newman-Polk but denies as to the claims of the Mr. Green and Mr. Ivey. The claims of the Attorney Plaintiffs are dismissed for lack of standing. The Inmate Plaintiffs, however, have stated claims against both Defendants for negligence and for violations of Chapter 93A. A full-text copy of the Court's Sept. 28, 2022 Opinion & Order is available at https://tinyurl.com/5n7fjr77 from Leagle.com. SPLUNK INC: Court Modifies Class Cert. Briefing Sched & Hearing --------------------------------------------------------------- In the class action lawsuit re Splunk Inc. Securities Litigation, Case No. 4:20-cv-08600-JST (N.D. Cal.), the Hon. Judge Jon S. Tigar entered an order modifying class certification briefingschedule and hearing date as follows: -- Defendants' opposition to the February 15, 2023 Motion for Class Certification shall be due: -- Lead Plaintiff's reply in April 25, 2023 support of the Motion for Class Certification shall be due: -- The hearing on the Motion May 18, 2023 for Class Certification, currently scheduled for February 16, 2023 continued to: On July 22, 2022, Lead Plaintiff filed its Motion for Class Certification and Appointment of Class Representative and Class Counsel. The parties agree that the hearing on Lead Plaintiff's Motion for Class Certification should be continued to May 18, 2023, or as soon thereafter as is convenient for the Court. The modification of the class certification briefing schedule and hearing date shall not affect any other deadlines. Splunk is an American software company based in San Francisco, California, that produces software for searching, monitoring, and analyzing machine-generated data via a Web-style interface. A copy of the Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3E7cBfA at no extra charge.[CC] The Plaintiff is represented by: Jonathan D. Uslaner, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN 2121 Avenue of the Stars, Suite 2575 Los Angeles, CA 90067 Telephone: (310) 819-3470 E-mail: jonathanu@blbglaw.com The Defendants are represented by Sara B. Brody, Esq. Nicole M. Ryan, Esq. Matthew P. Henry, Esq. TJ Herron, Esq. Stephen Tang, Esq. SIDLEY AUSTIN LLP 555 California St., Suite 2000 San Francisco, CA 94104 Telephone: (415) 772-1200 Facsimile: (415) 772-7400 E-mail: sbrody@sidley.com nicole.ryan@sidley.com mhenry@sidley.com therron@sidley.com stang@sidley.com SUSHI PALACE: Faces Mendoza Suit Over Unlawful Labor Practices -------------------------------------------------------------- FELIX MENDOZA, on behalf of himself and all others similarly situated, Plaintiff v. SUSHI PALACE, INC. d/b/a SUSHI PALACE, JIKAI LIN and YI XIAO, Defendants, Case No. 2:22-cv-05771-JS-ST (E.D.N.Y., Sept. 27, 2022) arises from the Defendants' unlawful labor policies and practices in violation of the Fair Labor Standards Act, the New York Labor Law, and the New York State Human Rights Law. The Plaintiff brings this action on behalf of himself and all similarly situated current and former non-exempt workers who elect to opt-in to this action pursuant to FLSA and NYLL and specifically, the collective action provision of 29 U.S.C. Section 216(b), to remedy violations of the wage-and-hour provisions of the federal and state laws by Defendants. In addition, the Plaintiff, individually, seeks damages for Defendants' violation based on the retaliation he was subjected to after complaining about his unpaid wages. The Plaintiff also seeks damages for Defendants' violations of the New York State Human Rights Law for disability discrimination. The Plaintiff was employed by the Defendants as a dishwasher from September 2017 until August 2022. Sushi Palace is a domestic corporation in the restaurant industry, having its principal place of business in Great Neck, New York.[BN] The Plaintiff is represented by: Yale Pollack, Esq. THE LAW OFFICES OF YALE POLLACK 66 Split Rock Road Syosset, NY 11791 Telephone: (516) 634-6340 E-mail: ypollack@yalepollacklaw.com - and - Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway, 3rd Floor New York, NY 10007 Telephone: (212) 323-6980 E-mail: jaronauer@aronauerlaw.com SWIFT TRANSPORTATION: Bouissey Wins Bid to Certify Class -------------------------------------------------------- In the class action lawsuit captioned as Edward Bouissey et al., v. Swift Transportation Co., Inc. et al., Case No. 2:19-cv-03203-VAP-KK (C.D. Cal.), the Hon. Judge Virginia A. Phillips entered an order granting the Plaintiffs' motion for class certification but modifies the Proposed Class as follows: (1) For the payroll records, wage statement, waiting time, and related unfair competition claims: truck drivers employed by Swift who (a) perform the majority of their work in California, or (b) present themselves for work in California but do not perform the majority of their work in any one state; and (2) For the hours worked, minimum wage, and related unfair competition claims: truck drivers employed by Swift who are California residents, where membership in the class is limited to the work hours logged in California. The Court additionally names Edward Bouissey and Richard Hodges as class representatives, and Schneider Wallace Cottrell Konecky LLP as class counsel. The Court therefore modifies the class definition. The Court defines a subclass for the purposes of litigating the payroll records, wage statement, and waiting time claims, as well as the unfair competition claim to the extent that it is predicated on these claims. This subclass consists of those drivers who meet the definition declared in Ward, i.e., those drivers who (1) perform the majority of their work in California, or (2) are based in California but do not perform the majority of their work in any one state. A driver is based in California if "California serves as the physical location where the worker presents himself or herself to begin work." The Plaintiffs worked for Swift as truck drivers in various locations across California in 2015 and 2016. During the relevant time period, Swift required its drivers to log each hour of every 24-hour period as one of either: "driving," "on-duty, not driving," "off-duty," or "sleeper berth." Swift did not pay its drivers for time marked "off-duty" or "sleeper berth." The Plaintiffs allege that Swift maintained policies requiring its drivers to record time as "off duty" or "sleeper berth" in circumstances where they were subject to Swift’s control and entitled to payment. Specifically, the Plaintiffs claim that even during times where they were off duty or in the sleeper berth, they were not allowed to: (1) leave their truck and its immediate area without supervisory approval; (2) leave "high-value" loads, or any load in "high-theft areas," unattended; (3) detach a loaded trailer from 12 their truck; (4) use their truck to travel off route or away from a worksite for leisure; (5) have unauthorized passengers, pets, or alcohol in the truck, or drink alcohol within the 12 hour period before being in their truck; (6) seek reimbursement for other non-truck modes of transportation that could be used off-route for personal endeavors; and (7) seek reimbursement for lodging. Swift Transportation a Phoenix, Arizona-based American truckload motor shipping carrier, part of Knight-Swift. With over 23,000 trucks, it is the largest common carrier in the United States. A copy of the Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3yb8wmV at no extra charge.[CC] WATKINS AND SHEPARD: Settlement Deal in Doty Wins Final Nod ----------------------------------------------------------- In the class action lawsuit captioned as TOM DOTY, individually and on behalf of all others similarly situated, v. WATKINS AND SHEPARD TRUCKING INC., a Montana corporation, Case No. 3:19-cv-05236-JHC (W.D. Wash.), the Hon. Judge John H. Chun entered an order: 1. granting final approval of the Settlement Agreement; 2. certifying the Class, as defined in the Court's June 16, 2022 Order Granting Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement as follows: "All individuals who (1) resided in Washington State, (2) held Washington State Commercial Driver's Licenses, (3) were employed by Defendant, (4) in the position of truck driver, (5) and who were paid, in whole or in part, on a per-mile piece-rate basis (or any other piece-rate basis), (6) at any time from February 25, 2016 through November 17, 2020 (collectively, "Class Members"). 3. finally and unconditionally approving the Settlement Agreement pursuant to FRCP 23(e)(2), and specifically: a. Approves the $50,000 Gross Settlement Amount; b. Approves the distribution of the Net Settlement Amount to Participating Class Members in the manner specified in and subject to the terms of the Settlement Agreement; c. Approves the Class Representative Incentive Award of $5,000 to the Class Representative; d. Approves Class Counsel's requested fees award of $15,000, which is 30% of the Gross Settlement Amount, and is to be paid from the Gross Settlement Amount; e. Approves Class Counsel's request for reimbursement of litigation expenses of $2,500 to be paid from the Gross Settlement Amount; and f. Approves payment to Atticus Administration, LLC, the Settlement Administrator, of Administration Costs in the amount of $5,000 to be paid from the Gross Settlement Amount; and The Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3CuQ636 at no extra charge.[CC] WESTERN RANGE: Castillo Allowed to File Class Cert Bid Under Seal ----------------------------------------------------------------- In the class action lawsuit captioned as ABEL CANTARO CASTILLO, v. WESTERN RANGE ASSOCIATION, Case No. 3:16-cv-00237-RCJ-CLB (D. Nev.), the Hon. Judge Robert C. Jones entered an order: 1. granting the Plaintiff's motion to file motion for class certification under seal; 2. granting in part and denying in part the Defendant's motion to file the Defendant's motion in opposition to Class Certification and Plaintiff's Reply in Support of Class Certification under seal; 3. granting in part and denying in part the Defendant's motion to file the Defendant's motion for summary judgment under seal; 4. granting the Plaintiff's motion to file motion for partial summary judgment under seal; 5. granting the Plaintiff's motion to file Opposition to Defendant's Motion for Summary Judgment under seal; and 6. granting in part and denying in part the Defendant's motion to file the Defendant's Motion in Opposition to Plaintiff's Partial Motion for Summary Judgment under seal. A copy of the Court's order dated Sept. 27, 2022 is available from PacerMonitor.com at https://bit.ly/3Sy4I74 at no extra charge.[CC] WESTWEGO CITY: Patton Appeals Suit Dismissal to 5th Circuit ----------------------------------------------------------- JOHN WESLEY PATTON is taking an appeal from a court order dismissing his lawsuit entitled John Wesley Patton, individually and on behalf of others similarly situated, Plaintiff, v. Westwego City, et al., Defendants, Case No. 2:20-CV-3408, in the U.S. District Court for the Eastern District of Louisiana. The Plaintiff brought this class action suit against the Defendants for alleged violation of prisoners' civil rights. On September 20, 2021, the Defendants filed a motion to dismiss the Plaintiff' complaint for failure to state a claim. The Court, having considered the complaint, the record, the applicable law, the Partial Report and Recommendation of the United States Magistrate Judge, and the failure of any party to file an objection to the Magistrate Judge's Partial Report and Recommendation, approved the Partial Report and Recommendation and adopted it as its opinion in this matter. Accordingly, the Court denied the Plaintiff's request to prosecute this matter as a class action. All of the Plaintiff's claims brought pursuant to 42 U.S.C. Section 1985 against all Defendants were dismissed with prejudice pursuant to 28 U.S.C. Section 1915A. All of their claims brought pursuant to 31 U.S.C. Sections 3729-3733 against all Defendants were also dismissed with prejudice pursuant to 28 U.S.C. Section 1915A. The appellate case is captioned as Patton v. Westwego City, Case No. 22-30584, in the United States Court of Appeals for the Fifth Circuit, filed on September 15, 2022. [BN] Plaintiff-Appellant JOHN WESLEY PATTON, individually and on behalf of all others similarly situated, appears pro se. Defendants-Appellees WESTWEGO CITY, et al., are represented by: Craig Robert Watson, Esq. Guice Anthony Giambrone, III, Esq. BLUE WILLIAMS, L.L.C. 3421 N. Causeway Boulevard Metairie, LA 70002 Telephone: (504) 831-4091 - and – Darren Anthony Allemand, Esq. DISTRICT ATTORNEY'S OFFICE 200 Derbigny Street Gretna, LA 70053 Telephone: (504) 361-2629 - and - Deborah A. Villio, Esq. LEBLANC FANTACI VILLIO, L.L.C. 3421 N. Causeway Boulevard Metairie, LA 70002 Telephone: (504) 828-1010 - and - Jacqueline Bordelon Wilson, Esq. LOUISIANA DEPARTMENT OF JUSTICE 1885 N. 3rd Street Baton Rouge, LA 70802 Telephone: (225) 326-6362 - and - Carey Buckland Daste, Esq. JEFFERSON PARISH CLERK OF COURT 200 Derbigny Avenue General Government Building Gretna, LA 70053 Telephone: (504) 364-2910 - and - Richard C. Stanley, Esq. STANLEY, REUTER, ROSS, THORNTON & ALFORD, L.L.C. 909 Poydras Street New Orleans, LA 70112 Telephone: (504) 523-1580 - and - John Courtney Wilson, Esq. 1510 Veterans Memorial Boulevard Metairie, LA 70005-0000 Telephone: (504) 832-0585 - and - Ralph Roger Alexis, III, Esq. PORTEOUS, HAINKEL & JOHNSON, L.L.P. 704 Carondelet Street New Orleans, LA 70130 Telephone: (504) 581-3838 [*] 1st Annual Complex Litigation Ethics Conference - Register Now ------------------------------------------------------------------ The Center For Litigation and Courts, UC Hastings Law, and Huntington National Bank invite you to the first annual Complex Litigation Ethics Conference. This program will bring together luminaries in the field -- judges, scholars, lawyers, and others -- to discuss a cutting-edge topic that is of critical importance to our justice system. The event will be held on campus and virtually on Saturday, October 22, 2022, from 8:45 a.m. to 4:45 p.m. Pacific Time at UC Hastings College of the Law in San Francisco. 7.0 Ethics CLE Credits are available. Expert panelists will discuss important industry topics including: * Adapting Ethics to Complex Litigation * Ethics in Funding Complex Litigation * Diversity, Equity, and Inclusivity in Complex Litigation * Communications with Absent Class Members The program will also include a special presentation of an inaugural Annual Award for Excellence in Ethics in Complex Litigation. The honoree will be recognized for accomplishments in promoting ethics in class actions, MDLs, or other complex litigation. Capacity is limited, so please register today at https://bit.ly/3rpycs7 View the agenda at https://bit.ly/3Cv2tMv ********* 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 ***