/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/221017.mbx C L A S S A C T I O N R E P O R T E R Monday, October 17, 2022, Vol. 24, No. 201 Headlines A1 ABSOLUTE: Davis Seeks Certification of Proposed FLSA Collective AMERICAN AIRLINES: May Face Suit Over Session Replay Technology AMERICAN LANDMARK: Diez Files Bid for Class Certification ARIZONA BEVERAGES: Class Certification Deadlines Extended in Dotson ARS NATIONAL: Court Dismisses Dervitz Class Suit With Prejudice BLOCK INC: Schall Law Firm Investigates Possible Securities Claims BP EXPLORATION: Wins Bid for Summary Judgment in Bachi B3 Suit BPS DIRECT: Swaim Files Suit in S.D. Florida BRITISH AIRWAYS: Ide, et al., Seek Final Nod of Settlement Deal BROOKDALE SENIOR: Seeks to Stay Further Discovery in Stiner Suit CAPSULE CORP: Court Grants Bid to Compel Arbitration in Hamm Suit CDT SERVICE: Gutierrez Files Suit in Cal. Super. Ct. CEPHALON INC: Sued Over Unlawful Downplaying of Opioids Risk COGNISM INC: Kis Files FDCPA Suit in N.D. California COLONIAL PENN: Lang's Subpoena vs. Bankers Life Quashed in Part CONCORD REAL: Faces Cowan Suit for Unpaid Wages COSAN CONSTRUCTION: Sanchez Sues Over Unpaid Minimum, Overtime Wage CREATION LAWN CARE: Jackson Sues Over Refusal to Pay Overtime Wages CREDIT CONTROL: Maldonado Suit Moved to Cook County Circuit Court DELAWARE: Adkins Appeals Ruling in Gibbs Suit to 3rd Cir. DERMALOGICA LLC: Sued Over Unlawful Collection of Biometric Data DICKEYS BBQ PIT: Esparza Files Suit in S.D. California DIRECT ENERGY: Bid for Summary Judgment in Schafer Suit Granted DNATA AVIATION USA: Curtis Files FLSA Suit in E.D. New York DXRACER USA: Toro Files ADA Suit in S.D. New York EARTH'S ELEMENTS: Lawal Files ADA Suit in S.D. New York EDFINANCIAL SERVICES: Quinn Suit Removed to N.D. Illinois EPIC AIRCRAFT: Court Strikes 3 Affirmative Defenses in Hanney Suit EQT CORPORATION: Laudato Seeks Class Action Certification Order ESTATES LLC: Avirta Appeals Atty. Fees & Costs Ruling to 4th Cir. EVOLUS INC: Reilly Files Suit in Fla. Super. Ct. FCA CANADA: Certification Denied for Takata Air Bag Recall FLORIDA: NIL Class Action Over Antitrust Violations Pending FOCUS SERVICES: Gann Sues Over Unpaid Compensations FOODEX NEW YORK: Dawkins Files ADA Suit in E.D. New York FORD MOTOR: Militello Sues Over Failure to Disclose Pump Defect GEISINGER HEALTH: Ex-Employees Appeal COVID Vaccine Suit Dismissal GEORGIA GIFTS: Toro Files ADA Suit in S.D. New York GIFTED NURSES: Fails to Protect Employees' Info, Covington Says GODIVA CHOCOLATIER: Settlement Costs Not Excluded From Coverage GOOGLE LLC: Minahan Sues Over Unlawfully Retained Information HB INNOVATIONS: Lawal Files ADA Suit in S.D. New York HL SUPERMARKET: Sanchez Sues Over Unpaid Minimum, Overtime Wages HOT SHOTS: Vinson Files FLSA Suit in W.D. Arkansas HP INC: Leflar Suit Remanded to Circuit Court of Lonoke County IAC/INTERACTIVECORP: Pension Trust Appeals Case Dismissal Ruling IFIT HEALTH: Baron Sues Over Defective At-Home Fitness Equipment IG GROUP: CFD Investors Join Suit Over Unfair Business Practices INNOFOODS USA: Walcoff Suit Removed to S.D. California INSOMNIA COOKIES: Court Vacates July 11 Judgment in Hine Labor Suit JERK TACO: Fails to Pay Proper Minimum Wages, Carpenter Alleges JUST ENERGY GROUP: Faces Securities Suits in US, Canadian Courts KAYDAN LOGISTICS: Sheets Labor Suit Removed to C.D. California KDM ANCHOR: Smith Sues Over Unpaid Minimum Wages and Tips KIA AMERICA INC: Walker Files FLSA Suit in W.D. Arkansas KIA AMERICA: Sampson Sues Over Defective Vehicle's Smart Key KIRKLAND'S INC: Faces Gennock Securities Suit KIROMIC BIOPHARMA: Podmore Sues Over Decline in Stock Market Value KONING & ASSOCIATES: Willis Suit Seeks to Certify Class Action KW NY CONSTRUCTION: Quito Sues Over Unpaid Overtime Wages LAKESIDE PIZZA: Baker Suit Seeks Proper Expense Reimbursements LAMBS & IVY: Loadholt Files ADA Suit in S.D. New York LANDRY'S INC: Toro Files ADA Suit in S.D. New York LAUER ENTERPRISES: Toro Files ADA Suit in S.D. New York LEARN & PLAY: Campbell Sues Over Daycare Workers' Unpaid Wages LIBERTY MUTUAL: Wright Sues Over Unpaid Overtime Hours Worked LINCARE HOLDINGS: Kennedy Suit Transferred to M.D. Florida LINCARE INC: Fails to Pay Timely Wages, Bethea Suit Alleges LINDENWOOD INC: Toro Files ADA Suit in S.D. New York LOBSTER PLACE INC: Dawkins Files ADA Suit in E.D. New York LOGITECH INC: Licea Files Suit in S.D. California LULUS FASHION: Reilly Files Suit in Fla. Super. Ct. MADAVOR MEDIA: Kasul Files Suit in W.D. Michigan MADISON REED: Brown Appeals False Ad Suit Dismissal to 9th Cir. MARINER WEALTH: Jackson Files ADA Suit in S.D. New York MDL 2873: Baker Files Personal Injury Suit Over PFAs Exposure MDL 2873: Berg Sues Over Injury From Exposure to Toxic PFAS MERCEDES-BENZ USA: Faces Battery Replacement Class Action Lawsuit MERCEDES-BENZ USA: Khetan Files Suit in D. New Jersey MESOBLAST LIMITED: Agreement in Principle Reached in Class Suit MK MARLOW: Gaona Suit Seeks to Recover Overtime Wages for Laborers MLCL GROUP: Alexander Sues Over Unpaid Wages, Illegal Tip Credit MONTEREY FINANCIAL: Shelley Files TCPA Suit in S.D. California MOUNTAIN WEST: Drange Appeals Class Cert. Bid Denial to 9th Cir. MW AUTO SALES: O'Neill Files Suit in Cal. Super. Ct. MW BHCC: Quintero Sues Over Unpaid Overtime Wages NETAPP INC: Settlement in Securities Suit Initially OK'd NFL ENTERPRISES: Oyler Sues Over Automatic Renewal Subscription NVIDIA CORP: Securities Litigation Ongoing in California Court OPSEC SECURITY: Hanigan Partly Wins Bid for Court-Authorized Notice PETAL & PUP USA: Reilly Files Suit in Fla. Super. Ct. PHYSICIAN'S BUSINESS: Freeland Files Suit in S.D. West Virginia POLARIS INDUSTRIES: Parties Agree to Dismiss Hellman From Lawsuit PREMIER FACILITIES: Morris Sues to Recover Unpaid Overtime PRESSLER FELT: Duong Files FDCPA Suit in D. New Jersey PURE FLIX: Holmes Files Suit in Cal. Super. Ct. R.T. FARM LABOR: Mondragon Files Suit in E.D. California RENAISSANCE ECONOMIC: Einhorn Files FCRA Suit in S.D. New York ROBOT FACTORY: Lawal Files ADA Suit in S.D. New York ROJAS FOOD SERVICES: Dawkins Files ADA Suit in E.D. New York SAFEMOON LLC: Merewhuader Suit Transferred to D. Utah SALON SERVICES: Lawal Files ADA Suit in S.D. New York SAMSUNG ELECTRONICS: Mark Files Suit in S.D. New York SBK PRESERVES: Batista Sues Over General Laborers' Unpaid Wages SCA OF MO: Ray Sues Over Unpaid Overtime Compensation SIERRA HEALTH: Love Files Suit in Cal. Super. Ct. SOUTH CHINA SEA RESTAURANT: Dawkins Files ADA Suit in E.D. New York SPOT INTERNATIONAL: Lawal Files ADA Suit in S.D. New York STAR FREIGHT: Nesmith Sues Over Breach of Contract STURM RUGER: Jones Sues Over Failure to Prevent Data Breach T.W. GARNER: Faces Class Suit Over Texas Pete Hot Sauce's False Ads TEDDY SACK CORP: Lawal Files ADA Suit in S.D. New York TESLA INC: Lynch's Bid to Approve Content of Notice Granted in Part TESLA INC: Magistrate Judge Recommends Arbitration in Lynch Suit TESLA INC: Nachman Sues Over Deceptive Branding and Labeling TESTAMENT LLC: Wellborn Sues Over to Recover Overtime Wages TIKTOK INC: Frankel Files Class Action Over Unauthorized Ads TIMESHARE HELP: Perrong TCPA Suit Transferred to E.D. Missouri TOP HOPS PEARL: Dawkins Files ADA Suit in E.D. New York TRIBESMEN GENERAL: Does Not Properly Pay Laborers, Charicando Says TURTLEFTPIERCE: Peoples Sues to Recover Unpaid Wages TXFM INC: Hale Suit Transferred to N.D. Texas U-HAUL CO: Bid to Dismiss Appeal as Moot in Ferrell Suit Granted U-HAUL INTERNATIONAL: Cartwright Files Suit in D. Arizona VANGUARD EQUITIES: Fabricant Sues Over Unsolicited Text Messages VEORIDE INC: Matos Sues Over Failure to Pay Weekly Wages VIRGINIA: Court Refuses to Dismiss 3rd Amended Suit in Doe v. SVJC VIVIANT CARE: Butler Suit Alleges Failure to Pay Proper Wages VOLKSWAGEN GROUP: Faces Class Suit Over Defective Audi Water Pumps VOLKSWAGEN GROUP: Raposa Sues Over Inoperable Telematics Equipment WINDOWRAMA ENTERPRISES: Dawkins Files ADA Suit in E.D. New York WORLDWIDE FLIGHT: Curtis Sues Over Unlawful Employment Practices ZARBEE'S INC: Phillips-Jones Sues Over False & Misleading Labelling [*] 1st Annual Complex Litigation Ethics Conference This Saturday [*] Canada Competition Bureau Ends Flushable Wipes Investigation [*] New Class Action Laws in Western Australia Discussed [*] NY's City Council Discusses "No More 24 Bill" Amid Class Suits ********* A1 ABSOLUTE: Davis Seeks Certification of Proposed FLSA Collective ------------------------------------------------------------------ In the class action lawsuit captioned as LAVELLE DAVIS on behalf of herself and all those similarly situated, v.A1 ABSOLUTE BEST CARE, L.L.C. AND COLLETTE BRANCH, Case No. 2:21-cv-00761-JCZ-DMD (E.D. La.), the Plaintiff asks the Court to enter an order: 1. certifying the two proposed Collective Action Classes under Section 216(b) of the Fair Labor Standards Act, 29 U.S.C. §201, et seq.; and 2. facilitating notice to all prospective class members. A1 Absolute is a hospital & health care company based out of 401 Whitney Ave, Gretna, Louisiana. A copy of the Plaintiff's motion to certify class dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3yprWo6 at no extra charge.[CC] The Plaintiff is represented by: Mary Bubbett Jackson, Esq. Jody Forester Jackson, Esq. JACKSON+JACKSON 201 St. Charles Avenue, Suite 2500 New Orleans, LA 70170 Telephone: (504) 599-5953 Facsimile: (888) 988-6499 E-mail: jjackson@jackson-law.net mjackson@jackson-law.net - and - John O. Pieksen, Jr.,Esq. BAGNERIS, PIEKSEN & ASSOCIATES, LLC 935 Gravier Street, Suite 2110 New Orleans, LA 70112 Telephone: (504) 493-7990 Facsimile: (504) 493-7991 E-mail: pieksen@bpajustice.com AMERICAN AIRLINES: May Face Suit Over Session Replay Technology --------------------------------------------------------------- Mateusz Maszczynski, writing for Paddle Your Own Kanoo, reports that American Airlines is facing the threat of a multi-million-dollar class action lawsuit over allegations that it used so-called session replay technology to "illegally tap" electronic communications from customer visits to its website. David Kauffman alleges in the lawsuit filed in Southern California District Court that American Airlines violated the federal Wiretap Act by using session replay technology without first alerting customers. Software companies have developed session replay technology that is so sophisticated that it can record every keystroke, mouse movement, and scroll that a website visitor makes, down to what you type into a search box before you even press enter. Rather than aggregating this treasure trove of information into the form of anonymized data, Kauffman alleges that the session replay technology can be used to record and playback individual browsing sessions "as if someone is looking over your shoulder". Some researchers claim this ability to look at someone's browsing history in such fine detail could give companies access to highly personal information that customers would not voluntarily hand over. Kauffman claims that Apple warns app developers that they must disclose the use of session replay software of face being immediately removed from its app store. In 2019, Walgreens even decided to stop sharing data with an analytics firm that provided the retail giant with session replay technology over questions raised by WIRED magazine about the reach of the software. As well as alleging violations of the Wiretap Act, the lawsuit also claims American Airlines has violated the California Invasion of Privacy Act. Kaufmann is seeking $10,000 or $100 per day in statutory damages for each violation of the Wiretap Act and $2,500 in statutory damages for each violation of the CIPA. American Airlines isn't the only company that Kauffmann is targeting over the use of session replay technology. In September and October, Kauffman has also filed similar class action suits against Papa John's, Zillow and Alaska Airlines. [GN] AMERICAN LANDMARK: Diez Files Bid for Class Certification --------------------------------------------------------- In the class action lawsuit captioned as LARA DIEZ, individually and on behalf of all others similarly situated, v. AMERICAN LANDMARK, LLC, REQUEST FOR HEARING, Case No. 1:22-cv-20189-KMM (S.D. Fla.), the Plaintiff Lara Diez moves the Court for an order: 1. certifying a class with respect to her claims against the Defendant American Landmark Management, LLC, for its violations of the Telephone Consumer Protection Act (TCPA); 2. designating the Plaintiff as class representative; and 3. designating the Plaintiff's counsel as Class Counsel. The Plaintiff moves to certify the following proposed Class: "All persons in the United States who (i) received two or more text message calls within twelve months of one another; and (ii) received the texts more than three months after providing their contact information to Defendant’s lead-list provider Apartment List, Inc.’s website; and, (iii) were texted by Defendant using ThatKey, LLC's text messaging platform; and (iv) were on the FTC's National Do-Not-Call list for more than 30 days. According to the the complaint, the Defendant's blatant disregard for the TCPA resulted in 1,388 text message solicitations to 217 individuals who had registered their numbers on the National Not Call Registry (NDNCR) to avoid spam calls like Defendant's. The Defendant manages over 100 rental properties located throughout Florida, Georgia, North Carolina, South Carolina, Virginia, Tennessee, and Texas. The Defendant advertises its rental properties on various websites, including Apartment List, Inc.'s website (www.apartmentlist.com), with the goal of acquiring tenants for its properties. To intake leads for prospective tenants who input their information online, including through Apartment List, Defendant utilizes computer software that it licenses from Rent Dynamics, Inc. A copy of the Plaintiff's motion to certify class dated Oct. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3s34nxX at no extra charge.[CC] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard Suite 1400 Ft. Lauderdale, FL 33301 Telephone: 954.400.4713 E-mail: mhiraldo@hiraldolaw.com - and - Rachel N. Dapeer, Esq. DAPEER LAW, P.A. 20900 NE 30th Avenue, Ste. 417 Aventura, FL 333180 Telephone: (305) 610-5223 E-mail: rachel@dapeer.com ARIZONA BEVERAGES: Class Certification Deadlines Extended in Dotson ------------------------------------------------------------------- In the class action lawsuit captioned as Michael Dotson, individually, and on behalf of others members of the general public similarly situated, v. Arizona Beverages USA LLC, Case No. 2:22-cv-00923-SVW-MAA (C.D. Cal.), the Hon. Judge Stephen V. Wilson entered an order granting stipulation to extend the class certification deadline. Arizona Beverages is an American producer of many flavors of iced tea, juice cocktails, and energy drinks based in Woodbury, New York. A copy of the Court's order dated Sept. 28, 2022 is available from PacerMonitor.com at https://bit.ly/3SMD3zx at no extra charge.[CC] ARS NATIONAL: Court Dismisses Dervitz Class Suit With Prejudice --------------------------------------------------------------- In the case, Re: Dervitz v. ARS National Services, Inc., Civil Action No. 22-179 (SDW) (JRA) (D.N.J.), Judge Susan D. Wigenton of the U.S. District Court for the District of New Jersey grants the Defendant's Motion to Dismiss Plaintiff Samantha Dervitz's Complaint on judicial estoppel grounds. On March 26, 2021, the Plaintiff filed a voluntary Chapter 7 bankruptcy petition in the U.S. Bankruptcy Court for the District of New Jersey. In doing so, she was required to disclose her financial assets in detail, including whether she had any "legal or equitable interest in claims against third parties, whether or not she had filed a lawsuit or made a demand for payment." The Plaintiff did not disclose that she had any such interests. In response to another question about the value of any other "contingent and unliquidated" claims, she stated that she had FDCPA "claims/cases" estimated to be worth $1,000 in statutory damages, with actual damages "unknown" and a total value of "unknown." In July 2021, the Bankruptcy Court discharged the Plaintiff of a $30,538 debt, after the bankruptcy trustee found that she had insufficient assets to pay her creditors. At no time did the Plaintiff update her bankruptcy petition. The Plaintiff filed a putative class action complaint in this lawsuit on Dec. 14, 2021, in the Superior Court of New Jersey, Law Division, Essex County, and the Defendants timely removed the suit to the present Court on Jan. 13, 2022. The Complaint asserts claims for: (1) violations of the FDCPA (First and Fifth Counts); (2) violations of the New Jersey Consumer Fraud Act ("CFA"), N.J. Stat. Ann. Section 56:8-2 (First and Second Counts); (3) negligent disclosure of confidential information (First and Third Counts); and (4) invasion of privacy (First and Fourth Counts). The Defendant subsequently filed the instant motion to dismiss, and the parties have completed briefing. It argues that the Complaint must be dismissed under the doctrine of judicial estoppel because the Plaintiff failed to fully disclose her claims against it as assets of her bankruptcy estate and she should not be permitted to benefit from this misrepresentation. Judge Wigenton agrees. She explains that the Plaintiff's position before the Court is "irreconcilably inconsistent" with her disclosures to the Bankruptcy Court. In her Complaint, the Plaintiff alleges that the Defendant violated the FDCPA and other legal obligations by disclosing information about her debt to a third-party letter vendor in December 2020. She seeks statutory damages under the FDCPA, treble damages under the CFA, compensatory damages for negligence and invasion of privacy, and other relief for herself and the putative class. However, three months after the Defendant made this purported unlawful disclosure, the Plaintiff reported to the Bankruptcy Court that she had "no" legal interest in claims against third parties. The Bankruptcy Code "imposes on debtors an affirmative duty of full disclosure." Judge Wigenton says the Plaintiff's vague description of "potential" FDCPA claims worth an estimated $1,000 in statutory damages violated her duty of full disclosure because it did not disclose the additional claims and full extent of damages sought in this lawsuit, which is based on events from three months earlier. She finds sufficient evidence that the Plaintiff's nondisclosure of these assets was an intentional misrepresentation and not a "good faith mistake." A rebuttable inference of bad faith arises when averments in the pleadings demonstrate both knowledge of a claim and a motive to conceal that claim in the face of an affirmative duty to disclose. The Plaintiff knew of these claims in December 2020, when the events triggering her several claims against Defendant took place, and she had a motive to conceal them in order to discharge her debts in the bankruptcy proceeding. She was represented by counsel in Bankruptcy Court, and the bankruptcy petition gave clear warnings regarding the duty to provide complete information and the criminal penalties for making false statements in a bankruptcy proceeding. Yet she gives no explanation for why the claims were not disclosed where they plainly should have been: as claims against a third party under Schedule A/B, Question 33. Thus, Judge Wigenton can only infer from the Plaintiff's vague and incomplete description of these claims that the Plaintiff misrepresented her assets to the Bankruptcy Court in bad faith. Finally, Judge Wigenton concludes that judicial estoppel is an appropriate sanction. The Bankruptcy Code's "disclosure requirements are crucial to the effective functioning of the federal bankruptcy system" and "the importance of full and honest disclosure cannot be overstated." The Plaintiff was required to disclose the nature and value of any claims against third parties, whether or not she had filed a lawsuit, and she has not given an adequate explanation for why she failed to do so. Judicial estoppel is "designed to prevent litigants from playing fast and loose with the courts" as Plaintiff did here. Judge Wigenton holds that permitting the Plaintiff to proceed with these claims "would potentially confer upon her an unfair advantage over her creditors, who did not receive the full value of their debts, and 'reward her for what appears to be duplicitous conduct in the course of her bankruptcy proceeding.'" Accordingly, the Plaintiff is judicially estopped from proceeding with her claims against the Defendant. For the foregoing reasons, Judge Wigenton grants the Defendant's Motion to Dismiss and dismisses the Plaintiff's Complaint with prejudice. An appropriate order follows. A full-text copy of the Court's Oct. 4, 2022 Letter Opinion is available at https://tinyurl.com/ywjux7zc from Leagle.com. Philip D. Stern -- webinquiry@philipstern.com -- Yongmoon Kim -- rkim@thekimlawfirmllc.com -- Kim Law Firm, LLC, Hackensack, NJ, Attorneys for Plaintiff Samantha Dervitz Han Sheng Beh -- hbeh@hinshawlaw.com -- Hinshaw & Culbertson LLP, New York, NY, Attorney for Defendant ARS National Services, Inc. BLOCK INC: Schall Law Firm Investigates Possible Securities Claims ------------------------------------------------------------------ The Schall Law Firm, a national shareholder rights litigation firm, on Oct. 8 disclosed that it is investigating claims on behalf of investors of Block, Inc. ("Block" or "the Company") (NYSE: SQ) who received their shares based on Block's acquisition of Afterpay Ltd. ("Afterpay") (ASX: APT) for violations of the securities laws. The investigation focuses on whether the Company issued false and/or misleading statements and/or failed to disclose information pertinent to investors leading up to Block's acquisition of Afterpay on January 31, 2022. If you are a Block shareholder who acquired the Company's shares based on its acquisition of Afterpay and have suffered a loss, click here to participate. We also encourage you to contact Brian Schall of the Schall Law Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at bschall@schallfirm.com. The class in this case has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. Contacts The Schall Law Firm Brian Schall, Esq. 310-301-3335 info@schallfirm.com www.schallfirm.com [GN] BP EXPLORATION: Wins Bid for Summary Judgment in Bachi B3 Suit -------------------------------------------------------------- Judge Wendy B. Vitter of the U.S. District Court for the Eastern District of Louisiana grants BP's Motion for Summary Judgment in the lawsuit titled CHRISTIAN BACHI, ET AL. v. BP EXPLORATION & PRODUCTION, INC., ET AL., Case No. 17-4129 (E.D. La.). The Motion is filed by Defendants BP Exploration & Production, Inc., BP America Production Company, and BP p.l.c. and joined in by Defendants Halliburton Energy Services, Inc., Transocean Offshore Deepwater Drilling, Inc., Transocean Holdings, LLC, and Transocean Deepwater, Inc. The case arises from the Plaintiffs' alleged exposure to harmful chemicals following the Deepwater Horizon oil spill that occurred on April 20, 2010. On Jan. 11, 2013, United States District Judge Carl J. Barbier, who presided over the multidistrict litigation arising out of the Deepwater Horizon incident, approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement (the "MSA"). However, certain individuals, referred to as "B3" plaintiffs, either opted out of or were excluded from the MSA. After opting out of the MSA, the Plaintiffs filed an individual Complaint on April 27, 2017 against the Defendants. The Plaintiffs allege that after the Deepwater Horizon oil spill, they were injured as a result of exposure to oil and/or dispersing chemicals and/or decontaminants while working as clean-up workers on Santa Rosa Beach, Florida. The Plaintiffs allege that their symptoms include, inter alia, coughing, burning throats, heart palpitations, blurred visions, fever, chills, vomiting, irregular menstrual cycles, weakness, chest pain, and headaches. The Plaintiffs allege that they have sustained damages as a result of the Defendants' negligence; strict liability; gross negligence; willful and wanton conduct; and violations of applicable safety, construction, or operation regulations and/or statutes. Specifically, the Plaintiffs seek to recover economic damages, personal injury damages--including damages for past and future medical expenses and for pain and suffering--punitive damages, and attorneys' fees, costs, and expenses. The Defendants filed the instant Motion on Aug. 22, 2022, asserting that they are entitled to summary judgment because Plaintiffs have not produced an expert report or any expert testimony in support of their health complaints and, thus, cannot prove that their alleged medical conditions were caused by their exposure to substances related to the Deepwater Horizon oil spill. The Defendants claim that the Fifth Circuit and at least eleven Sections of this Court have issued numerous opinions addressing the obligation of a B3 plaintiff to prove legal causation. According to the Defendants, this requirement derives from the fundamental principles governing proof of causation in toxic tort cases decided under general maritime law. The Defendants claim that B3 plaintiffs, who were originally part of the multidistrict litigation stemming from the Deepwater Horizon oil spill, must satisfy the same legal cause standard as BELO plaintiffs. The Defendants further assert that due to the technical nature of the proof, courts have uniformly concluded that toxic tort plaintiffs need expert testimony to meet their burden of proving causation. Accordingly, the Defendants claim that courts have repeatedly granted summary judgment dismissing claims of plaintiffs who alleged injuries from exposure to the Deepwater Horizon oil spill, but failed to produce expert support for their claims. Defendants argue that, for these reasons, the Plaintiffs' claims lack the expert support required to carry their burden of proof on causation and, thus, that the Court should grant their Motion and dismiss the Plaintiffs' claims with prejudice. The Plaintiffs did not file a response to the Motion. The Court finds that because the Plaintiffs failed to identify a causation expert in this case by the Court's Aug. 4, 2022 deadline and did not move for an extension of that deadline, or for an extension of their deadline to respond to the instant Motion, they cannot meet their burden of proof on causation. Accordingly, the Defendants are entitled to summary judgment as a matter of law. For these reasons, the Court rules that BP's Motion for Summary Judgment is granted, and that the Plaintiffs' claims against the Defendants are dismissed with prejudice. A full-text copy of the Court's Order & Reasons dated Sept. 26, 2022, is available at https://tinyurl.com/455z9r2e from Leagle.com. BPS DIRECT: Swaim Files Suit in S.D. Florida -------------------------------------------- A class action lawsuit has been filed against BPS Direct, LLC. The case is styled as Jacob Swaim, individually and on behalf of all others similarly situated v. BPS Direct, LLC d/b/a Bass Pro Shops, Case No. 9:22-cv-81540-XXXX (S.D. Fla., Oct. 5, 2022). The nature of suit is stated as Other P.I. for Personal Injury. BPS Direct, LLC, doing business as Bass Pro Shops -- https://www.basspro.com/shop/en -- is an American privately held retailer which specializes in hunting, fishing, camping, and other related outdoor recreation merchandise.[BN] The Plaintiff is represented by: Jonathan Betten Cohen, Esq. 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Phone: (865) 247-0080 Fax: (865) 522-0049 Email: jcohen@milberg.com BRITISH AIRWAYS: Ide, et al., Seek Final Nod of Settlement Deal --------------------------------------------------------------- In the class action lawsuit captioned as STEPHEN IDE, on behalf of themselves and all others similarly situated, v. BRITISH AIRWAYS, PLC (UK), Case No. 1:20-cv-03542-JMF (S.D.N.Y.), the Plaintiffs asks the Court to enter an order: 1. approving a class action Settlement; 2. certifying the Settlement Class; 3. appointing th Plaintiffs Ide and Steele-Clarke as the Class Representatives; 4. appointing Shanon J. Carson and John G. Albanese of Berger Montague PC and Adam Polk, Scott Grzenczyk, and Tom Watts of Girard Sharp LLP as Co-Lead Counsel for the Settlement Class; and 5. dismissing this matter with prejudice. British Airways (BA) is the flag carrier airline of the United Kingdom. A copy of the Plaintiff's motion dated Oct. 4, 2022 is available from PacerMonitor.com at https://bit.ly/3rHx2Z9 at no extra charge.[CC] The Attorneys for the Plaintiffs are: Adam E. Polk, Esq. Scott Grzenczyk, Esq. Tom Watts, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: apolk@girardsharp.com scottg@girardsharp.com tomw@girardsharp.com - and - E. Michelle Drake, Esq. John G. Albanese, Esq. Shanon J. Carson, Esq. BERGER MONTAGUE PC 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Telephone: (612) 594-5933 Facsimile: (612) 584-4470 E-mail: emdrake@bm.net jalbanese@bm.net scarson@bm.net BROOKDALE SENIOR: Seeks to Stay Further Discovery in Stiner Suit ---------------------------------------------------------------- In the class action lawsuit captioned as STACIA STINER, et al., v. BROOKDALE SENIOR LIVING INC., et al., Case No. 4:17-cv-03962-HSG (N.D, Cal.), the Defendants ask the Court to enter an order staying further discovery pending the Court's ruling on the motion for class certification. This motion is made on the grounds that a temporary stay of discovery pending the Court's ruling on Plaintiffs' motion for class certification is necessary and appropriate. First, district courts often stay discovery while a ruling on class certification is pending and the Magistrate Judge’s prior rulings indicate she agreed with this approach. Second, Plaintiffs would not be substantially prejudiced by a stay of discovery given that there are currently no deadlines for merits discovery and no need for any additional class-wide discovery. Third, Defendants would suffer significant burden and expense in responding to and producing any additional discovery when such discovery may prove to be irrelevant or disproportionate to the needs of the case following the Court's ruling on class certification. Finally, judicial resources would be wasted absent a stay of discovery given that the Court would inevitably need to address multiple discovery disputes that may ultimately be irrelevant and unnecessary if the putative classes are not certified. The Plaintiffs have pursued discovery in this matter for more than four years. In those four years, they requested and obtained approximately 563,000 documents, 2.95 million pages, and 342 GB of data relating to both class and merits issues. In fact, the discovery in this case has been so extensive that the Magistrate Judge previously commented "this case does not suffer from a lack of discovery; it suffers from a surfeit of it." Apparently dissatisfied with the surfeit of discovery they already have, the Plaintiffs are now on a quest for even more discovery -- specifically, class-wide merits discovery. But a class has not been certified in this case. Further, briefing on class certification is complete and there are no pending deadlines. Thus, there is absolutely no need to proceed with any discovery -- much less class-wide merits discovery -- at this time. Plaintiffs therefore will not suffer any prejudice if a stay is entered. A copy of the Defendants' motion dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3fQN3ch at no extra charge.[CC] The Defendants are represented by Erica Rutner, Esq. John A. Bertino, Esq. MOORE & LEE, LLP 110 SE 6 th Street, Suite 1980 Fort Lauderdale, FL 33301 Telephone: (703) 940-3763 E-mail: e.rutner@mooreandlee.com j.bertino@mooreandlee.com - and - Michael D. Jacobsen, Esq. Justin T. Curley, Esq. SEYFARTH SHAW LLP 233 South Wacker Drive, Suite 8000 Chicago, IL 60606-6448 Telephone: (312) 460-5000 Facsimile: (312) 460-7000 E-mail: mjacobsen@seyfarth.com jcurley@seyfarth.com CAPSULE CORP: Court Grants Bid to Compel Arbitration in Hamm Suit ----------------------------------------------------------------- Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York grants the Defendant's motion to compel arbitration in the lawsuit titled Sarah Hamm, Plaintiff v. Capsule Corporation d/b/a Capsule, Defendant, Case No. 22-cv-05435 (JSR) (S.D.N.Y.). Defendant Capsule Corporation moves to compel arbitration of Plaintiff Hamm's putative class action complaint, citing an arbitration clause in Capsule's terms and conditions of service ("TOC") apparently requiring arbitration. Hamm argues that Capsule has failed to meet its burden to show that she affirmatively agreed to Capsule's TOC and can, therefore, be bound by them and argues that they do not cover her claim in any event and are unenforceable. The Court agrees with Capsule and, therefore, stays this case pending arbitration pursuant to 9 U.S.C. Section 3. Ms. Hamm raises four arguments against enforcing the arbitration agreement contained in Capsule's TOC. First, she argues that Capsule has failed to establish her agreement to Capsule's TOC. Second, she argues that, assuming she did agree to Capsule's TOC, including the arbitration clause, her claims fall outside the scope of what she agreed to arbitrate. Third, she argues that assuming she agreed to Capsule's TOC and that her claims fall within the scope of the arbitration clause, the contract is not enforceable because it was unconscionable or because her assent to it was fraudulently induced. And fourth, she argues that Capsule's motion is not supported by adequate admissible evidence. The Court disagrees with each of these arguments. According to an affidavit submitted by Capsule's CEO, Capsule customers including Hamm sign up for an account by entering their email address and clicking a 'CONTINUE' button, immediately below which Capsule displays the message: "By clicking continue, I accept the Capsule Terms of Service, Privacy Policy, and HIPAA Policy." The message includes embedded links for the terms of service, the privacy policy, and the HIPAA policy that a user can click on and access. Ms. Hamm does not appear to dispute that this is how she signed up for Capsule's services. Though she submitted a declaration stating that she "may have made a transaction on Capsule's website," but that she "did not know, or ever notice, any Terms of Service," "did not click on any agreement related to a 'Terms of Service,'" and "did not think I was agreeing to anything when I made a transaction with Capsule," she does not actually dispute that she did enter her email address and click a 'Continue' button displayed immediately next to the aforementioned message. And her legal filings include a screenshot of the exact same screen presented by Capsule, along with a description of that screen as representing what a consumer purchasing through Capsule's website can see. Judge Rakoff notes that the situation here is, in almost every relevant respect, identical to Meyer v. Uber Techs, Inc., 868 F.3d 66, 73 (2d Cir. 2017). According to both parties' presentations, the terms and conditions appear on a single screen with the button that a consumer is asked to click. During argument on Capsule's motion, Hamm's counsel noted two differences between the screen at issue here and that in Meyer. First, whereas in Meyer the message informing users that they were agreeing to Uber's terms was rendered in black as against a white background and the hyperlinked terms were rendered in electric blue, here the full message including the hyperlinked terms is rendered in green. And second, in Meyer the relevant "REGISTER" button came after users entered their credit card information, whereas here it came after users enter an email address. Neither difference carries the weight Hamm urges, Judge Rakoff holds. Here, Judge Rakoff says, it would be difficult to conclude that Capsule's terms and conditions were not reasonably conspicuous, at least under the standard the Second Circuit set out in Meyer. Although the fact that they were rendered in green rather than electric blue may have made them less immediately eye-catching, they were placed much closer in space to the 'CONTINUE' button than the linked terms were to the 'REGISTER' button in Meyer. Moreover, the screen here was less cluttered than the screen in Meyer, with essentially nothing on it except the field to enter an email address, the 'CONTINUE' button, and the message advertising agreement and linking to Capsule's TOC. As such, the Court cannot conclude that just because the message alerting users to their agreement with Capsule's TOC was in green, it was not also reasonably conspicuous. And as to the second difference Hamm points to between this case and Meyer -- the fact that the terms and conditions in Meyer were advertised at a moment when a user had just entered credit card information before clicking "REGISTER," whereas here they were advertised after a user entered an email address before clicking 'CONTINUE' -- Hamm cites no authority, and the Court is aware of none, showing this to be a relevant distinction. During argument, Hamm's counsel argued that being asked to enter credit card information connotes transactional finality and, therefore, puts users on greater notice that they are likely to be bound to contractual terms than merely entering one's email address before clicking 'CONTINUE.' But the Second Circuit did not mention the fact that users were asked to enter credit card information as a relevant factor in Meyer, Judge Rakoff notes. And it would have been odd to put any weight on that fact, because users in Meyer were not actually completing a transaction -- which might be the sort of thing, under Hamm's apparent theory, that would place a user on notice of the need to look out for contractual terms -- but were merely creating an account to use in future transactions. That is what users appeared to be doing by entering their email address and clicking 'CONTINUE' here. Further, Judge Rakoff holds, even if these putative differences between the situation here and in Meyer carried any weight, Hamm's complaint specifically alleges that she personally read and relied on the Capsule Privacy Policy when she made her decision to transact with the Defendant. As noted, the very privacy policy that Hamm alleges she "read and relied on" was displayed and linked to in the very same message below the 'CONTINUE' button that advertised and linked to Capsule's TOC. In light of the evidence before it, the Court, therefore, concludes that any reasonable user, who had read Capsule's privacy policy, would not have lacked notice of its TOC. For these reasons, the Court finds that Capsule's TOC were reasonably conspicuous and that Hamm agreed to them. Ms. Hamm also argues that her claims do not fall under the scope of her arbitration clause with Capsule. The clause states that the customer and Capsule "agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below or where prohibited by law." Hamm argues that because the contract is for "pharmacy services," her claims relating to the alleged leak of her private medical information do not relate to the terms of her contract. But the arbitration clause clearly covers disputes relating both to the terms themselves, and to Capsule's provision of "services," Judge Rakoff says. As described, Hamm's claims relate to Capsule's alleged failure to store her data in a responsible way, including by failing to act in accordance with the privacy policy on which Hamm alleges she relied in agreeing to use Capsule's services. Judge Rakoff points out, among other things, that that Privacy Policy, though linked to separately from the TOC, is explicitly included by the TOC as part of the entire agreement between the parties to which the arbitration clause applies. Judge Rakoff finds that Hamm's claims plainly relate to and are covered by Capsule's terms and conditions, including the arbitration clause. Ms. Hamm also argues that any contract formed with Capsule is invalid because it was fraudulently induced by virtue of Capsule's allegedly false representations about its privacy and security protocols, and is substantively and procedurally unconscionable. But her arguments on both points do not involve anything about the arbitration agreement itself, Judge Rakoff notes. Since Hamm's arguments on these points do not relate to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance. Ms. Hamm does not allege she was fraudulently induced into the contract by virtue of false promises relating to her ability to pursue claims in court, rather than through arbitration, and her arguments as to unconscionability also largely do not appear to relate to the arbitration clause but rather to other aspects of the contract, such as Capsule's purported ability to change terms unilaterally. As such Hamm's arguments relating to fraud or to unconscionability should be made to the arbitrator, not this Court. Finally, Hamm raises various evidentiary issues with Capsule's motion to compel arbitration. She argues that Capsule has failed to lay a proper foundation for establishing that the TOC it has submitted (included as an exhibit to a declaration submitted under penalty of perjury by Capsule's CEO) are authentic and were actually in place when Hamm signed up for Capsule's services. She also contends that Capsule's CEO's assertions that Hamm signed up for Capsule's services on Feb. 23, 2022, and did not exercise her right to opt out of the arbitration provision are hearsay and would violate the best evidence rule. These contentions lack merit, Judge Rakoff holds. As Capsule's CEO, Eric Kinariwala is in a place to know how users go about signing up for services, what date they did so, and what terms were in place and advertised on those dates. The Second Circuit has described the evidentiary standard for deciding whether to compel arbitration is similar to the summary judgment standard. And while a party may defeat summary judgment by demonstrating "that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence," Fed. R. Civ. P. 56(c)(2), that is different from requiring parties to submit evidence at this stage in the precise form it would be presented in at trial. Ms. Hamm offers no reason to think that Capsule's evidence of the TOC in place the day she signed up could not be properly authenticated at trial, nor any reason to think such evidence could only be presented as hearsay not subject to any exception, Judge Rakoff says. Nor has she created any dispute of fact relating to Capsule's evidence; while she states in her own declaration that she "did not know about the 'Terms of Service' and do not believe [she] was ever notified on the Capsule website about them or ever presented with them," she does not actually dispute that the terms were available and linked immediately beneath a 'CONTINUE' button when she signed up to create her account. As such, Judge Rakoff opines, there is no genuine material factual dispute concerning whether Hamm signed up for Capsule's terms and conditions. For the reasons stated, the Court grants Capsule's motion to compel arbitration. Pursuant to 9 U.S.C. Section 3, this case is stayed pending the completion of arbitration. The parties are directed to jointly call chambers within 5 business days of a final ruling in arbitration (or other resolution of their claims) to discuss any further proceedings. A full-text copy of the Court's Memorandum Order dated Sept. 26, 2022, is available at https://tinyurl.com/2p977s2y from Leagle.com. CDT SERVICE: Gutierrez Files Suit in Cal. Super. Ct. ---------------------------------------------------- A class action lawsuit has been filed against CDT Service Corporation, et al. The case is styled as Erica Gutierrez an individual, on behalf of herself and on behalf of all persons similarly situated v. CDT Service Corporation, Does 1-50, Case No. 34-2022-00327667-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Oct. 3, 2022). The case type is stated as "Other Employment - Civil Unlimited." CDT Service Corporation is a rehabilitation center in Loomis, Placer, California.[BN] The Plaintiff is represented by: Shani O. Zakay, Esq. ZAKAY LAW GROUP, APLC 5440 Morehouse Dr., Ste. 3600 San Diego, CA 92121-6720 Phone: 619-255-9047 Fax: 858-404-9203 Email: shani@zakaylaw.com CEPHALON INC: Sued Over Unlawful Downplaying of Opioids Risk ------------------------------------------------------------ Susanville Elementary School District and Lassen County Office of Education, individually, and on behalf of all others similarly situated v. Cephalon, Inc., Teva Pharmaceutical Industries Ltd., Teva Pharmaceuticals USA, Inc., Janssen Pharmaceuticals, Inc., Orth-McNeil-Janssen Pharmaceuticals, Inc. f/k/a/ Janssen Pharmaceutica, Inc., Johnson & Johnson, Inc, AbbVie, Inc., Allergan plc f/k/a Actavis plc, Watson Pharmaceuticals, Inc. n/k/a Actavis, Inc., Watson Laboratories, Inc., Actavis LLC, Actavis Pharma, Inc. f/k/a/ Watson Pharma, Inc., KVK-Tech, Inc., Viatris, Inc. f/k/a Mylan N.V., Assertio Holdings, Inc., Warner Chilcott Company, AmerisourceBergen Corporation, Cardinal Health, Inc., McKesson Corporation, CVS Health Corporation, CVS Indiana L.L.C., CVS Rx Services, Inc., CVS TN Distribution, LLC, CVS Pharmacy, Inc., Holiday CVS, LLC, Omnicare Distribution Center LLC, Walgreens Boots Alliance, Inc., a/k/a Walgreen Co., Walgreen Eastern Co., Inc., Walmart Inc., f/k/a Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, WSE Management, LLC, WSE Investment, LLC, Wal- Mart Stores East, Inc., LLC, Rite Aid Corporation, Rite Aid Hdqtrs. Corp., Rite Aid Of Maryland, Inc., d/b/a Rite Aid Mid-Atlantic Customer, Eckerd Corporation d/b/a Rite Aid Liverpool Distribution Center, Case No. 1:22-op-45031-DAP (N.D. Ohio, Oct. 4, 2022), is brought against the Defendants unlawful downplaying the very real and serious risks of opioids, which created the worst man-made epidemic in history. Because of Defendants' horrific wrongdoing, which created the worst man-made epidemic in history, births of children with prenatal opioid exposure have increased exponentially since the onset of the opioid epidemic, and they show no signs of slowing down. As a result, our nation's public schools will be saddled with the extra costs of education of children with prenatal opioid exposure and postnatal opioid exposure for years to come. In order to suppress reasonable concerns about opioids and to maximize profits, opioid manufacturers, Defendants Janssen, Cephalon, Actavis, KVK, Viatris, Assertio, Warner-Chilcott (hereinafter collectively referred to as the "Manufacturer Defendants") and non-joined manufacturers Insys, Mallinckrodt, Endo, and Purdue and its owners, the Sacklers engaged in a concerted, coordinated strategy to recast how doctors and patients think about pain and, specifically, to encourage the use of opioids to treat not just the relative few who suffer from such things as acute post-surgical pain and end-stage cancer pain, but the masses who suffer from common chronic pain conditions. The Manufacturer Defendants' and non-joined manufacturers' intention was to normalize aggressively prescribing opioids for many kinds of pain that had been treated without opioids by downplaying the very real and serious risks of opioids, especially the risk of addiction, and by misstating and exaggerating the benefits of their use. To accomplish this goal, they intentionally misled doctors and patients about the appropriate uses, risks, safety, and efficacy of prescription opioids. They did so directly through sales representatives and marketing materials and indirectly through financial relationships with academic physicians, professional societies, hospitals, trade associations for state medical boards, and seemingly neutral third-party foundations. False messages about the safety, addictiveness, and efficacy of opioids were disseminated by infiltrating professional medical societies and crafting and influencing industry guidelines to disseminate false and deceptive pro-opioid information under the guise of science and truth. The Manufacturer Defendants and non-joined manufacturers falsely assured the public and prescribers that the risk of becoming addicted to prescription opioids among patients being treated for pain was less than 1%. In reality, many people with no addiction history can become addicted after just weeks or even days of use. As many as 56% of patients receiving long-term prescription opioid painkillers become addicted. Even when some Defendants were forced to admit the unlawful marketing and sale of opioids and/or the failure to report suspicious orders, the conduct did not abate because profits realized by the aggressive marketing and prescribing of opioids dwarf the penalties imposed as a result of violations found. The fines were absorbed as part of the overhead for engaging in this lawless and immoral behavior as the incentive to push opioids remained. The Plaintiffs bring this action on behalf of themselves and a state class of all public school districts and their County Offices of Education in California. The Plaintiffs and the proposed class bear the steadily rising costs of providing special education and related services to children who were exposed to opioid use in utero, making them more than twice as likely to exhibit learning and developmental disabilities than children who were not, to children damaged by living in households afflicted by opioids, and to children addicted to opioids, says the complaint. The Plaintiffs directly and foreseeably sustained all economic damages. Cephalon, Inc. manufactured, marketed and sold opioids in the United States and California.[BN] The Plaintiffs are represented by: Cyrus Mehri, Esq. Joshua Karsh, Esq. C. Ezra Bronstein, Esq. Autumn Clarke, Esq. MEHRI & SKALET, PLLC 2000 K Street NW, Suite 325 Washington, DC 20006 Phone: (202) 822-5100 Email: cmehri@findjustice.com jkarsh@findjustice.com ebronstein@findjustice.com aclarke@findjustice.com - and - Neil Henrichsen, Esq. HENRICHSEN LAW GROUP, PLLC 655 15th Street, N.W. Suite 800 Washington, DC 20005 Phone: (202) 423-3649 Email: nhenrichsen@hslawyers.com - and - Richard L. Coffman, Esq. THE COFFMAN LAW FIRM 3355 West Alabama, Suite 240 Houston, Texas 77098 Phone: 713.528.6700 Email: rcoffman@coffmanlawfirm.com - and - Peter G. Tsarnas, Esq. Marc P. Gertz, Esq. GERTZ & ROSEN, LTD 11 South Forge Street Akron, OH 44304 Phone: (330) 376-8336 Email: mpgertz@gertzrosen.com ptsarnas@gertzrosen.com - and - Wayne Hogan, Esq. Leslie A. Goller, Esq. TERRELL HOGAN YEGELWEL, P.A. 233 East Bay Street, 8th Floor Jacksonville, FL 32202 Phone: (904) 722-2228 Email: hogan@terrellhogan.com lgoller@terrellhogan.com - and - Mitchell A. Toups, Esq. MITCHELL A. TOUPS, LTD. 3355 West Alabama, Suite 1150 Houston, TX 77098 Phone: (409) 838-0101 Email: matoups@wgttlaw.com COGNISM INC: Kis Files FDCPA Suit in N.D. California ---------------------------------------------------- A class action lawsuit has been filed against Cognism, Inc. The case is styled as Nicholas Kis, on behalf of himself and all others similarly situated v. Cognism, Inc., Case No. 4:22-cv-05322-KAW (N.D. Cal., Sept. 19, 2022). The nature of suit is stated as Other Personal Property for Personal Injury. Cognism -- https://www.cognism.com/ -- is a leader in premium sales intelligence, setting a new standard for data quality and compliance, trusted by over 1800 customers worldwide.[BN] The Plaintiff is represented by: Marie Noel Appel, Esq. Michael Francis Ram, Esq. MORGAN & MORGAN 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Phone: (415) 358-6913 Fax: (415) 358-6923 Email: mappel@forthepeople.com mram@forthepeople.com COLONIAL PENN: Lang's Subpoena vs. Bankers Life Quashed in Part --------------------------------------------------------------- Magistrate Judge Jeffrey I. Cummings of the U.S. District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order in the lawsuit entitled NANCY LANG, Plaintiff v. COLONIAL PENN LIFE INSURANCE COMPANY, Defendant, Case No. 21-cv-6290 (N.D. Ill.), granting in part and denying in part Bankers Life and Casualty Company's motion to quash subpoena. On April 19, 2021, Plaintiff Nancy Lang filed a putative class action lawsuit against the Defendant, Colonial Penn Life Insurance Company ("Colonial Penn"), in the United States District Court for the Northern District of Florida. Lang alleges that she and other unidentified members of the National Do Not Call Registry (the "DNC Registry") received unsolicited and unwanted phone calls marketing Colonial Penn insurance products, in violation of the Telephone Consumer Protection Act (the "TCPA") (Lang v. Colonial Penn Life Ins. Co., No. 4:21-cv-00165 (N.D.Fla)). On Oct. 22, 2021, Lang subpoenaed a third party, Bankers Life and Casualty Co., to produce a witness knowledgeable on seven topics of testimony pursuant to Federal Rule of Civil Procedure 30(b)(6). Before the Court is Bankers Life's motion to quash the Rule 30(b)(6) subpoena pursuant to Federal Rule of Civil Procedure 45(c)(3). For the reasons set forth here, the Court grants Bankers Life's motion to quash in part, denies it in part, and modifies the scope of Lang's subpoena to eliminate any undue burden that it might otherwise impose on Bankers Life. Both Bankers Life and Colonial Penn are wholly owned subsidiaries of CNO Financial Group, Inc. Bankers Life operates more than 100 offices throughout the country and employs more than 4,000 "independent sales agents," who call potential customers and offer Bankers Life insurance products. Each Bankers Life agent is also licensed to sell products on behalf of Colonial Penn and other CNO subsidiaries. Ms. Lang -- whose number is listed on the DNC registry -- alleges that she received calls advertising Colonial Penn's life insurance services in May, June, and July of 2020. Although Lang describes the calls as "unsolicited," Colonial Penn has taken the position that Lang "requested information about insurance products" from a website on Aug. 7, 2019, thereby, consenting to receiving phone calls from insurance providers. By purchasing a "lead" from this website, Bankers Life was able to learn of Lang's interest in insurance products and access her contact information. Bankers Life entered the lead into its lead management system, which prompted at least two of its independent agents to call Lang and attempt to sell her Colonial Penn products. Ms. Lang issued the subpoena at issue here after learning that it was not Colonial Penn employees, but agents for both Colonial Penn and Bankers Life using Bankers Life's phone system, who had called her on Colonial Penn's behalf. Although the subpoena was not properly labeled as a Rule 30(b)(6) notice, the Court construes it as such and Lang does not assert it was anything else. Bankers Life filed the instant motion to quash on Nov. 23, 2021, arguing, among other things, that the subpoena "seeks irrelevant and non-existent information." As noted in both parties' briefs, Lang also filed a document subpoena seeking related information. Bankers Life similarly objected to the document subpoena, but Lang has not moved to compel Bankers Life to produce those documents. Accordingly, only the deposition subpoena is at issue here. Ms. Lang asks that the Court transfer this action to the Northern District of Florida (where she filed her complaint) or, in the alternative, compel Bankers Life to comply with her subpoena request. The Court will address each argument in turn. Request to Transfer Lawsuit As a threshold matter, the Court denies Lang's motion to transfer this action to the Northern District of Florida pursuant to Rule 45(f). The Court finds no exceptional circumstances warranting a transfer of this action to the Northern District of Florida. Bankers Life -- which has its principal place of business in this District -- does not consent to transfer, and the Court finds no exceptional circumstances to warrant transfer. Although Lang argues that the court overseeing the underlying action "is very familiar with the facts of the case," the Northern District of Florida has yet to be presented with a single opposed motion in the underlying action. Furthermore, Bankers Life's substantive objections to the subpoena based on burden "require no familiarity with the underlying litigation and do not present exceptional circumstances warranting transfer." Finally, because it is so early in the discovery process (discovery is not due to be completed until March 6, 2023) and because the case has been stayed pending the resolution of this motion, (Lang, No. 4:21-cv-00165), Judge Cummings says there is little risk of this decision interfering with the overseeing court's management of the case. The Court, therefore, finds that Bankers Life's interest in obtaining local resolution of the motion outweighs the concerns identified by Lang. Request for Bankers Life to Comply With Subpoena Under the TCPA, the Federal Communications Commission ("FCC") imposes financial penalties on commercial telemarketers, who make unsolicited calls to phone numbers listed on the DNC registry. Ms. Lang's 30(b)(6) deposition notice primarily seeks information regarding: (1) calls made by Bankers Life agents on behalf of Colonial Penn, and (2) Bankers Life's method of obtaining consent to make those calls. Lang argues that she is entitled to this information because it is relevant to her class certification efforts and Colonial Penn's affirmative defense of consent. Bankers Life seeks to quash the subpoena on the grounds that Lang's topic requests are unduly burdensome, are unreasonably cumulative, and seek irrelevant information. Although the Court agrees that many of Lang's requests are inartfully phrased, much of the information she seeks is relevant under the broad purview of Rule 26 and would not subject Bankers Life to any undue burden. Accordingly, the Court rules that Bankers Life must prepare a 30(b)(6) witness to testify on topics 2, 4, 5, 6, and 7 as narrowed here and it need not prepare a witness to testify on topics 1 and 3. Ms. Lang is pursuing this putative class action on behalf of all persons in the United States whose telephone numbers had been listed on the DNC Registry for at least thirty-one days when they received multiple telemarketing calls from, or on behalf of, Colonial Penn within a twelve-month period within the four years preceding the filing of Lang's Complaint through trial. Topics 2 and 4 of Lang's deposition notice seek information that would help her identify potential class members. Judge Cummings holds that Bankers Life must present a witness prepared to testify regarding the general nature of its telemarketing system (topics 2 & 4). Bankers Life need only prepare a witness to testify about the general circumstances under which its independent sales agents make calls on behalf of Colonial Penn. Judge Cummings notes that this information will allow Lang to better understand Bankers Life's system and better tailor future discovery requests related to class certification. The information is also reasonably available to Bankers Life. Judge Cummings also holds that Bankers Life must present a witness prepared to testify about how the company identifies parties, who have consented to receiving telemarketing calls (topics 5 and 6). Topics 5 and 6 of Lang's deposition notice seek information related to Colonial Penn's assertion that Lang consented to receive calls marketing its insurance services. Bankers Life once again argues that providing this information would be unduly burdensome because it does not track on behalf of which company each call is made or whether a call is made for telemarketing or some other purpose. Again, Judge Cummings notes, this argument ignores the highly relevant information sought through these requests that can be provided without undue burden. Indeed, Topics 5 and 6 seek much more generalized information than Topics 2 and 4. Primarily, Lang seeks to learn about the process through which individuals consent to being contacted by Bankers Life sales agents -- whether through signed writings or website visits. Bankers Life will prepare a deponent, who is prepared in good faith to respond to questions related to these topics. That said, because Topics 5 and 6 reference Bankers Life's "claims" and "assertions," the Court reiterates that Bankers Life is not a party to this action. It has not made any "claims" over the course of this litigation, nor can it account for any claims made by Colonial Penn, despite their relationship as co-subsidiaries of CNO. To account for the requests' references to claims made by Bankers Life and Colonial Penn, the Court narrows Topic 5 to information regarding: (1) Bankers Life's methods of obtaining consent for calls made by its sales agents; (2) the existence of any writings evidencing such permission; and (3) when Bankers Life obtains consent through individuals accessing a website, what statements inform consumers of their right to withdraw that consent and the procedures they must use to do so. The Court similarly narrows Topic 6 to include information regarding: (1) the process through which Bankers Life purchases telephone numbers; and (2) whether and how it ensures that the individual owners of the purchased numbers have consented to receiving telemarketing calls related to Bankers Life, Colonial Penn, or CNO. Bankers Life need not prepare its 30(b)(6) witness to testify regarding Topics 1, 3, or 7. Judge Cummings finds that the remaining topics outlined in Lang's 30(b)(6) deposition notice are overbroad and unreasonably cumulative. Bankers Life may consider them stricken from the deposition notice and need not prepare a witness to testify on the subjects they describe. For these reasons, the Court will grant Bankers Life's motion to quash in part, deny it in part, and modify the scope of the subpoena as specified here. Subject to any orders by the Northern District of Florida modifying this schedule, the parties will meet and confer how to proceed with the deposition of Bankers Life's corporate representative, which will be conducted before Nov. 7, 2022. A full-text copy of the Court's Memorandum Opinion and Order dated Sept. 26, 2022, is available at https://tinyurl.com/4mj8scuw from Leagle.com. CONCORD REAL: Faces Cowan Suit for Unpaid Wages ----------------------------------------------- TYLER COWAN, individually and on behalf of all other Aggrieved Employees; Plaintiff v. CONCORD REAL ESTATE SERVICES, INC.; MOSS MANAGEMENT SERVICES, INC., a California corporation, and DOES 1 through 50, inclusive, Defendants, Case No. 22SMCV01729 (Cal. Super., Los Angeles Cty., Oct. 4, 2022) is a class action brought by the Plaintiff against the Defendant for alleged violations of the California Labor Code. The Plaintiff alleges that the Defendants failed to provide employment records; pay overtime and double time; provide rest and meal periods; pay minimum wage; keep accurate payroll records and provide itemized wage statements; pay reporting time wages; pay split shift wages; pay all wages earned on time; pay all wages earned upon discharge or resignation; reimburse necessary business-related expenses; and provide notice of paid sick time and accrual. The Plaintiff was hired by the Defendants with the job title of Property Director on March 5, 2021 until July 21, 2021. Concord Real Estate Services, Inc. is a real estate agency in Beverly Hills, California.[BN] The Plaintiff is represented by: Haig B. Kazandjian, Esq. Cathy Gonzalez, Esq. Kevin Crough, Esq. HAIG B. KAZANDJIAN LAWYERS, APC 801 North Brand Boulevard, Suite 970 Glendale, CA 91203 Telephone: (818) 696-2306 Facsimile: (818) 696-2307 E-mail: haig@hbklawyers.com cathy@hbklawyers.com kevin@hbklawyers.com COSAN CONSTRUCTION: Sanchez Sues Over Unpaid Minimum, Overtime Wage ------------------------------------------------------------------- Freddy De Jesus Sanchez, Francisco Gonzalez Cardenas, Samuel Martinez, Antonio Cuevas Mauricio, Norberto Garcia Lucio, Cruz Leyva Jovencio, Pascual Chavez Dela Rosa, Angel Sebastian Eusebio Cortes and Angel Marcelino Dionicio, individually and on behalf of all others similarly situated v. COSAN CONSTRUCTION CORP., AMCG INC. and TERENCE FERGUSON and AARON KING, as individuals, Case No. 7:22-cv-08420 (S.D.N.Y., Oct. 3, 2022), is brought to recover damages for the Defendants' egregious violations of state the Federal and New York State labor laws, and federal wage and hour laws arising out of the Defendants failure to pay the Plaintiffs minimum and overtime wages. Although Plaintiffs regularly worked approximately 55-64 hours, the Defendants did not pay the Plaintiffs at a wage rate of time and a half for his hours regularly worked over 40 hours in a work week, a blatant violation of the overtime provisions contained in the FLSA and NYLL. 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. KW NY CONSTRUCTION INC., is a New York domestic business corporation, organized under the laws of the State of 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 CREATION LAWN CARE: Jackson Sues Over Refusal to Pay Overtime Wages ------------------------------------------------------------------- Travis Jackson, Individually and on behalf of all Others similarly situated v. CREATION LAWN CARE & LANDSCAPING LLC, and ELIAS GONZALEZ-ROBLERO, Case No. 6:22-cv-01805-WWB-DCI (M.D. Fla., Oct. 4, 2022), is brought against the Defendants for the Defendants' refusal to pay overtime wages or premium pay for all hours worked in excess of 40 hours per week in violation of the Fair Labor Standards Act. The Plaintiff was an hourly, nonexempt employees who was not paid a premium for all hours worked over 40 in each and every work week. The Plaintiff was paid only straight time for hours worked over 40 in the workweek. The Defendants offered no justification for their willful refusal to pay overtime premiums to hourly, non-exempt employees, including the Plaintiff as mandated by the FLSA. The Defendants have willfully and unlawfully withheld and refused to pay the Plaintiff and all hourly paid laborers, overtime wages and premiums for overtime hours worked in violation of the nation's federal wage law, the FLSA, says the complaint. The Plaintiff was first hired to work for the Defendants as an hourly paid, non-exempt employee under the title of lawn care worker in November 2020. Creation Lawn Care & Landscaping is a for profit Florida company with principal offices located at Palm Bay, Florida.[BN] The Plaintiff is represented by: Mitchell Feldman, Esq. FELDMAN LEGAL GROUP 6916 W. Linebaugh Ave #101 Tampa, Fl 33625 Phone: (813) 639-9366 Fax: (813) 639-9376 Email: mfeldman@flandgatrialattorneys.com CREDIT CONTROL: Maldonado Suit Moved to Cook County Circuit Court ----------------------------------------------------------------- Judge Robert M. Dow, Jr., of the U.S. District Court for the Northern District of Illinois, Eastern Division, remands the lawsuit captioned MARGARITA MALDONADO, Plaintiff v. CREDIT CONTROL SERVICES, INC., doing Business as CREDIT COLLECTION SERVICES, Defendant, Case No. 21-cv-4481 (N.D. Ill.), to the Circuit Court of Cook County for further proceedings. The matter is before the Court on the Plaintiff's motion to remand the case to the Circuit Court of Cook County, Illinois, pursuant to 28 U.S.C. Section 1447(c) for lack of federal jurisdiction. Plaintiff Maldonado incurred a debt for "personal, family and household purchases" that was owed to Laboratory Corporation of America Holdings ("Labcorp"). When the Plaintiff later defaulted on that debt, Defendant Credit Control Services, Inc., a debt collection agency doing business as Credit Collection Services, sought to recover the debt on behalf of Labcorp. On Nov. 11, 2020, the Defendant sent the Plaintiff a form collection letter seeking to collect her debt. The letter conveyed account information, including the amount of debt the Plaintiff owed, the identity of her original creditor, and an account number assigned to her. Because of certain "markings * * * characteristic of" form letters generated by a third-party letter vendor, the Plaintiff alleges that the Defendant hired such a vendor to create the letter she received. For the third-party letter vendor to populate some or all of the Plaintiff's personal information into a prewritten template, the Defendant must have given the vendor certain personal information about her. Specifically, the Plaintiff alleges that the Defendant gave her name, address, status as debtor, details of her account, and other personal information to a third-party letter vendor to create the letter she received. Additionally, the letter the Plaintiff received was sent in an envelope with a glassine window on the front. Within the window, various numbers and a bar code could be seen. The Plaintiff does not address the significance of either the numbers or bar code. On June 29, 2021, the Plaintiff filed a putative class action in the Circuit Court of Cook County, Chancery Division, alleging that the Defendant's disclosure of her information to a third-party letter vendor violated 15 U.S.C. Section 1692, the Fair Debt Collection Practices Act of 1977 ("FDCPA"), which prohibits various abusive debt collection practices. According to the Plaintiff, the Defendant violated Section 1692c(b) by communicating her personal information with a third-party letter vendor and Section 1692f(8) by sending a collection letter with symbols other than the Defendant's business name or address on the envelope. On Aug. 23, 2021, the Defendant timely removed the action to federal court on the basis of federal question jurisdiction. On Oct. 29, 2021, the Plaintiff moved for remand to Illinois state court on the ground that she lacked Article III standing. Judge Dow that the key issue before the Court is whether the Plaintiff has Article III standing. As the Defendant invoked federal jurisdiction by removing this suit to federal court, it has the burden of establishing that the Plaintiff has standing. The Plaintiff seeks to remand her FDCPA claims to Illinois state court for lack of Article III standing. She contends that she has not suffered a concrete injury-in-fact; rather, she argues that she has only alleged a procedural FDCPA violation devoid of any concrete harm. The Defendant counters that the Plaintiff's statutory allegations are sufficient to support standing. According to the Defendant, the conduct the Plaintiff complains of has a sufficiently close relationship with common law invasion of privacy torts to constitute an injury-in-fact. In her complaint, the Plaintiff alleges that the Defendant violated Section 1692c(b) by communicating her "personal and confidential information" to a third-party letter vendor. In their briefs, both parties cite the Eleventh Circuit's decision in Hunstein v. Preferred Collection & Management Services, Inc., 994 F.3d 1341 (11th Cir.) ("Hunstein I"), and Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 17 4th 1016 (11th Cir. 2021), reh'g en banc granted, opinion vacated, 17 F.4th 1103 (11th Cir. 2021) ("Hunstein II"), and the current intra-district split as guidance for this Court's decision. In the wake of TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2203 (2021), many courts within this District have held that plaintiffs alleging a violation of Section 1692c(b) under similar facts as the Plaintiff here did not allege sufficient injury-in-fact for standing purposes, Judge Dow notes. After TransUnion, the Eleventh Circuit initially maintained its prior holding that the plaintiff had standing (Hunstein II, 17 F.4th at 1020). With this caselaw in mind and for many of the same reasons relied on by other judges within this District, Judge Dow finds that the Defendant cannot show that the Plaintiff suffered injury-in-fact sufficient to support Article III standing. Therefore, the Court lacks subject matter jurisdiction over the Plaintiff's Section 1692c(b) claim. The Court holds that the Plaintiff did not suffer an injury-in-fact sufficient for standing to assert her claim under Section 1692c(b). Therefore, the Court lacks subject matter jurisdiction and remands the claim to Illinois state court. The Plaintiff also alleges that the Defendant violated Section 1692f(8). In her complaint, the Plaintiff alleges that the Defendant violated this subsection when it sent her a collection letter that contained symbols other than its address or business name on the envelope. In the instant motion, the Plaintiff argues that she lacks standing because she did not allege that the information revealed in the glassine window of the envelope -- the numbers and bar code visible therein -- contained private information. The Defendant argues that the Court should infer that the numbers and bar code contain encoded information concerning what the Plaintiff says is her confidential information and that potential public disclosure of private facts is sufficient for standing purposes. The Court agrees with the Plaintiff that she lacks standing because the Defendant failed to demonstrate that the information disclosed on the envelope -- numbers and a bar code -- was, in fact, private. At the outset, the Court rejects the Defendant's argument that the risk of "potential public disclosure of private facts" is sufficient for standing. Even if the Plaintiff had alleged such a risk, the Supreme Court has clarified in TransUnion that a risk of harm constitutes an injury-in-fact in the context of a request for injunctive relief, not a claim for damages. As the Plaintiff only seeks statutory damages, Judge Dow finds that the Defendant's argument fails. The Defendant's call for the Court to infer that the numbers and bar code on the envelope that the Plaintiff received contained encoded information concerning what she says is her confidential information is similarly unavailing, Judge Dow states. As noted, a "disclosure of private information" is an intangible harm that can be deemed concrete for standing purposes. However, an integral part of such a disclosure is that the information is in fact private. Judge Dow opines, among other things, that the Defendant cannot ascribe any meaning, private or otherwise, to the numbers and bar code on the front of the envelope it sent to the Plaintiff. Accordingly, Judge Dow holds that the Defendant has failed to show that the Plaintiff's alleged violation of Section 1692f(8) deals with a disclosure of private information such that it bears a close relationship to a tort comparator sufficient for standing. For these reasons, the Court holds that the Plaintiff did not suffer an injury-in-fact sufficient for standing to assert her claim under Section 1692f(8). For the reasons discussed in this Memorandum Opinion and Order, the Court concludes that the Plaintiff's Motion to Remand must be granted. The Clerk is directed to remand this case to the Circuit Court of Cook County for further proceedings. Civil case terminated. A full-text copy of the Court's Memorandum Opinion and Order dated Sept. 26, 2022, is available at https://tinyurl.com/y7pubxmm from Leagle.com. DELAWARE: Adkins Appeals Ruling in Gibbs Suit to 3rd Cir. --------------------------------------------------------- TYRONE M. ADKINS, a non-party, is taking an appeal from a court order granting in part and denying in part the Defendants' motion to dismiss the lawsuit entitled Dion D. Gibbs, et al., individually and on behalf of others similarly situated, Plaintiffs, v. Governor of Delaware, et al., Defendants, Case No. 1-20-cv-01301, in the U.S. District Court for the District of Delaware. The Plaintiffs, individually and on behalf of all other similarly situated prisoners who are currently incarcerated at the Sussex Correctional Institution (SCI) in Georgetown, Delaware, bring this class action suit against the Defendants for alleged violation of their constitutional rights by failing, at first instance, to require and then appropriately implement adequate safeguards to prevent and control the spread of COVID-19 throughout SCI. On March 17, 2022, the Defendants filed a motion to dismiss the Plaintiffs' complaint for failure to state a claim, which the Court granted in part and denied in part through an Order entered by Judge Stephanos Bibas on August 25, 2022. The Court dismissed with prejudice all claims against the Delaware Department of Correction and against the state officials in their official capacities because the Eleventh Amendment bars state-law claims against state officials when the relief sought directly affects the state itself. However, the Court granted the prisoners' claim against Warden Truman Mears for injunctive relief to proceed because it passes the Eighth Amendment. The appellate case is captioned as Dion Gibbs v. Governor of Delaware, et al., Case No. 22-2725, in the United States Court of Appeals for the Third Circuit, filed on September 16, 2022. [BN] Plaintiffs-Appellees DION D. GIBBS, et al., individually and on behalf of all others similarly situated, are represented by: Lauren H. Geiser, Esq. TROUTMAN PEPPER 350 South Grand Avenue Two California Plaza, Suite 3400 Los Angeles, CA 90071 Telephone: (213) 928-9856 - and - Douglas D. Herrmann, Esq. TROUTMAN PEPPER 1313 Market Street Suite 5100, Hercules Plaza P.O. Box 1709 Wilmington, DE 19899 Telephone: (302) 777-6552 - and - James H.S. Levine, Esq. TROUTMAN PEPPER 1313 Market Street Suite 5100, Hercules Plaza P.O. Box 1709 Wilmington, DE 19899 Telephone: (302) 777-6536 - and - Kenneth A. Listwak, Esq. TROUTMAN PEPPER 1313 Market Street Suite 5100, Hercules Plaza P.O. Box 1709 Wilmington, DE 19899 Telephone: (302) 777-6520 - and - Ralph C. Surman, Jr., Esq. TROUTMAN PEPPER 501 Grant Street Union Trust Building, Suite 300 Pittsburgh, PA 15219 Telephone: (412) 454-5810 Defendants-Appellees GOVERNOR OF DELAWARE, et al., are represented by: Stacey Bonvetti, Esq. DEPARTMENT OF JUSTICE GAME INFORCEMENT 655 South Bay Road Blue Hen Corp. Center Suite 1A Dover, DE 19901 Telephone: (302) 526-5871 Not Party-Appellant Tyrone M. Adkins appears pro se. DERMALOGICA LLC: Sued Over Unlawful Collection of Biometric Data ---------------------------------------------------------------- Amira Powe, individually and on behalf of all others similarly situated v. DERMALOGICA, LLC, Case No. 2022LA000874 (Ill. 18th Judicial Cir. Ct., DuPage Cty., Oct. 4, 2022), is brought against the Defendant for violating the Illinois Biometric Information Privacy Act, to put a stop to its intentional, reckless and/or negligent unlawful collection, use, and storage of Plaintiff's and the putative Class members' sensitive biometric data, to have the Defendant return or destroy the biometric information that it has retained, and to issue a written retention policy and/or to comply with any written policy that it issues, among other things. To sell more of its skin-care products, the Defendant encourages visitors to its website to use its "Face Mapping" tool. With this technology, the Defendant scans consumers' faces, analyzes their skin, and makes product recommendations based on that analysis. The Defendant's Face Mapping tool has been used by many people in Illinois--a state that, through BIPA, imposes strict requirements on private entities' collection and use of biometric identifiers, such as "scans of face geometry," and biometric information (collectively, "biometrics"). Despite these requirements, which have been on the books for over ten years, The Defendant has been violating BIPA by collecting and storing consumers' face-geometry scans with its Face Mapping tool. Under BIPA, private entities may not obtain an individual's biometrics unless they inform that person in writing that biometric identifiers or information will be collected or stored. As part of this notice requirement, private entities collecting biometrics must also inform those persons in writing of the specific purpose and length of time for which such biometrics are being collected, stored, and used. And critically, BIPA requires private entities collecting biometrics to obtain a written release from those persons authorizing the collection of their biometrics. To facilitate these notice and consent requirements, BIPA also requires private entities collecting biometrics to develop a publicly available policy establishing a retention schedule and guidelines for permanently destroying the biometrics collected. The Defendant violated each of these core requirements of BIPA. With its Face Mapping tool, the Defendant collects, uses, and stores individuals' biometrics. Nevertheless, the Defendant does not inform users in writing that it is collecting or storing their biometrics; does not inform users in writing of the specific purpose and length of time for which it is collecting, storing, or using the biometrics; and does not obtain a written release from users authorizing the collection of their biometrics. Nor does the Defendant provide a publicly available policy establishing a retention schedule and guidelines for permanently destroying these biometrics. The Plaintiff brings this action to prevent the Defendant from further violating the privacy rights of Illinois residents and to recover statutory damages for its unauthorized collection, storage, and use of these individuals' biometrics in violation of BIPA, says the complaint. The Plaintiff used The Defendant's Face Mapping tool when her face geometry was scanned and collected. Dermalogica is a skin-care company owned by the consumer-product giant Unilever.[BN] The Plaintiff is represented by: Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 221 West Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (847) 208-4585 Email: gklinger@milberg.com - and - Katrina Carroll, Esq. LYNCH CARPENTER, LLP 111 W. Washington Street, Suite 1240 Chicago, IL 60602 Phone: (312) 750-1265 Email: katrina@lcllp.com - and - Jonathan M. Jagher, Esq. FREED KANNER LONDON & MILLEN LLC 923 Fayette Street Conshohocken, PA 19428 Phone: (610) 234-6487 Facsimile: (224) 632-4521 Email: jjagher@fklmlaw.com DICKEYS BBQ PIT: Esparza Files Suit in S.D. California ------------------------------------------------------ A class action lawsuit has been filed against Dickeys BBQ Pit Inc., et al. The case is styled as Miguel Esparza, individually and on behalf of all others similarly situated v. Dickeys BBQ Pit Inc., Does 1 through 25, Case No. 3:22-cv-01502-DMS-BGS (S.D. Cal., Oct. 4, 2022). The nature of suit is stated as Other P.I. Dickey's BBQ Pit -- https://www.dickeys.com/ -- is the world's largest and fastest growing barbecue franchise.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS APC 4100 Newport Place Drive Suite 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com DIRECT ENERGY: Bid for Summary Judgment in Schafer Suit Granted --------------------------------------------------------------- In the case, RICHARD SCHAFER, Plaintiff v. DIRECT ENERGY SERVICES, LLC, Defendant, Case No. 19-CV-6907-FPG (W.D.N.Y.), the U.S. District Court for the Western District of New York grants the Defendant's motion for summary judgment. New York deregulated its natural-gas and electricity markets in 1996. This move allowed consumers to choose from a variety of companies selling residential energy, in addition to traditional utilities," citing Schafer v. Direct Energy Servs., LLC, 481 F.Supp.3d 141, 143 (W.D.N.Y. 2020)("Schafer I"). These companies are known as 'energy services companies.' Direct Energy is one such company that began to offer residential energy after deregulation. On Dec. 16, 2019, Schafer filed the putative class action against Direct Energy. After motion practice, only one of his claims remains: a statutory violation of New York General Business Law Section 349-d(7). That provision requires "every contract for energy services" and "all marketing materials provided to prospective purchasers of such contracts" to "clearly and conspicuously identify" all "variable charges." In his amended complaint, Schafer alleged that Direct Energy's contracts insufficiently disclosed the existence of variable charges in violation of this provision. In March 2020, Direct Energy moved to dismiss Schafer's amended complaint, arguing that its variable-rate disclosures were sufficient under New York law. There were two sets of contract materials at issue: the first set "was sent to Schafer when he initially enrolled in Direct Energy's fixed-rate plan," and the second was sent "before Schafer's fixed-rate plan was set to expire." In Schafer I, the Court agreed with Direct Energy as to both sets of materials, concluding that "Direct Energy's disclosures pass muster under Section 349-d(7)." On appeal, the Second Circuit vacated and remanded the matter, after concluding that the Court had impermissibly "considered evidence outside of" the amended complaint -- specifically, the contract materials that "Direct Energy had attached to its declarations in support of its motion to dismiss." The Second Circuit wrote: "If, given the arguments and the documents submitted by the parties, the District Court believed that the matter was ripe for summary judgment, then it should have converted Direct Energy's motion to dismiss into one for summary judgment under Rule 12(d). Only then should the District Court have evaluated whether Direct Energy's purported communications sufficed to meet its statutory obligations under Section 349-d(7) as a matter of law and in light of the undisputed facts." The Second Circuit did not address the substance of this Court's reasoning. On remand, the Court denied Direct Energy's supplemental motion to dismiss and directed the parties to proceed to discovery "concerning Schafer's individual Section 349-d(7) claim." Discovery is now complete. On Nov. 25, 2015, Schafer enrolled in Direct Energy's 12-month "fixed-rate natural gas plan." The parties dispute what materials Direct Energy sent to Schafer during their contractual relationship. Direct Energy has submitted evidence that on Nov. 30, 2015, it sent Schafer a set of documents that it refers to as the "Welcome Contract Materials." It has provided sworn declarations that describe the process by which Direct Energy generates and mails the "Welcome Contract Materials." Direct Energy uses a program called "LetterWriter," which combines a pre-set template with an individual customer's data to generate the "Welcome Contract Materials," which consist of (1) a welcome letter, (2) the terms and conditions, and (3) a customer disclosure statement. That PDF is saved to an internal customer database and sent to Direct Energy's print vendor for printing. The print vendor places each customer's set of "Welcome Contract Materials" into an envelope and deposits them with the U.S. Postal Service for delivery. It then sends back "daily mailing reports" that confirm what was printed, processed, and mailed that day. The declarations and attached exhibits show that this process was followed with respect to Schafer's "Welcome Contract Materials." This evidence sufficiently supports Direct Energy's factual assertion that "on Nov. 30, 2015, the Welcome Contract Materials were mailed to Mr. Schafer in a single envelope," and that Schafer thereafter received those materials in the same form that they were generated and mailed. In response, Schafer denies Direct Energy's factual assertion, arguing that Direct Energy's evidence only proves that his "Welcome Contract Materials" was sent to the print vendor for processing, not that those materials were actually sent to him. As an initial matter, the Court notes that, in his responsive Rule 56 Statement, Schafer does not actually cite any evidence denying receipt. Regardless, Direct Energy submitted evidence that it received confirmation from its print vendor that Schafer's materials were processed and mailed in accordance with its usual practices. It was not obligated to produce the individual person at the print vendor who mailed Schafer's materials. Given the absence of evidence to support Schafer's position, the Court takes as undisputed Direct Energy's assertion that it mailed to Schafer the "Welcome Contract Materials" on or about November 30, 2015, and that those materials were mailed to -- and received by -- Schafer in a single envelope and in the same form as they exist in Direct Energy's customer database. Next, the parties dispute whether Schafer ever read the "Welcome Contract Materials" that he received. Direct Energy cites Schafer's deposition testimony in the related electricity-plan case to assert that he "never saw the Welcome Contract Materials." Schafer denies this assertion but does not cite any evidence that he did, in fact, review the materials. Therefore, there appears to be no evidence, one way or the other, that Schafer read or reviewed the "Welcome Contract Materials" he received in connection with his enrollment in Direct Energy's natural-gas plan. Direct Energy asserts that, when Schafer's 12-month fixed-rate plan was about to expire, it mailed him "Renewal Contract Materials." For the same reasons discussed above with respect to the "Welcome Contract Materials," the Court takes as undisputed Direct Energy's assertions that it mailed to Schafer the "Renewal Contract Materials" on or about October 17, 2016; and that those materials were mailed to -- and received by -- Schafer in a single envelope and in the same form as they exist in Direct Energy's customer database. Likewise, there appears to be no evidence, one way or the other, that Schafer read or reviewed the "Renewal Contract Materials" he received in connection with the renewal of his Direct Energy natural-gas plan. Because Schafer did not take any action after Direct Energy notified him of the renewal, his gas plan "was automatically converted to a month-to-month variable rate" plan. Direct Energy began charging him under his variable-rate plan on Nov. 28, 2016. Schafer made his first payment under the variable rate-plan on Dec. 22, 2016, and ultimately paid $2,204.73 for natural gas supply while under the variable-rate plan. Following discovery on Schafer's individual statutory claim under New York General Business Law Section 349-d(7), Direct Energy moved for summary judgment. Schafer opposes the motion, and Direct Energy has filed its reply. Direct Energy argues that summary judgment is appropriate on several grounds. Because they are dispositive, the Court need only address two of those grounds. First, the "Welcome Contract Materials" and "Renewal Contract Materials" comply with Section 349-d(7). Second, Schafer has presented insufficient evidence that he was injured "by reason of" Direct Energy's alleged violation of Section 349-d(7). Judge Geraci concludes that neither the "Welcome Contract Materials" nor the "Renewal Contract Materials" violates Section 349-d(7). As discovery has revealed, the two sets of documents that Direct Energy submitted at the motion-to-dismiss stage are, in fact, the same "Welcome Contract Materials" and "Renewal Contract Materials" that it sent to Schafer when he enrolled and when he renewed, respectively. Accordingly, the Court's prior reasoning applies with equal force and mandates dismissal of Schafer's claim. If anything, Judge Geraci now finds the Court's conclusion reinforced by Schafer's deposition testimony in the related electricity action. In Schafer I, the Court was skeptical that any variable-rate provisions contained in the boilerplate terms and conditions were clear and conspicuous, insofar as they were "buried among other boilerplate terms, not set out or highlighted, and the same font as the surrounding material." But it found that the materials were rendered sufficient by the inclusion of easy-to-read charts that clearly disclosed the fact of the variable-rate plans. In his deposition testimony, Schafer admitted that upon review of even just the boilerplate terms and conditions, he was able to discern fairly quickly that he would be charged a variable rate upon renewal. This only bolsters the Court's conclusion that Direct Energy's disclosures were sufficient under Section 349-d(7). Accordingly, Direct Energy is entitled to summary judgment on Schafer's statutory claim. Direct Energy also argues that Schafer has presented insufficient evidence to satisfy causation. Judge Geraci agrees. Schafer does not present sufficient evidence that the contract materials at issue deceived him and thereby caused him an injury. The mere fact that Direct Energy allegedly committed a statutory violation does not permit Schafer to maintain a private right of action, as Section 349-d(10) makes clear. Therefore, the absence of evidence that Schafer reviewed or considered the materials -- and the corresponding absence of evidence that the materials deceived him and caused him injury -- is fatal to his claim. Mr. Schafer makes one other argument that merits brief comment. He contends that he is under no obligation to prove that he "was injured by reason of Direct Energy's conduct" because it is Direct Energy that has moved for summary judgment. As the party with the burden of proof at trial, however, he does have an obligation on summary judgment: "If the non-moving party bears the burden of proof at trial, it also bears the burden on a motion for summary judgment of initially pointing to evidence sufficient to prove each element of its claim." Accordingly, to avoid judgment as a matter of law, it was incumbent upon Schafer to present sufficient evidence of causation -- i.e., that the inconspicuousness of Direct Energy's variable-rate disclosures caused him injury. As discussed, he has failed to meet that burden because he has failed to cite any admissible evidence to show that he reviewed, or was otherwise exposed to, Direct Energy's contract materials such that those materials deceived him and caused him injury. Summary judgment is, therefore, appropriate on this basis, as well. For the reasons he stated, Judge Geraci grants Direct Energy's motion for summary judgment. The Clerk of Court is directed to enter judgment and close the case. A full-text copy of the Court's Oct. 4, 2022 Decision & Order is available at https://tinyurl.com/2fyp8vw6 from Leagle.com. DNATA AVIATION USA: Curtis Files FLSA Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against DNATA Aviation USA, Inc. The case is styled as Jacori Curtis, on behalf of himself and all others similarly situated v. DNATA Aviation USA, Inc., Case No. 1:22-cv-05932 (E.D.N.Y., Oct. 4, 2022). The nature of suit is stated as Other Labor. DNATA Aviation USA -- https://www.dnata.com/en -- is one of the world's largest air services providers offering ground handling, cargo, travel, and flight catering services across five continents.[BN] The Plaintiff is represented by: Mohammed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 675 Third Avenue, Ste. 1810 New York, NY 10017 Phone: (718) 669-0714 Email: mgangat107@gmail.com DXRACER USA: Toro Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed East Dxracer USA, LLC. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. Dxracer USA, LLC, Case No. 1:22-cv-08485 (S.D.N.Y., Oct. 5, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. DXRacer -- https://www.dxracer.com/ -- offers the world leading gaming chair brand, provides every user with top quality & world's 1st modular design to deliver unparalleled gaming experience.[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 EARTH'S ELEMENTS: Lawal Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Earth's Elements. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Earth's Elements, Case No. 1:22-cv-08490 (S.D.N.Y., Oct. 5, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Earth's Elements -- https://www.earthselements.com/ -- offers healing crystals.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com EDFINANCIAL SERVICES: Quinn Suit Removed to N.D. Illinois --------------------------------------------------------- The case styled as Anthony Quinn, individually and on behalf of all others similarly situated v. Edfinancial Services, LLC, Nelnet Servicing, LLC, Case No. 2022CH08824 was removed from the Circuit Court of Cook County, to the U.S. District Court for the Northern District of Illinois on Oct. 5, 2022. The District Court Clerk assigned Case No. 1:22-cv-05467 to the proceeding. The nature of suit is stated as Other P.I. EdFinancial Services -- https://edfinancial.com/ -- is a financial company which provides student loans servicing for 15 of the top 100 lenders in the USA, including regional and national banks, secondary markets, state agencies and other student loan providers.[BN] The Plaintiff appears pro se. EPIC AIRCRAFT: Court Strikes 3 Affirmative Defenses in Hanney Suit ------------------------------------------------------------------ In the case, BRUNO HANNEY, and PAUL TAYLOR, individually and on behalf of all others similarly situated, Plaintiffs v. EPIC AIRCRAFT LLC, a Delaware limited liability company, Defendant, Case No. 6:21-cv-01199-MK (D. Or.), Magistrate Judge Mustafa T. Kasubhai of the U.S. District Court for the District of Oregon, Eugene Division, grants in part and denies in part the Plaintiffs' motion to strike nine of the Defendant's 19 affirmative defenses. The Plaintiffs filed the putative class action against Epic, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and for violating the Oregon Unlawful Trade Practices Act ("UTPA"), Or. Rev. Stat. ("ORS") Sections 646.605, et seq. Epic manufactures airplanes. In 2014, it announced its plan to design, develop, and manufacture a single-engine, six-seat turboprop E1000 aircraft, with hopes of receiving Federal Aviation Administration ("FAA") certification in 2015. It took reservations for the E1000 aircraft at a price of $2.75 million. Epic's customers, including the Plaintiffs, entered into aircraft customer reservation agreements and submitted the required monetary deposits. After several years of reassuring customers that their E1000 aircraft orders would be fulfilled, Epic received FAA type and production certification in November 2019 and July 2020. After FAA certification for the E1000, Epic informed its customers with reservation agreements that the aircraft would not be available for sale. Instead, it offered to sell a "new" E1000 GX aircraft model to its existing E1000 customers for a retail price of $3.85 million. Epic refused to honor its customer reservation agreements to manufacture and sell E1000 aircraft to the Plaintiffs and other aircraft reservation holders. In August 2021, the Plaintiffs filed the lawsuit on behalf of themselves and other reservation agreement holders, alleging that Epic breached the terms of E1000 aircraft customer reservation agreements and made material misrepresentations and omissions in connection with the marketing and sale of E1000 aircraft. The Defendant moved to dismiss and moved to strike. The Court recommended that those motion be denied. The Defendant filed an Answer with 19 affirmative defenses, nine of which the Plaintiffs now move to strike. The Plaintiffs move to strike nine of the Defendant's affirmative defenses. They assert that its first, sixth, twelfth, sixteenth, seventeenth, and eighteenth affirmative defenses are either "not legally cognizable defenses or improperly challenge the elements of their prima facie case." They also assert that the Defendant's eighth, ninth, and tenth affirmative defenses are insufficiently pled, and thus fail to give them sufficient notice of the defense. As noted, the Plaintiffs assert that the Defendant's first, sixth, twelfth, sixteenth, seventeenth, and eighteenth affirmative defenses "simply deny the matters alleged in their Complaint or assert matters that would not otherwise bar their recovery." Judge Kasubhai opines that motions to strike are disfavored. However, a motion to strike may be proper if it will make the trial less complicated or if allegations being challenged are so unrelated to a plaintiff's claim as to be unworthy of any consideration as a defense and that their presence in the pleading will be prejudicial to the moving party. Judge Kasubhai concludes that the Plaintiffs will not be prejudiced by the Defendant's affirmative defenses, nor has they explained how the defenses could have no possible bearing on the subject matter of the litigation. Accordingly, their motion as to the Defendant's first, sixth, twelfth, seventeenth, and eighteenth affirmative defenses is denied. Next, the Plaintiffs contend that the Defendant's eighth, ninth, and tenth affirmative defenses are insufficiently pled. Although the fair notice standard does not require a detailed statement of facts, "it does require a defendant to state the nature and grounds for the affirmative defense." Judge Kasubhai agrees with the Plaintiffs that the Defendant's eighth, ninth, and tenth affirmative defenses are insufficiently pled. As to the eighth affirmative defense, the Plaintiffs failed to mitigate their damages. As to the ninth affirmative defense, the Plaintiffs' claims are barred in whole or in part by the applicable statute of limitations, include ORS 646.638(6). Finally, as to tenth affirmative defense, the Plaintiffs have delayed in asserting their rights, and, because of this delay, they are no longer entitled to bring an equitable claim. The Defendant may still seek leave to amend its answer. For instance, if it requires discovery to determine the factual basis to assert an affirmative defense, the Defendant may seek leave to amend its answer once it discovers such facts. For these reasons, Judge Kasubhai denies the Plaintiffs' motion to strike as to the Defendant's first, sixth, twelfth, sixteenth, seventeenth, and eighteenth affirmative defenses and grants as to its eighth, ninth, and tenth affirmative defenses. The Defendant may seek leave to amend its eighth, ninth, and tenth affirmative defenses to make those defenses more definite. A full-text copy of the Court's Oct. 4, 2022 Opinion & Order is available at https://tinyurl.com/4thzejer from Leagle.com. EQT CORPORATION: Laudato Seeks Class Action Certification Order --------------------------------------------------------------- In the class action lawsuit captioned as PATRICIA ASBURY, ET AL., V. EQT CORPORATION, ET AL., Case No. 2:18-cv-01005-CB (W.D. Pa.), the putative class Plaintiff Domenic Laudato, Jr. moves this Court for a class action certification order pursuant to Rule 23. At issue in this litigation is gas storage space deep underground the property of alleged members, which the Defendants have utilized allegedly without full rights for decades. The Defendant Equitrans, L.P. received an "Order Issuing and Amending Certificates" from the Federal Energy Regulatory Commission in 2007. The entire FERC Order chronicles the history of the Gas Storage Fields. The FERC Order both issued and amended existing certificates of public convenience and necessity authorizing Equitrans to operate underground natural gas storage fields. EQT is an American energy company engaged in hydrocarbon exploration and pipeline transport. It is headquartered in EQT Plaza in Pittsburgh, Pennsylvania. A copy of the Plaintiff's motion dated Sept. 29, 2022 is available from PacerMonitor.com at https://bit.ly/3RJpDmG at no extra charge.[CC] The Plaintiff is represented by: Jordan H. Walker, Esq. Shiloh Daum, Esq. SEVER STOREY, LLP 881 3rd Ave. SW, Suite 101 Carmel, IN 46032 Telephone: (317) 575-9942 - and - Elizabeth M. Tarasi, Esq. Louis M. Tarasi, Jr., Esq. TARASI & TARASI P.C. 510 Third Avenue Pittsburgh, PA 15219 ESTATES LLC: Avirta Appeals Atty. Fees & Costs Ruling to 4th Cir. ----------------------------------------------------------------- AVIRTA, LLC, et al. are taking an appeal from a court order granting the Plaintiffs' motion for attorneys' fees and costs in the lawsuit entitled Brian C. Williams, et al., individually and on behalf of others similarly situated, Plaintiffs, v. The Estates LLC, et al., Defendants, Case No. 1:19-cv-01076-CCE-JLW, in the U.S. District Court for the Middle District of North Carolina. The Plaintiffs, on behalf of themselves and all other similarly situated homeowners and property owners, bring this class action suit against the Defendants for engaging in a bid-rigging scheme in violation of Section 1 of the Sherman Antitrust Act. The Plaintiffs want to enjoin the Defendants and their co-conspirators, including their directors, officers, employees, agents and all other persons acting or claiming to act on their behalf, from selling any property purchased at a foreclosure sale in North Carolina, from bidding at any foreclosure sale in North Carolina, and from engaging in any other contract, combination, or conspiracy having a similar purpose or effect. According to the complaint, the Plaintiffs lost their homes and properties through the Estates' illegal bidding practices or otherwise were deprived of proceeds in excess of the foreclosed debt because when properties are sold at foreclosure auctions, the proceeds are used to pay off the mortgage and other debt attached to the property, with any remaining proceeds paid to the homeowner. The complaint asserts that Plaintiffs suffered serious harm, losing valuable equity in their homes if not their homes themselves, because of Defendants' anti-competitive behavior, which distorted the process in North Carolina foreclosure sales. The Defendants unfairly and unjustly profited from their wrongdoing, adds the complaint. On April 22, 2021, the Court denied the Plaintiffs' second motion to certify class, and ordered the parties to meet, confer, and file a joint submission identifying which of the Defendants are unrelated to the claims of the named Plaintiffs and the best mechanism for dismissing the claims against them. On June 2, 2022, the Court granted in part and denied in part a request for permanent injunction filed by the Plaintiffs. Judge Catherine C. Eagles also entered a memorandum opinion and order on August 10, 2022, granting the Plaintiffs' motion for a charging order. However, the motion was denied as to Avirta, LLC's purported interest in Celona, LLC, and Citadel Management of North Carolina, LLC, and Mr. Brooksby's purported interest in The Estates, Timbra, Avirta, King Family Enterprises and the 80 to 100 equity share LLCs. On July 29, 2022, the Plaintiffs filed a motion for attorneys' fees and costs. On September 9, 2022, the Court granted the Plaintiffs' motion for attorneys' fees and costs, and ordered the Defendants to pay the Plaintiffs' attorneys $399,270. From the fee requested totaling of $431,270, the Court subtracted 80 hours of attorney time at $400/hour for class certification time. The Court ruled that a fee award of $399,270 is reasonable and fairly compensates the Plaintiffs' counsel for time spent successfully pursuing the Plaintiffs' claims. The appellate case is captioned as Brian Williams v. Avirta, LLC, Case No. 22-1982, in the United States Court of Appeals for the Fourth Circuit, filed on September 16, 2022. [BN] Plaintiffs-Appellees BRIAN C. WILLIAMS, et al., individually and on behalf of all others similarly situated, are represented by: Dhamian Blue, Esq. BLUE LLP 205 Fayetteville Street Raleigh, NC 27601 Telephone: (919) 833-1931 - and - Jonathan Teal Dickerson, Esq. J.C. WHITE LAW GROUP, PLLC 100 Europa Drive Chapel Hill, NC 27517 Telephone: (919) 794-6725 - and - James C. White, Esq. J.C. WHITE LAW GROUP, PLLC 100 Europa Drive Chapel Hill, NC 27517 Telephone: (919) 246-4676 Defendants-Appellants AVIRTA, LLC, et al., are represented by: John David Matheny, II, Esq. 516 Driver Highway Mooresville, NC 28117 - and - Steven W. Shaw, Esq. LAW OFFICE OF STEVEN W. SHAW 918 South Crescent Way Mapletoon, UT 84664 Telephone: (801) 318-8084 EVOLUS INC: Reilly Files Suit in Fla. Super. Ct. ------------------------------------------------ A class action lawsuit has been filed against Evolus, Inc. The case is styled as Erin Reilly, individually and on behalf of all others similarly situated v. Evolus, Inc., Case No. 2022-11515-CIDL (Fla. Super. Ct., Volusia Cty., Sept. 19, 2022). The case type is stated as "Antitrust/Trade Regulations." Evolus -- http://www.evolus.com/-- is a medical aesthetics company focused on providing physicians and their patients with expanded choices in aesthetic procedures and treatments.[BN] The Plaintiff is represented by: Benjamin W. Raslavich, Esq. KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Phone: (813) 422–7782 Facsimile: (813) 422–7783 Email: ben@theKRfirm.com FCA CANADA: Certification Denied for Takata Air Bag Recall ---------------------------------------------------------- Glenn Zakaib, Esq., David Elman, Esq., and John Hunter, Esq., of Borden Ladner Gervais LLP, in an article for Mondaq, report that what is the preferable procedure for addressing a dangerous product -- a recall or a class action? In Coles v FCA Canada1, the Court denied certification of a proposed class action against an auto manufacturer that had already initiated recalls to replace defective air bag components at no cost to consumers. The air bags were designed, manufactured and tested by Takata, and installed by most auto manufacturers. Takata went bankrupt following the discovery of the defects and pleaded guilty to having devised a scheme to defraud the auto manufacturing industry through materially false, fraudulent and misleading reports and other information that concealed the truth about the air bags. Recall campaigns were initiated in the U.S. and Canada, and proposed class actions focusing on the same defective components were commenced. In the Court's view, the recall was "the crux, hub and nub, nuts and bolts, and pith and substance" of the proposed class action. Although the defects were a result of the design and manufacturing negligence of Takata, the Plaintiff in Coles argued the defendant car manufacturer's recalls were inadequate and should be supplemented by additional notice and compensation. The Court disagreed and found that a class action was not preferable to the defendant's recall campaign when judged with reference to the purposes of a class action. The Plaintiff's argument that their class action was preferable was, in part, undermined by the timing of the motion for certification (and potential common issues trial) in relation to the ongoing recall campaign. In reaching its decision, the Court commented on the state of the law relating to pure economic loss following Atlantic Lottery Corp. Inc. v Babstock2 and 1688782 Ontario Inc. v Maple Leaf Foods Inc.3, which limit the scope of recovery for a dangerous product to mitigating or averting the danger (including simply discarding the defective product). Although noting that other auto manufacturers had consented to class action settlements arising from Takata air bag recalls, the Court commented that the defendant: "…has proceeded to provide a free of charge replacement of the beta-airbags, which would appear to cover off its responsibility to pay compensatory damages for its liability for manufacturing and distributing vehicles with a dangerous automotive part." Although not relevant to the result, the Court commented on the prospective application of section 5(1.1) of the amended Class Proceedings Act, 1992. This section requires that a class proceeding be "superior" to reasonably available means of determining the entitlement of class members to relief or addressing the impugned conduct of a defendant, and that questions of fact or law common to the class "predominate" over questions affecting individual class members. Although section 5(1.1) did not apply to this case, the Court noted that if it had, the preferable procedure criterion would not be satisfied in the context of an existing recall. This case stands for the proposition that an existing recall may be preferable to a class action, even where additional pure economic losses are alleged. In such circumstances, the purposes of class proceedings -- access to justice, behaviour modification, and judicial economy -- may no longer be served by a class action. The Court's reference to the new amendments to the Class Proceedings Act suggests that this argument will continue to be available to defendant manufacturers, assemblers and importers. Footnotes 1 2022 ONSC 5575. 2 2020 SCC 19. 3 2020 SCC 35.[GN] FLORIDA: NIL Class Action Over Antitrust Violations Pending ----------------------------------------------------------- Riley Overend, writing for Swim Swam, reports that more than a year after college athletes were granted the ability to profit off their name, image, and likeness (NIL), publicity rights are slowly but surely trickling down to the high school level. Nearly 20 states now allow high school athletes to monetize their NIL, a jump up from five last fall. Oklahoma became the 18th NIL-friendly state, and Oregon officially joined the expanding list on Oct. 10. Illinois, Nevada, and Pennsylvania could be next to do away with amateurism at the high school level. Notably, though, only one state within the SEC footprint -- Louisiana -- has hopped aboard the bandwagon. Perhaps keeping top quarterback recruit Arch Manning and his $3.4 million NIL valuation in-state for his senior year of high school proved to be enough incentive. Lucrative deals for football and men's basketball players tend to dominate the headlines, but the issue of NIL affects all high school sports. Take Claire Curzan, for example, who had to choose between endorsement opportunities and swimming for her high school team last season as a senior because of North Carolina's restrictions. Curzan's Tokyo Olympic teammates, Bella Sims and Katie Grimes, hardly got a choice at all as they were deemed ineligible in Nevada for accepting funds from USA Swimming. "It is hard to decide on getting an education versus making a living," said Curzan's mother, Tracy, who played soccer and lacrosse at Harvard. "If you've got a gift, you shouldn't have to choose between an education and that . . . (NIL) just opened up all these new avenues." Curzan opted to wait until after her last high school meet to cash in on her publicity rights, but not everyone has been so patient. Last year, quarterback Quinn Ewers left his Texas high school early to enroll at Ohio State, where he quickly inked a multi-million-dollar deal that is outlawed in Texas among high school athletes. Texas is unique in that its authority comes from state law rather than a high school association. Jada Williams, a 17-year-old women's basketball recruit, received several offers for NIL deals last year that she couldn't accept because of Missouri's policy on amateurism. So Williams took matters into her own hands and moved to California, turning her massive social media following into a six-figure income. States that are slow to adapt to modernizing views on athletes' rights risk losing top-tier talent. Denying high school athletes their publicity rights could even have legal repercussions, too. In Florida, a pending class-action lawsuit from Cincinnati Reds draftee and Vanderbilt baseball commit Sal Stewart claims that the state's guidelines against NIL violate antitrust law. Supporters of amateurism say that stripping high school athletes of their publicity rights is in their own best interest, for their protection even. "They're too young to be making decisions like that," said Mississippi High School Athletics Association executive director Rickey Neaves. They may be young, but they're certainly not dumb. With the majority of states still prohibiting NIL monetization at the high school level, more student-athletes will follow the money in search of the same publicity rights afforded to other students who don't play sports. [GN] FOCUS SERVICES: Gann Sues Over Unpaid Compensations --------------------------------------------------- Evelyn Gann, Nicole Schultz, and Keyundrea White, individually, and on behalf of others similarly situated v. FOCUS SERVICES ILLINOIS, LLC, a Utah Limited Liability Company, and FOCUS SERVICES, LLC, a Utah Limited Liability Company, Case No. 2:22-cv-00633-DBP (D. Utah, Sept. 29, 2022), is brought arising from the Defendant's willful violations of the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act and to seek an award of unpaid wages, an award of liquidated damages, injunctive and declaratory relief, attendant penalties and an award of attorneys' fees and costs. The Defendant's call center services rely on the hourly employees Defendant employs to provide over-the-phone customer service. These hourly employees have a variety of internal job titlee but are collectively referred to herein as customer service representatives ("CSRs"). The Defendants require their CSRs to work a full-time schedule, plus overtime, however, the Defendant does not compensate CSRs for all work performed. The Defendants require their CSRs to perform compensable work tasks off-the-clock before and after their scheduled shifts and during their unpaid meal periods. This policy results in CSRs not being paid for all time worked, including overtime. The Plaintiffs seek to represent in this action all current and former CSRs who are similarly situated to each other in terms of their positions, job duties, pay structure and Defendants' violations of federal and state law. The Defendants knew or should have known how long it takes CSRs to complete their off-the-clock work, and the Defendants could have properly compensated the Plaintiffs and the putative Collective and Class for this work, but did not. The Defendants knew or should have known that CSRs, including the Plaintiffs, worked overtime hours for which they were not compensated, says the complaint. The Plaintiffs were employed by the Defendants as CSRs from in Illinois. The Defendants offers call center services to business across the country.[BN] The Plaintiffs are represented by: Charles R. Ash, IV, Esq. ASH LAW, PLLC 402 W. Liberty St. Ann Arbor, MI 48178 Phone: (734) 234-5583 Email: cash@nationalwagelaw.com - and - Oscar Rodriguez, Esq. HOOPER HATHAWAY, P.C. 126 Main St Ann Arbor, MI 48104-1903 Phone: (734) 662-4426 Email: orod@hooperhathaway.com - and - Jesse S. Brar, Esq. PRESTON BRAR, LLC 670 East 3900 South, Suite 10 Salt Lake City, UT 84107 Phone: (801) 269-9541 Fax: (801) 577-1988 Email: jesse@prestonbrar.com FOODEX NEW YORK: Dawkins Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Foodex New York, Inc. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. Foodex New York, Inc., Case No. 1:22-cv-05917 (E.D.N.Y., Oct. 3, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Foodex -- https://www.foodexsupermarket.com/ -- is in the Grocery Stores business.[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 FORD MOTOR: Militello Sues Over Failure to Disclose Pump Defect --------------------------------------------------------------- Mark Militello, individually and on behalf of all others similarly situated v. FORD MOTOR COMPANY, Case No. 6:22-cv-06425 (W.D.N.Y., Oct. 5, 2022), is brought against Ford, on behalf of all persons in New York who purchased a Class Vehicle from an authorized Ford dealer, asserting claims on behalf of the New York Class for violation of the New York consumer protection statutes, breach of implied warranty, and common law fraud, as a result of the Defendant's failure to disclose the Water Pump Defect to consumers. Ford represents that the internal water pumps installed within the engines of the Class Vehicles should last for the useful life of the engines without the need for any service, maintenance, or repair. Indeed, Ford omits the water pump from the service and maintenance schedules, which identify any vehicle components that need to be maintained, repaired, or replaced within the first 150,000 miles of operation. Not only does Ford represent that the water pump will not need to be serviced or maintained, but the internal location of the water pump in the engine conceals it from view and inspection when other routine service is being performed on the Class Vehicles. Despite knowing for more than a decade that its vehicles incorporating the Ford Cyclone Engine, branded as the Duratec engine (the "Cyclone Engine"), contain a defect in design (the "Water Pump Defect" or "Defect") that can cause the internal chain-driven water pump ("Internal Water Pump") to prematurely fail well before the end of the useful life of the engine, leading to a costly replacement or catastrophic engine failure due to the water pump's placement inside the engine block. Ford failed to disclose the Water Pump Defect to consumers or fix the Defect and instead, concealed it. The Plaintiff and members of the New York Class relied on Ford's representation and had a reasonable expectation that the Internal Water Pump in the Class Vehicles did not require costly maintenance, service, repair, or replacement before the vehicles were driven at least 150,000 miles. Ford did not disclose the Defect or that Class Vehicles may suffer a sudden Internal Water Pump failure that poses significant safety risks when the Class Vehicles suddenly become inoperable due to catastrophic engine failure, nor are they warned that due to the relatively inaccessible location of the Internal Water Pump in the engine, the cost to repair or replace the defective Internal Water Pump is significant, even in situations where the entire engine is not destroyed. The Plaintiff and members of the New York Class did not receive the benefit of their bargain as a result of Ford's misconduct and overpaid for Class Vehicles with the undisclosed Defect. As a direct result of the Defendant's unlawful conduct, the Plaintiff and members of the Class have been harmed and are entitled to, inter alia, actual damages, including: damages for diagnosis, repair and/or replacement of the water pump, damaged engine parts or the entire engine; damages for the diminished value of their vehicles; overpayment damages; cost of repair damages; diminished value damages; compensatory, statutory, and punitive damages; attorneys' fees; costs; and/or restitution, says the complaint. The Plaintiff bought a 2016 Ford Explorer from Genesee Valley Ford, an authorized Ford dealer, in Avon, New York for personal, family, or household purposes in March 2019. Ford designs, engineers, manufactures, markets, and/or sells vehicles throughout the United States, including New York, through its network of authorized dealers.[BN] The Plaintiff is represented by: Samuel H. Rudman, Esq. Robert M. Rothman, Esq. Francis P. Karam, Esq. Philip T. Merenda, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631/367-7100 Fax: 631/367-1173 Email: srudman@rgrdlaw.com rrothman@rgrdlaw.com fkaram@rgrdlaw.com pmerenda@rgrdlaw.com - and - Mark J. Dearman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Phone: (561) 750-3000 Fax: (561) 750-3364 Email: mdearman@rgrdlaw.com - and - Joseph H. Meltzer, Esq. Melissa L. Troutner, Esq. Tyler S. Graden, Esq. Jonathan F. Neumann, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 667-7706 Facsimile: (610) 667-7056 Email: jmeltzer@ktmc.com mtroutner@ktmc.com tgraden@ktmc.com jneumann@ktmc.com - and - E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Dennis A. Lienhardt, Esq. Emily E. Hughes, Esq. William Kalas, Esq. THE MILLER LAW FIRM PC 950 W University Dr., Ste. 300 Rochester, MI 48307 Phone: (248) 841-2200 Email: epm@miller.law ssa@miller.law dal@miller.law eeh@miller.law wk@miller.law GEISINGER HEALTH: Ex-Employees Appeal COVID Vaccine Suit Dismissal ------------------------------------------------------------------ The Daily Item reports that more than 100 former Geisinger employees have appealed the dismissal of a lawsuit filed last year after they were terminated following the health system's implementation of a COVID-19 vaccine and testing policy. The lawsuit was dismissed by federal Judge Matthew Brann in August out of the U.S. District Court for the Middle District. The former employees are now appealing to the Third Circuit court, according to court documents filed. The former employees identify nine issues to be raised on appeal, including that the lower court did not properly review the evidence regarding religious exemptions, that the district court "erroneously determined approved vaccines were available when they were not," and that the court ignored the "properly-plead . . . cause for action for employment discrimination." The dismissed class-action was filed in November by 106 Geisinger employees against the health system's mandated twice-weekly tests for COVID-19 if they did not get a vaccine. The suit was filed by employees who received religious exemptions to the health system's vaccine mandate and claimed they were threatened with termination if they were to reject three PCR or antigen tests. Brann also denied the plaintiff's motion for an extension of time and directed the clerk of court to "close the case file." The former employees, from 14 Geisinger affiliates, were seeking judgment for lost wages and benefits, loss of future pay, compensatory and punitive damages and attorney's fees. When dismissing the case in August, Brann wrote that plaintiff's arguments came down to the "Same premise: COVID-19 vaccines and tests are unsafe and ineffective . . . The evidence consists of nothing more than a collection of distorted statements and anti-vaccine hocus-pocus." Litigation had been ongoing for months before Brann granted Geisinger's motion to dismiss. [GN] GEORGIA GIFTS: Toro Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Georgia Gifts and More, LLC. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. Georgia Gifts and More, LLC, Case No. 1:22-cv-08489 (S.D.N.Y., Oct. 5, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Georgia Gifts and More -- https://www.georgiagiftsandmore.com/ -- have provided Georgia theme gifts, foods and gift baskets for all occasions.[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 GIFTED NURSES: Fails to Protect Employees' Info, Covington Says --------------------------------------------------------------- CHERYL COVINGTON, individually, and on behalf of all others similarly situated, Plaintiff v. GIFTED NURSES, LLC d/b/a GIFTED HEALTHCARE, Defendant, Case No. 1:22-cv-04000-VMC (N.D. Ga., Oct. 4, 2022) is a class action against the Defendant for negligence, negligence per se, breach of express and implied contractual duties, unjust enrichment, and invasion of privacy arising from Gifted Healthcare's failure to adequately protect Plaintiff's highly sensitive personal information. According to the complaint, the Plaintiff and Members of the Class have suffered significant injury and damages due to a data breach permitted to occur by Gifted Healthcare, and the resulting misuse of their personal information and fraudulent activity, including fraudulent attempts to open bank accounts, decreased credit scores, monetary damages including out-of-pocket expenses, including those associated with the reasonable mitigation measures they were forced to employ, and other damages. The Plaintiff and the Class also now forever face an amplified risk of further misuse, fraud, and identity theft due to their sensitive personal information falling into the hands of cybercriminals as a result of the tortious conduct of Defendant, says the suit. Plaintiff Covington is a natural person and citizen of the state of Georgia and a former employee of Gifted Healthcare. Gifted Healthcare is a nationwide staffing company which employs persons in the nursing profession across the U.S.[BN] The Plaintiff is represented by: Joseph B. Alonso, Esq. GREGORY, DOYLE, CALHOUN & ROGERS, LLC 49 Atlanta Street Marietta, GA 30060 Telephone: (770) 422-1776 E-mail: jalonso@gdcrlaw.com - and - Samuel Strauss, Esq. Raina Borelli, Esq. TURKE & STRAUSS, LLP 613 Williamson Street Suite 201 Madison, WI 53703 Telephone: (608) 237-1775 E-mail: Sam@turkestrauss.com AustinD@turkestrauss.com - and - Lynn A. Toops, Esq. Lisa M. La Fornara, Esq. COHEN & MALAD, LLP One Indiana Square Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636-6481 E-mail: ltoops@cohenandmalad.com llafornara@cohenandmalad.com - and - J. Gerard Stranch, IV, Esq. Peter J. Jannace, Esq. Andrew E. Mize, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 E-mail: gerards@bsjfirm.com martys@bsjfirm.com peterj@bsjfirm.com GODIVA CHOCOLATIER: Settlement Costs Not Excluded From Coverage --------------------------------------------------------------- Kelly Helton, Esq., writing for ALM PropertyCasualty360, reports that a Delaware Superior Court judge has ruled that the settlement costs of a class action lawsuit against the chocolate company Godiva are not excluded from coverage under the confectioner's D&O policy with Endurance American Insurance Company or its excess policy with National Union Fire Insurance Company, a subsidiary of American International Group. Godiva was hit with a class action lawsuit in 2019, facing 13 counts of consumer protection and common law violations in California and New York. The plaintiffs in that lawsuit claimed the statement "Belgium 1926" appearing on labels for Godiva confections deceived consumers about the candy's origins. The suit went to mediation, where the parties eventually settled. Godiva is expected to pay $20 million in attorney fees and monetary relief in addition to associated fees and class representative awards, pending final approval of the settlement. [GN] GOOGLE LLC: Minahan Sues Over Unlawfully Retained Information ------------------------------------------------------------- Burke Minahan, individually and on behalf of all others similarly situated v. Google, LLC, Case No. 3:22-cv-05652 (N.D. Cal., Sept. 30, 2022), is a consumer of Google's video rental service, Google Play, which unlawfully retains Plaintiff's video rental history and personally identifiable information, such as his name, addresses, and credit card information, in violation of Minnesota law. One line of Google's business is streaming video rental services, whereby Google, through its streaming products, such as Google Play, Google TV, and YouTube (the "Services"), makes prerecorded audiovisual materials (i.e., videos) available for consumers to rent for a limited time, such as movies and television shows. A consumer must have a Google account in order to rent a video, which can be created through the consumer's use of Google's email client, Gmail, by creating a non-email-based Google account, or by creating a YouTube account. Any time a user interacts with the Services, his or her activities are logged with the associated Google account. Google maintains records for consumers using the Services, including records of their account information, such as their names, email addresses, phone numbers, and billing addresses. In addition to personal information of the account holder, Google keeps a record of the consumers' video rental histories, which identifies every video rented by the consumers using the Services. Thus, Google, keeps a digital record on thousands of consumers throughout Minnesota, which includes personal information and a detailed record of its consumers' video rental histories. Google maintains these digital records in violation of Minnesota law, which requires video rental companies, like Google, to "destroy personally identifiable information as soon as practicable, but no later than one year from the date the information is no longer necessary for the purpose for which it was collected." Google stores its consumers' personal information in violation of the protections established by the Minnesota legislature. Google does not destroy its consumer's personal information as soon as practicable. Google does not even destroy its consumer's personal information within one year from the date the information is no longer necessary for the purpose for which it was collected. Indeed, on information and belief, Google stores its consumer's personal information, including video rental history, indefinitely. Thus, Google has knowingly retained the personally identifiable information, including sensitive video rental histories, of thousands of Minnesota consumers, in violation of Minnesota, says the complaint. The Plaintiff has a Google account and has rented and viewed videos through that account, including on Google Play and YouTube. Google LLC is a massive technology company with lines of business that span a broad spectrum of industries.[BN] The Plaintiff is represented by: Joseph Henry (Hank) Bates, III, Esq. CARNEY BATES & PULLIAM, PLLC 519 W. 7th Street Little Rock, AR, 72201 Phone: 501-312-8500 Fax: 501-312-8505 Email: hbates@cbplaw.com HB INNOVATIONS: Lawal Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against HB Innovations, Inc. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. HB Innovations, Inc., Case No. 1:22-cv-08460 (S.D.N.Y., Oct. 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. HB innovation -- https://www.hbinov.com/ -- is a technology company implementing mobile-based solutions for business development and process innovations.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com HL SUPERMARKET: Sanchez Sues Over Unpaid Minimum, Overtime Wages ---------------------------------------------------------------- Atermio Vidals Sanchez, on behalf of himself and other similarly situated v. HL SUPERMARKET INC., and JOHN LIN, individually, Case No. 1:22-cv-05881-NGG-PK (E.D.N.Y., Oct. 3, 2022), Is blood pursuant to the Fair Labor Standards Act and the New York Labor Law, to recover from the Defendants unpaid wages, minimum wages and overtime compensation; liquidated damages and statutory penalties pursuant to the New York Wage Theft Prevention Act; prejudgment and post-judgment interests; and attorney's fees and costs. The Plaintiff worked over 40 hours per week. The Plaintiff was not paid hourly for all hours worked; his designated hourly rate was below the New York state minimum wage, and he was not paid overtime compensation at time and a half applicable minimum wage for work in excess of 40 hours each week. The Plaintiff, was not provided with true and accurate wage statements detailing his hours worked; hourly rate of pay; the basis for his compensation, itemizing any withholdings, and setting forth his net pay. The Defendants knowingly and willfully operated their business with a policy of not paying the FLSA overtime rate, or the New York state minimum wage or overtime rate to the plaintiff for work performed over 40 hours in a work week, says the complaint. The Plaintiff was employed by the Defendant as a stock person and general helper in the produce department in five aisles in the grocery store, beginning in January 2020, through September 26, 2022. The Defendant is a domestic business entity organized and existing under the laws of the state of New York.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 10 Grand Central 155 East 44th Street – 6th Floor New York, NY 10165 Phone: (212) 209-3933 Fax: (212) 209-7102 Email: pcooper@jcpclaw.com HOT SHOTS: Vinson Files FLSA Suit in W.D. Arkansas -------------------------------------------------- A class action lawsuit has been filed against Hot Shots - El Dorado, et al. The case is styled as Vanessa Vinson, Millicent Turner, individually and on behalf of all others similarly situated v. Hot Shots - El Dorado, Mahendra Enterprises, LLC, Harvinder Dod, Case No. 1:22-cv-01057-SOH (W.D. Ark., Oct. 4, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Hotshots -- https://hotshotsnet.com/ -- is a Sports Bar & Grill and is the perfect place to meet with friends and enjoy great food and cold beer and all the games, all the time.[BN] The Plaintiffs are represented by: Josh Sanford, Esq. SANFORD LAW FIRM 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Phone: (501) 221-0088 Fax: (888) 787-2040 Email: josh@sanfordlawfirm.com HP INC: Leflar Suit Remanded to Circuit Court of Lonoke County -------------------------------------------------------------- In the case, SARAH LEFLAR, Plaintiff v. HP, INC., Defendant, Case No. 4:22-CV-00690-BRW (E.D. Ark.), Judge Billy Roy Wilson of the U.S. District Court for the Eastern District of Arkansas, Central Division, grants the Plaintiff's Motion to Remand and denies as moot the Defendant's Motion to Dismiss. The case arises out of the warranties the Defendant provides with computers that it manufactures and sells. The Plaintiff alleges the warranties prohibit the use of third-party repair or parts in violation of the Magnuson-Moss Warranty Act ("MMWA"). The Plaintiff filed her Complaint on June 23, 2022, in the Circuit Court of Lonoke County, Arkansas, alleging a violation of the MMWA. On Aug. 1, 2022, the Defendant filed its Notice of Removal, asserting jurisdiction under the Class Action Fairness Act of 2005 ("CAFA"). The Plaintiff now moves to remand the case to state court. The Plaintiff contends the Court lacks subject matter jurisdiction over her claim under the MMWA, which contains some unique jurisdictional requirements for class actions brought in federal court. Alternatively, she contends that remand is also appropriate because Defendant failed to meet the $5 million amount-in-controversy threshold for CAFA removal. The Defendant contends the case should be dismissed for failure to state a claim for which relief can be granted under Federal Rules of Civil Procedure 12(b)(6) because the Plaintiff has failed to allege actual damages under the MMWA, or otherwise failed to sufficiently plead the elements of her claim. The Defendant contends that federal courts have jurisdiction under either subsection A or B in the appropriate circumstances including removal under CAFA. The later-enacted CAFA provides for federal jurisdiction over diversity class actions when the amount in controversy exceeds $5 million and there are at least 100 named and putative plaintiffs. The Eighth Circuit in Barclay v. ICON Health & Fitness, Inc., the court explained that the MMWA authorizes jurisdiction in two venues: (1) "any court of competent jurisdiction in any State or the District of Columbia," and (2) "an appropriate district court of the United States," and that the MMWA's jurisdictional requirements applies only to the second venue (an appropriate district court). The court found that because it had jurisdiction under CAFA, it was a "court of competent jurisdiction in any State," and the MMWA's jurisdictional requirements did not apply in that situation. In support of its decision, the court cited a decision from the Sixth Circuit in Kuns v. Ford Motor Co., where the circuit court affirmed the district court's finding that it could exercise jurisdiction under CAFA even if it did not have jurisdiction under the MMWA, because "CAFA was passed with the clear intention of expanding federal court jurisdiction over class actions". Judge Wilson agrees with the analysis and holds that satisfaction of the MMWA's jurisdictional requirements is not necessary in light of the Court's jurisdiction under CAFA. Accordingly, the Plaintiff's motion to remand is denied on this point. Under CAFA, federal courts have jurisdiction over class actions in which the amount in controversy exceeds $5 million in the aggregate; there is minimal (as opposed to complete) diversity among the parties, i.e., any class member and any defendant are citizens of different states; and there are at least 100 members in the class." The only disputed factor is whether the amount in controversy exceeds $5 million, which the Defendant must establish by a preponderance of the evidence. The Defendant provides the affidavit of Jeanette Diamond, its North American Sales Finance Director, who asserts that between June 23, 2021 and July 29, 2022, Defendant had $5,114,279.55 in direct sales in Arkansas. It asserts that, since the Plaintiff alleges it illegally voids the product warranty, where it "agrees to repair or replace products with a manufacturing defect or failure, the maximum value of this right (and the amount in controversy) to each putative class member is the replacement value of the product." Additionally, it suggests that the Plaintiff's attorney fees, which can be added to the total amount for consideration under CAFA in this case, could exceed $1 million. Judge Wilson finds that the Defendant has failed to meet its burden to establish that the overall cost of the requested injunctive relief and declaratory judgment exceeds CAFA's amount-in-controversy threshold. It has not provided any information regarding the cost associated with allowing third party repairs compared to its current warranty expenditures. Accordingly, even considering the possible attorney's fees in the case, it failed to meet its burden of establishing the statutory minimum under CAFA by a preponderance of the evidence. Based on the findings of fact and conclusions of law, Judge Wilson grants the Plaintiff's Motion to Remand. The Clerk of the Court is directed to remand the case to the Circuit Court of Lonoke County, Arkansas. The Defendant's Motion to Dismiss is denied as moot. A full-text copy of the Court's Oct. 4, 2022 Order is available at https://tinyurl.com/mrxckrac from Leagle.com. IAC/INTERACTIVECORP: Pension Trust Appeals Case Dismissal Ruling ---------------------------------------------------------------- Plaintiffs Construction Industry and Laborers Joint Pension Trust for Southern Nevada Plan A and Hallandale Beach Police Officers' and Firefighters' Personnel Retirement Trust filed an appeal from a court ruling entered in the lawsuit entitled In re Match Group, Inc. Derivative Litigation, No. 2020-0505, in the Court of Chancery of the State of Delaware. On June 24, 2020, a shareholder class action and derivative lawsuit was filed in Delaware state court against then IAC/InterActiveCorp (now Match Group, Inc.), then IAC Holdings, Inc. (now IAC/InterActiveCorp), IAC's Chairman and Senior Executive, Barry Diller, former Match Group (as a nominal defendant only), and the ten members of former Match Group's board of directors at the time of the MTCH Separation, challenging, on behalf of a putative class of then Match Group public shareholders, the agreed-upon terms of the MTCH Separation. The gravamen of the complaint is that the terms of the MTCH Separation are unfair to former Match Group and unduly beneficial to IAC as a result of undue influence by IAC and Mr. Diller over the then Match Group directors who unanimously approved the transaction. The complaint asserted direct and derivative claims for: (i) breach of fiduciary duty against IAC and Mr. Diller as former controlling shareholders of Match Group, (ii) breach of fiduciary duty against the Match Group directors who unanimously approved the MTCH Separation, (iii) breach of contract (i.e., a provision of formerMatch Group's charter), (iv) breach of the implied covenant of good faith and fair dealing, and (v) tortious interference with contract against IAC. The complaint sought various declarations and damages in an unspecified amount. On September 24, 2020, the defendants filed motions to dismiss the complaint. On January 8, 2021, instead of responding to the motions to dismiss, the plaintiff, joined by another plaintiff, Boilermakers National Annuity Trust, filed an amended complaint. In addition, on January 7, 2021, another complaint challenging the MTCH Separation was filed against substantially the same defendants in the same court, which case was captioned Construction Industry & Laborers Joint Pension Trust for Southern Nevada Plan A v. IAC/InterActiveCorp et al. (Delaware Chancery Court). The two cases have been consolidated under the caption In re Match Group, Inc. Derivative Litigation, No. 2020-0505. On March 15, 2021, the court issued an order appointing Construction Industry and Laborers Joint Pension Trust for Southern Nevada Plan A as lead plaintiff in the litigation and directing it to file a consolidated complaint by April 14, 2021, and on that date the lead plaintiff filed the consolidated complaint. On June 22, 2021, the defendants filed motions to dismiss the consolidated complaint. Plaintiffs Construction Industry and Laborers Joint Pension Trust for Southern Nevada Plan A and Hallandale Beach Police Officers' and Firefighters' Personnel Retirement Trust appeal from a Memorandum Opinion dated September 1, 2022 entered by Vice Chancellor Morgan T. Zurn of the Court of Chancery of the State of Delaware dismissing their Amended and Supplemented Verified Consolidated Stockholder Class Action and Derivative Complaint. The appellate case is captioned as CONSTRUCTION INDUSTRY AND LABORERS JOINT PENSION TRUST FOR SOUTHERN NEVADA PLAN A AND HALLANDALE BEACH POLICE OFFICERS' AND FIREFIGHTERS' PERSONNEL RETIREMENT TRUST, individually and on behalf of all others similarly situated and derivatively on behalf of nominal Defendant MATCH GROUP, INC., Plaintiffs-Appellants, v. IAC/INTERACTIVECORP, BARRY DILLER, JOEY LEVIN, SHARMISTHA DUBEY, AMANDA GINSBERG, ANN L. MCDANIEL, THOMAS J. MCINERNEY, GLENN SCHIFFMAN, PAMELA S. SEYMON, ALAN G. SPOON, MARK STEIN, and GREGG WINIARSKI, Defendants-Appellees, MATCH GROUP, INC., a Delaware corporation, Nominal Defendant-Appellee, Case No. 368,2022, in the Supreme Court of the State of Delaware, filed on Oct. 3, 2022.[BN] Plaintiffs-Appellants CONSTRUCTION INDUSTRY AND LABORERS JOINT PENSION TRUST FOR SOUTHERN NEVADA PLAN A AND HALLANDALE BEACH POLICE OFFICERS' AND FIREFIGHTERS' PERSONNEL RETIREMENT TRUST, individually and on behalf of all others similarly situated and derivatively on behalf of nominal Defendant MATCH GROUP, INC. are represented by: Michael Hanrahan, Esq. J. Clayton Athey, Esq. Corinne Elise Amato, Esq. Kevin H. Davenport, Esq. Jason W. Rigby, Esq. PRICKETT, JONES & ELLIOTT, P.A. 1310 N. King Street Wilmington, DE 19801 Telephone: (302) 888-6500 - and - Lee D. Rudy, Esq. Eric L. Zagar, Esq. J. Daniel Albert, Esq. Maria T. Starling, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 - and - Robert D. Klausner, Esq. KLAUSNER, KAUFMAN, JENSEN & LEVINSON 7080 N.W. 4th Street Plantation, FL 33317 Telephone: (954) 916-1202 IFIT HEALTH: Baron Sues Over Defective At-Home Fitness Equipment ---------------------------------------------------------------- JOHN BARON and JOEL MILLET, individually and on behalf of all those similarly situated, Plaintiffs v. iFIT HEALTH AND FITNESS, INC., a Delaware Corporation, Defendant, Case No. 1:22-cv-01304-UNA (D. Del., Oct. 4, 2022) seeks recovery for Defendant's breach of express warranty, breach of various implied warranties, unjust enrichment, negligent misrepresentation, and fraudulent concealment and violations of the Magnuson Moss Warranty Act, the Florida Deceptive Unfair Trade Practices Act, and the New York General Business Law. The case arises from Defendant's alleged sale of iFIT branded fitness equipment that offers users streamed workouts, which are plagued by severe performance and connectivity issues that cause disruption in the streaming of workouts to the equipment. The Plaintiffs assert that it is only after buying the equipment and paying for the iFIT service that they and other consumers discover that the equipment they purchased at a substantial premium over traditional offerings suffers from such issues that effectively render the equipment useless. iFIT Health and Fitness, Inc. is a long-time purveyor of at-home fitness equipment -- such as treadmills, stationary bikes, elliptical machines, rowers and other strength training equipment -- sold under the NordicTrack, ProForm, Freemotion, and Matrix brand names.[BN] The Plaintiffs are represented by: Ian Connor Bifferato, Esq. THE BIFFERATO FIRM 1007 N Orange Street, 4th Floor Wilmington, DE 19801 Telephone: (302) 429-0907 E-mail: cbifferato@tbf.legal - and - Daniel O. Herrera, Esq. Edward Khatskin, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 150 S. Wacker Dr., Suite 3000 Chicago, IL 60606 Telephone: (312) 782-4880 Facsimile: (312) 782-4485 E-mail: dherrera@caffertyclobes.com ekhatskin@caffertyclobes.com - and - Joseph G. Sauder, Esq. Mark B. DeSanto, Esq. SAUDER SCHELKOPF 1109 Lancaster Avenue Berwyn, PA 19312 Telephone: (888) 711-9975 Facsimile: (610) 421-1326 E-mail: jgs@sstriallawyers.com mbd@sstriallawyers.com IG GROUP: CFD Investors Join Suit Over Unfair Business Practices ---------------------------------------------------------------- Laura Dew, writing for Money Management, reports that a class action is being prepared against IG Markets on behalf of thousands of investors who lost an estimated $800 million trading contracts for difference (CFDs). Law firm Piper Alderman and legal finance team Omni Bridgeway were working on behalf of up to 20,000 investors against IG Markets, alleging IG consistently marketed CFDs to inexperienced investors and facilitated those without proper checks and balances. Data from the Australian Securities and Investments Commission (ASIC) suggested total losses by investors with IG Markets of over $800 million. A CFD was a type of leveraged financial product which enabled investors to take a position on the movement of an underlying asset without owning the asset itself. Strict conditions on CFDs had been imposed in Australia last year by the ASIC as it found 72% of retail clients lost money when using these products. The average loss between 2016 and 2021 was $9,000 a year when almost 70% of clients earnt less than $80,000 per annum. This indicated a "very real concern" that the products were unsuitable for unsophisticated and vulnerable retail investors and should not have been marketed to every Australians who had little knowledge of trading. Piper Alderman partner, Martin del Gallego, said: "CFDs are little more than a form of gambling which has left tens of thousands of Australians out of pocket. Our proposed class action will seek to recover these losses for investors who should never have been exposed to trading in such complex, high-risk products". The proposed class action would be registered in the Federal Court, following further investigation by Piper Alderman and Omni Bridgeway. [GN] INNOFOODS USA: Walcoff Suit Removed to S.D. California ------------------------------------------------------ The case styled as Carol Walcoff, on behalf of herself and all others similarly situated v. Innofoods USA, Inc., Costco Wholesale Corporation, Does 1 through 20, Case No. 37-02022-00034301-CU-FR-CTL was removed from the Superior Court of California, San Diego, to the U.S. District Court for the Southern District of California on Sept. 29, 2022. The District Court Clerk assigned Case No. 3:22-cv-01485-MMA-AHG to the proceeding. The nature of suit is stated as Contract Product Liability. Innofoods USA, Inc. -- http://www.inno-foods.com/-- providing food service professionals with innovative food products that save time, money, and result in stronger commercial outcomes.[BN] The Plaintiff is represented by: Kiley Lynn Grombacher, Esq. Marcus Bradley, Esq. BRADLEY GROMBACHER LLP 31365 Oak Crest Drive Suite 240 Westlake Village, CA 91361 Phone: (805) 270-7100 Email: kgrombacher@bradleygrombacher.com mbradley@bradleygrombacher.com The Defendants are represented by: Titania Jean Mooney, Esq. SKADDEN ARPS SLATE MEAGHER AND FLOM 300 South Grand Avenue, Suite 3400 Los Angeles, CA 90071-3144 Phone: (213) 687-5000 - and - William Alexander Delgado, Esq. 601 South Figueroa Street, Suite 2130 Los Angeles, CA 90017 Phone: (213) 335-6999 Fax: (213) 335-7802 Email: wdelgado@dtolaw.com INSOMNIA COOKIES: Court Vacates July 11 Judgment in Hine Labor Suit ------------------------------------------------------------------- In the case, TAYLOR RAE HINE, on her own behalf and on behalf of others similarly situated, Plaintiff v. INSOMNIA COOKIES, et al., Defendants, Case No. 22-CV-6075L (W.D.N.Y.), Judge David G. Larimer of the U.S. District Court for the Western District of New York grants the Defendants' motion to vacate judgment entered on July 11, 2022, and enter an amended judgment. Ms. Hine filed the action on Feb. 11, 2022 as a collective and class action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201 and the New York Labor Law against Insomnia, Krispy Kreme Inc., and Seth Berkowitz. The complaint alleged that the Plaintiff worked as a delivery driver for Insomnia from October 2019 to August 2021, and that during that period Insomnia committed various violations of the FLSA and Labor Law with respect to her work hours and pay. The Plaintiff alleged that other employees were subject to the same practices. Krispy Kreme and Berkowitz are named as the corporate owner and CEO of Insomnia, respectively. The complaint sought certification of the case as a collective action under the FLSA and as a class action on the Labor Law claims, but the case never reached that stage, and no notice was ever issued to prospective class members. In June 2022, the Defendants moved, in separate motions, to dismiss the complaint and for summary judgment. While those motions were pending, on July 1, 2022, the Plaintiff's counsel filed a "Notice of Acceptance of Defendant Insomnia Cookies, LLC's Offer of Judgment," stating that the Plaintiff accepts and provides notice that she has accepted Insomnia's Offer of Judgment dated June 17, 2022. Attached to the notice was a copy of Insomnia's offer of judgment, and a proposed judgment, which apparently had been drafted by the Plaintiff's attorney. On July 11, the Clerk entered judgment ("filed judgment"), which in all relevant respects is identical to the proposed judgment submitted by the Plaintiff. On July 13, the Defendants filed a motion to vacate the judgment. The gist of the motion is that the judgment submitted by the Plaintiff and filed by the Clerk is materially different from the offer of judgment tendered by the Defendants to the Plaintiff. In particular, they contend that the offer of judgment made clear that the intent was to settle all of the Plaintiff's claims (other than for attorney's fees) against all of the Defendants, but the filed judgment on its face only dismisses the Plaintiff's claims against Insomnia, not against the other two Defendants. With their motion, the Defendants have submitted a proposed amended judgment, which they contend accurately reflects the terms of their previous offer of judgment. In addition, after the judgment was entered, the Plaintiff moved for an award of attorney's fees. The Defendants have filed a response, in which they contend that the motion is inconsistent with the terms of the offer of judgment, and that the amount requested is excessive. Judge Larimer holds that was unnecessary for the Plaintiff to have filed a proposed judgment in the first place. The offer of judgment, once accepted and filed with the notice of acceptance, itself determines the terms of the judgment. Accordingly, Judge Larimer will enter a separate judgment, setting forth the relevant terms of Insomnia's offer of judgment. Since that offer contains some language that is not necessary or germane to the judgment (e.g., dealing with the expiration of the offer if it is not timely accepted), the judgment will not repeat verbatim the entire text of the offer, but in the event of any future disputes between the parties concerning the judgment, the terms of the offer will control, subject to ordinary principles of contract construction. The offer of judgment also provides that in addition to the $12,000 judgment against Insomnia, the "Defendants will separately pay reasonable attorneys' fees and costs, the amount of which will be determined by the Court unless the parties otherwise agree on a fee award." Although both the filed judgment and the Defendants' proposed amended judgment set forth deadlines for the Plaintiff to file a motion for fees and for the Defendants to respond, such language (which is not contained in the offer of judgment) is unnecessary, since the Plaintiff has already filed a motion for attorney's fees, to which the Defendants have responded. Inasmuch as there has been further litigation in the case subsequent to the filing of the fee motion, however, Judge Larimer will allow the Plaintiff to supplement her fee motion, and allow the Defendants to respond, as set forth in the Conclusion to his Decision and Order. Once the parties' submissions have been filed, he will issue a separate Decision and Order on the attorney's fee motion. For these reasons, Judge Larimer grants the Defendants' motion to vacate judgment and enter an amended judgment. The judgment entered on July 11, 2022, is vacated. The Court will enter an amended judgment in conformity with this Decision and Order. The Plaintiff will have 20 days to file a supplement, not to exceed 10 pages total, to her motion for attorney's fees and costs. The Defendants will have 20 days to file a response, also not exceeding 10 pages. A full-text copy of the Court's Oct. 4, 2022 Decision & Order is available at https://tinyurl.com/25phd9kx from Leagle.com. JERK TACO: Fails to Pay Proper Minimum Wages, Carpenter Alleges --------------------------------------------------------------- DIAMOND CARPENTER, on behalf of herself and on behalf of all similarly situated employees, Plaintiff v. JERK TACO MAN HOLDINGS, LLC (ILLINOIS LLC) and JULIUS B. THOMAS (INDIVIDUALLY), Defendant, Case No. 1:22-cv-05424 (N.D. Ill., Oct. 4, 2022) arises from the Defendant's failure to pay minimum wage for all hours worked to Plaintiff and other similarly situated persons, in violation of the Fair Labor Standards Act. The Plaintiff was employed by the Defendants as a non-exempt employee on February 26, 2022. She performed a specific job which is an integral part of the business of Jerk Taco. The Plaintiff asserts that on May 11, 2022, she was forced to resign because of Defendants' failure to pay her her rate of pay for all hours worked for the duration of her employment. Jerk Taco Man Holdings, LLC (Illinois LLC) is a Jamaican restaurant based in Chicago, Illinois.[BN] The Plaintiff is represented by: Nathan C. Volheim, Esq. SULAIMAN LAW GROUP LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: (630) 568-3056 Facsimile: (630) 575-8188 E-mail: nvolheim@sulaimanlaw.com - and - Chad W. Eisenback, Esq. SULAIMAN LAW GROUP LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: (331) 331-7632 Facsimile: (630) 575-8188 E-mail: ceisenback@sulaimanlaw.com JUST ENERGY GROUP: Faces Securities Suits in US, Canadian Courts ---------------------------------------------------------------- Just Energy Group Inc. disclosed in its Form 10-Q Report the three months ended June 30, 2022, filed with the Securities and Exchange Commission on August 26, 2022, that putative class action lawsuits were filed in the United States District Court for the Southern District of New York, in the United States District Court for the Southern District of Texas, and in the Ontario Court, on behalf of investors that purchased Just Energy Group Inc. securities during various periods, ranging from November 9, 2017, through August 19, 2019. The U.S. lawsuits have been consolidated in the United States District Court for the Southern District of Texas with one lead plaintiff and the Ontario lawsuits have been consolidated with one lead plaintiff. The U.S. lawsuit seeks damages allegedly arising from violations of the United States Securities Exchange Act. The Ontario lawsuit seeks damages allegedly arising from violations of Canadian securities legislation and common law. The Ontario lawsuit was subsequently amended to, among other things, extend the period to July 7, 2020. On September 2, 2020, pursuant to Just Energy's plan of arrangement, the Superior Court of Justice (Ontario) ordered that all existing equity class action claimants shall be irrevocably and forever limited solely to recovery from the proceeds of the insurance policies payable on behalf of Just Energy or its directors and officers in respect of any such existing equity class action claims, and such existing equity class action claimants shall have no right to, and shall not, directly or indirectly, make any claim or seek any recoveries from any of the released parties or any of their respective current or former officers and directors in respect of any existing equity class action claims, other than enforcing their rights to be paid by the applicable insurer(s) from the proceeds of the applicable insurance policies. Pursuant to the CCAA proceedings, these proceedings have been stayed. Just Energy is a retail energy provider specializing in electricity and natural gas commodities, energy-efficient solutions, carbon offsets, and renewable energy options based in Ontario. KAYDAN LOGISTICS: Sheets Labor Suit Removed to C.D. California -------------------------------------------------------------- The case styled JOSHUA SHEETS, individually, on a representative basis, and on behalf of all others similarly situated; Plaintiff v. KAYDAN LOGISTICS LLC, a California limited liability company; KIRK MORRISON; CARLENE MORRISON; and DOES 3 through 20, inclusive Defendants, Case No. CVRI2200610, was removed from the Superior Court of the State of California for the County of Riverside to the U.S. District Court for the Central District of California on Oct. 4, 2022. The Clerk of Court for the Central District of California assigned Case No. 5:22-cv-01744 to the proceeding. The complaint asserts the following claims on a class-wide basis under the California Labor Code: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide meal periods; (4) failure to provide rest periods; (5) failure to timely pay final wages; (6) failure to provide accurate itemized wage statements; (7) unfair and unlawful competition; and (8) violations under Private Attorneys General Act of 2004. Kaydan Logistics LLC is a freight shipping trucking company.[BN] The Defendants are represented by: Tim L. Johnson, Esq. Nikolas T. Djordjevski, Esq. Yousaf M. Jafri, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4660 La Jolla Village Drive, Suite 900 San Diego, CA 92122 Telephone: (858) 652-3100 Facsimile: (858) 652-3101 E-mail: tim.johnson@ogletree.com nikolas.djordjevski@ogletree.com yousaf.jafri@ogletree.com KDM ANCHOR: Smith Sues Over Unpaid Minimum Wages and Tips --------------------------------------------------------- Sophia Smith, individually and on behalf of all those similarly situated v. KDM ANCHOR, INC. d/b/a ANCHOR, Case No. 3:22-cv-00565 (W.D. Wis., Oct. 5, 2022), is brought against the Defendants for unpaid minimum wages and tips under the Fair Labor Standards Act. During her employment, the Plaintiff was paid the lower tipped minimum wage but was subject to an unlawful tip pool and was therefore denied payment of the full minimum wage. Under this policy, the Plaintiff and other similarly situated employees, the servers at Anchor bar and restaurant, were paid an hourly wage less than the minimum wage of $7.25 per hour. The Defendant took the tip credit, and the Plaintiff and the other servers were expected to make up the difference between the tipped and full minimum wage with their tips. However, the Plaintiff and the other servers were also required to pay into a tip pool disbursed to the Defendant's support, kitchen, and bar staff, and to the Defendant itself. Because of this invalid tip pool arrangement, the Defendant could not claim the tip credit. Plaintiff and the putative class and collective class members are similarly situated, as they commonly suffered wage losses as a result of the Defendant's illegal pay policy. The Plaintiff individually brings this action for retaliation. Upon recognizing Defendant's unlawful pay policy, the Plaintiff stated she would contact the State of Wisconsin to investigate. In retaliation, the Defendant terminated the Plaintiff's employment. The Plaintiff suffered wage losses as a result of the Defendant's illegal retaliation, says the complaint. The Plaintiff was a server for KDM Anchor, Inc.'s Anchor bar and restaurant in Edgerton, Wisconsin. The Defendant owns and operates Anchor, a restaurant and bar in Edgerton, Wisconsin.[BN] The Plaintiff is represented by: David C. Zoeller, Esq. Natalie L. Gerloff, Esq. HAWKS QUINDEL, S.C. Post Office Box 2155 Madison, WI 53701-2155 Phone: (608) 257-0040 Facsimile: (608) 256-0236 Email: dzoeller@hq-law.com ngerloff@hq-law.com KIA AMERICA INC: Walker Files FLSA Suit in W.D. Arkansas -------------------------------------------------------- A class action lawsuit has been filed against Kia America, Inc., et al. The case is styled as Tempest Walker, individually and on behalf of all others similarly situated v. Kia America, Inc., Hyundai Motor America, Inc., Case No. 2:22-cv-02678-MSN-atc (W.D. Ark., Oct. 4, 2022). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Kia America, Inc. -- http://www.kiamedia.com/-- provides a wide range of cars that meet your lifestyle. Browse our luxury or sports sedans, hybrids, electric cars, SUVs & hatchbacks.[BN] The Plaintiffs are represented by: Greg Frederic Coleman, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Phone: (865) 247-0080 Fax: (865) 522-0049 Email: gcoleman@milberg.com KIA AMERICA: Sampson Sues Over Defective Vehicle's Smart Key ------------------------------------------------------------ Eugenia Sampson, Michael Sanders, Sherry Kelley, Jazmin Harris, and Lilianna Bineau, individually and on behalf of all others situated v. KIA AMERICA, INC., a California corporation, AND HYUNDAI MOTOR AMERICA, a California corporation, Case No. 8:22-cv-01815 (C.D. Cal., Oct. 5, 2022), is brought on behalf of all persons nationwide who purchased or leased Kia vehicles made between 2011 and 2022 or Hyundai vehicles made between 2015 and 2022 equipped with traditional "insert-and-turn" steel key ignition systems ("Covered Vehicles"), which are not equipped with "immobilizer" technology, which prevents them from starting without a code sent electronically to the Vehicle from the Vehicle's smart key (the "Defect"). The Defendants market and advertise the Covered Vehicles, oversee Hyundai and Kia dealers, and develop the companies' nationwide marketing and informational materials. The Defendants were aware or should have been aware of the Defect from multiple sources. Police reports indicate that the Defect has been used to steal Kia vehicles since 2011 and Hyundai vehicles since 2015. The Defendants, however, neglected to disclose this to consumers and actively concealed the Defect. Not until November 1, 2021, did the Defendant Hyundai make immobilizer technology in vehicles standard. The Defendant Kia did not make this change until 2022. Despite the widespread increase in stolen Covered Vehicles, the Defendants have not announced a recall of the Covered Vehicles. The Defendants have stated they will provide steering locks to law enforcement in affected areas, and the Defendant Hyundai will begin selling a security kit for affected owners or lessees in October 2022. In deciding to purchase their 2020 Hyundai Elantra on July 18, 2022 (Plaintiff Sampson), 2021 Kia Sorento in June 2021 (Plaintiff Sanders), 2019 Hyundai Elantra (Plaintiff Kelley), 2020 Kia Sportage (Plaintiff Harris), 2016 Hyundai Sonata (Plaintiff Bineau), the Plaintiffs believed and relied on the Defendants' deceptive representations of the fitness of the vehicle, and ultimately purchased the vehicle due to its low cost while having features, such as air conditioning, low mileage, navigation system, and radio. The Plaintiffs would not have purchased the Covered Vehicle had they known how easy it was to steal, or that the Vehicle was lacking a car immobilizer system. The Plaintiffs and the Class have suffered diminished market value of their Covered Vehicles, and even total loss of market value, as a direct result of Defendants' withholding material information and/or actively concealing the Defect. The Plaintiffs brings this class action against Hyundai and Kia for violations of numerous consumer protection and warranty laws, individually and on behalf of all persons nationwide who purchased or leased a Covered Vehicle, says the complaint. The Plaintiffs purchased vehicle from the Defendants. The Defendants Kia and Hyundai are manufacturers and distributors of new motor vehicles.[BN] The Plaintiff is represented by: Robert C Schubert, Esq. Dustin L Schubert, Esq. Amber L Schubert, Esq. SCHUBERT JONCKHEER & KOLBE LLP Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 Phone: (415) 788-4220 Facsimile: (415) 788-0161 Email: rschubert@sjk.law dschubert@sjk.law aschubert@sjk.law KIRKLAND'S INC: Faces Gennock Securities Suit --------------------------------------------- Kirkland's, Inc. disclosed in its Form 10-Q Report for the current report dated July 30, 2022, filed with the Securities and Exchange Commission on August 30, 2022, that the company was named as a defendant in a putative class action filed in April 2017 in the United States District Court for the Western District of Pennsylvania captioned "Gennock v. Kirkland's, Inc." The complaint alleged that the company, in violation of federal law, published more than the last five digits of a credit or debit card number on customers' receipts and sought statutory and punitive damages and attorneys' fees and costs. On October 21, 2019, the District Court dismissed the matter and ruled that the Plaintiffs did not have standing based on the Third Circuit's recent decision in "Kamal v. J. Crew Group, Inc.," 918 F.3d 102 (3d. Cir. 2019). Following the dismissal in federal court, on October 25, 2019, the plaintiffs filed a Praecipe to Transfer the case to Pennsylvania state court, and on August 20, 2020, the court ruled that the plaintiffs have standing. The company appealed that ruling, and on April 27, 2022, the Superior Court of Pennsylvania granted the company's petition for permission to appeal. On August 4, 2022, the company filed its Appellate Brief with the Superior Court of Pennsylvania. Kirkland's, Inc. is a retailer of home furnishings based in Tennessee. KIROMIC BIOPHARMA: Podmore Sues Over Decline in Stock Market Value ------------------------------------------------------------------ Joseph Podmore, individually and on behalf of all others similarly situated v. KIROMIC BIOPHARMA, INC., MAURIZIO CHIRIVA-INTERNATI, TONY TONTAT, GIANLUCA ROTINO, PIETRO BERSANI, AMERICO CICCHETTI, MICHAEL NAGEL, JERRY SCHNEIDER AND THINKEQUITY LLC, Case No. 1:22-cv-08433 (S.D.N.Y., Oct. 3, 2022), is brought on behalf of a class consisting of all persons and entities (other than the Defendants) that purchased or otherwise acquired: Kiromic common stock pursuant and/or traceable to the Offering Documents and/or Kiromic common stock between June 25, 2021 and February 2, 2022, both dates inclusive (the "Class Period"), seeking to recover damages caused by the Defendants' violations of the federal securities laws, the Securities Act of 1933, and the Securities Exchange Act of 1934, resulting decline in the market value of the Company's stock. The company develops ALEXIS-ISO-1, an allogenic gamma delta CAR-T cell therapy product candidate targeting Isomesothelin; and ALEXIS-PRO-1, an allogeneic gamma delta chimeric T cell therapy product candidate targeting PD-L1. The Company's public offering closed on July 2, 2021 (the "Offering") and was conducted pursuant to a registration statement filed with the SEC on June 25, 2021 ("Registration Statement") and a final prospectus dated June 29, 2021 (the "Prospectus," with the Registration Statement, the "Offering Documents"). Offering, the Company presented itself as a target discovery and gene-editing company which utilized artificial intelligence to create immunotherapy products. While the Company had no immunotherapy products on the market at the time, it had applications to begin human clinical trials for two new drug candidates, known as Investigational New Drug ("IND") applications, pending with the Food and Drug Administration ("FDA"). The Offering Documents stated that the Company could commence clinical trials within 30 days of those IND applications unless the FDA imposed a clinical hold. In the Offering Documents and during the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations and internal controls. Specifically, Defendants made false and misleading statements and/or failed to disclose that the FDA had, prior to the filing of the Registration Statement and Prospectus, imposed a clinical hold, and in fact, contained statements indicating that it had not. Given that the Offering closed on July 2, 2021, more than 30 days after the Company submitted the IND applications for its two immunotherapy product candidates, investors were assured that no clinical hold had been issued and clinical trials would commence. In truth, the Company, however, had received communications from the FDA on June 16 and 17, 2021, informing it that the FDA was placing the IND applications for its two candidate products on clinical hold. The Offering Documents failed to disclose this information, instead representing that clinical testing was expected to proceed in the third quarter of 2021. Clinical testing did not proceed in the third quarter of 2021, nor was it likely given the FDA's imposition of a clinical hold. On July 16, 2021, two weeks after the closing of the Offering, the Company announced through a press release that it had received "comments" from the FDA regarding the ALEXIS products including "tracing of all reagents used in manufacturing," "flow chart of manufacturing processes," and "Certificate of Analysis" (COA) for the Company's CAR-T products (allogeneic CAR-T). On this news, Kiromic's stock price fell $0.91, or more than 23%, from an opening share price of $3.83 per share on July 16, 2021 to a closing share price of $2.92 per share on July 19, 2021. Then, on August 13, 2021, the Company issued a press release, clarifying that the FDA had actually put the INDs on "clinical hold." On this news, Kiromic's stock price fell $0.21, or more than 6%, from a closing share price of $3.16 per share on August 12, 2021 to a closing share price of $2.95 per share on August 16, 2021. On February 2, 2022, Kiromic essentially admitted that it had not been forthcoming with investors concerning the status of the INDs. Specifically, the Company revealed that it commenced an internal investigation based on complaints lodged by its former CFO, Defendant Tony Tontat. The internal investigation uncovered that the FDA had first informed the Company of the clinical hold on June 16 and June 17, 2021 - material facts not disclosed in Kiromic's July 2021 public offering documents. Kiromic admitted that this material omission could subject the Company to liability under the securities laws. The Company also revealed that the Board had terminated Defendant Maurizio Chiriva-Internati as Chief Executive Officer for cause on January 27, 2022, after the Special Committee's Internal Review found evidence of conduct that the Board believed was inconsistent with the Company's policies. On this news, Kiromic's stock price fell $0.21, or more than 19%, from a closing share price of $1.08 per share on February 1, 2022 to a closing share price of $0.87 per share on February 3, 2022. As a result of these untrue and misleading statements and omissions, and the resulting decline in the market value of the Company's stock, the Plaintiff and the putative class have suffered significant losses, says the complaint. The Plaintiff purchased Kiromic shares pursuant or traceable to the Offering. Kiromic is a target discovery and gene editing company, focused on developing immuno-oncology therapeutics for the treatment of blood cancers and solid tumors.[BN] The Plaintiff is represented by: Nathaniel Tarnor, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 322 8th Ave., Suite 802 New York, NY 10001 Phone: (212) 752-5455 Facsimile: (917) 210-3980 Email: nathant@hbsslaw.com - and - Lucas E. Gilmore, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Phone: (510) 725-3000 Facsimile: (510) 725-3001 Email: lucasg@hbsslaw.com KONING & ASSOCIATES: Willis Suit Seeks to Certify Class Action -------------------------------------------------------------- In the class action lawsuit captioned as TROY WILLIS, individually, and on behalf of others similarly aggrieved, v. KONING & ASSOCIATES, a California corporation; CHRIS KONING, an individual; and DOES 1 through 50, inclusive, Case No. 5:21-cv-00819-BLF (N.D. Cal.), the Plaintiff asks the Court to enter an order: 1. Certifying case as a class action pursuant to Federal Rules of Civil Procedure, Rules 23(a) and 23(b)(3); "All current and former insurance adjusters employed by Koning & Associates13 from December 15, 2017 through the date of the order granting class certification;" 2. Appointing him as a representative for the proposed Class; and 3. Appointing Matthew J. Matern, Joshua D. Boxer, and Corey B. Bennett, of Matern Law Group, PC, as Class Counsel for the proposed Class. Koning & Associates is a regional adjusting company serving the insurance industry for more 33 years. A copy of the Plaintiff's motion to certify class dated Sept. 30, 2022 is available from PacerMonitor.com at https://bit.ly/3rFfwEU at no extra charge.[CC] The Plaintiff is represented by: Matthew J. Matern, Esq. Joshua D. Boxer, Esq. Corey B. Bennett, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 Facsimile: (310) 531-1901 KW NY CONSTRUCTION: Quito Sues Over Unpaid Overtime Wages --------------------------------------------------------- Segundo Tacuri Quito and Luis Alberto Tacuri Quito, individually and on behalf of all others similarly situated v. KW NY CONSTRUCTION INC. and CHAUDHRY PERVEZ, as an individual, Case No. 7:22-cv-08417 (S.D.N.Y., Oct. 3, 2022), is brought to recover damages for the Defendants' egregious violations of state the Federal and New York State labor laws, and federal wage and hour laws arising out of the Defendants failure to pay the Plaintiffs overtime wages. Although Plaintiffs regularly worked approximately 54 hours, the Defendants did not pay the Plaintiffs at a wage rate of time and a half for his hours regularly worked over 40 hours in a work week, a blatant violation of the overtime provisions contained in the FLSA and NYLL, says the complaint. The Plaintiffs were employed by the Defendants. KW NY CONSTRUCTION INC., is a New York domestic business corporation, organized under the laws of the State of 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 LAKESIDE PIZZA: Baker Suit Seeks Proper Expense Reimbursements -------------------------------------------------------------- STEVE BAKER, individually and on behalf of similarly situated persons, Plaintiff v. LAKESIDE PIZZA, INC., and ROBERT MCNICHOLAS, Defendants, Case No. 1:22-cv-01767 (N.D. Ohio, Oct. 4, 2022) is a collective action under the Fair Labor Standards to recover unpaid minimum wages and overtime hours owed to Plaintiff and similarly situated delivery drivers employed by Defendants at its Domino's stores. According to the complaint, the Defendants employ delivery drivers who use their own automobiles to deliver pizza and other food items to their customers. However, instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, Defendants use a flawed method to determine reimbursement rates that provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the federal minimum wage during some or all workweeks. The Plaintiff was employed by the Defendants from approximately September 2017 to May 2021 as a delivery driver at Defendants' Domino's store located in Madison, Ohio. Lakeside Pizza, Inc. operates numerous Domino's Pizza franchise stores.[BN] The Plaintiff is represented by: Matthew R. McCarley, Esq. FORESTER HAYNIE, PLLC 400 N. St. Paul Street Suite 700 Dallas, TX 75201 Telephone: (214) 210-2100 Facsimile: (469) 399-1070 E-mail: mccarley@foresterhaynie.com LAMBS & IVY: Loadholt Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Lambs & Ivy, Inc. The case is styled as Christopher Loadholt, on behalf of himself and all others similarly situated v. Lambs & Ivy, Inc., Case No. 1:22-cv-08382 (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Lambs & Ivy, Inc. -- https://lambsivy.com/ -- manufactures and retails baby products. The Company produces crib bedding sets, sheets, bumpers, blankets, nap mats, nursery quilts and lamps, wall decals and decor, storage baskets, hampers, changing pad covers, window valances, plush stuffed animals, and hooded towels.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com LANDRY'S INC: Toro Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Landry's, Inc. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Landry's, Inc., Case No. 1:22-cv-08322-PAE (S.D.N.Y., Sept. 29, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Landry's, Inc. -- https://www.landrysinc.com/ -- is an American, privately owned, multi-brand dining, hospitality, entertainment and gaming corporation headquartered in Houston, Texas.[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 LAUER ENTERPRISES: Toro Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Lauer Enterprises, Inc. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Lauer Enterprises, Inc., Case No. 1:22-cv-08323 (S.D.N.Y., Sept. 29, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Lauer Enterprises, Inc. has been an innovative retail and design company since 1995.[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 LEARN & PLAY: Campbell Sues Over Daycare Workers' Unpaid Wages -------------------------------------------------------------- JASMINE CAMPBELL, on behalf of herself and others similarly situated, Plaintiff v. LEARN & PLAY CENTER INC. d/b/a LEARN & PLAY CENTER and BRIGHT START HOME LEARNING CENTER, YVONNE CONDE, and JACQUELINE CONDE, Defendants, Case No. 2:22-cv-05947-GRB-JMW (E.D.N.Y., Oct. 4, 2022) arises from the Defendants' alleged violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff brings this action on behalf of herself and similarly situated workers who elect to opt in to this action pursuant to the federal and state laws and specifically, the collective action provision of 29 U.S.C. Section 216(b), seeking from Defendants unpaid overtime wages, unpaid minimum wages, statutory penalties, liquidated damages for unpaid wages, liquidated damages for late payment of wages, and attorneys' fees and costs. The Plaintiff was hired by the Defendants to work as a daycare worker at Defendants' daycare facilities in Oceanside, New York from July 2015 until June 21, 2021. Learn & Play Center Inc. is a school-age child care based in New York.[BN] The Plaintiff is represented by: Clara Lam, Esq. BROWN KWON & LAM, LLP 521 Fifth Avenue, 17th Floor New York, NY 10175 Telephone: (212) 295-5828 Facsimile: (718) 795-1642 E-mail: clam@bkllawyers.com LIBERTY MUTUAL: Wright Sues Over Unpaid Overtime Hours Worked ------------------------------------------------------------- Bryan Wright and Alana Fadely, individually, and on behalf of all others similarly situated v. LIBERTY MUTUAL GROUP, INC., Case No. 1:22-cv-11687 (D. Mass., Oct. 4, 2022), is brought arising out of the Defendant's systemic failure to compensate its employees for all hours worked, including overtime hours worked at the appropriate overtime rate, in violation of the Fair Labor Standards Act. The Plaintiffs routinely worked 40 hours or more per week before accounting for their off-the-clock work. When the off-the-clock work is included, the Plaintiffs, even those Agents who were scheduled and paid for only 40 hours per week, actually worked over 40 hours per week without the required overtime premium for hours worked over 40 per week. The Defendant, through its managers, had actual and constructive knowledge that the Plaintiffs were completing this off-the-clock work without compensation. Nevertheless, the Defendant suffered or permitted, and in fact trained and required, the Plaintiffs to complete this unpaid work. The Defendant's practice of failing to compensate the Plaintiffs for all hours worked, and failing to compensate the Plaintiffs at the appropriate overtime rate, violated the Plaintiffs' rights under the FLSA, says the complaint. The Plaintiffs worked for the Defendant as hourly call center agents. The Defendant is a global insurer offering auto & vehicle, property, casualty, commercial auto, and risk insurance to 29 countries and economies around the world.[BN] The Plaintiff is represented by: Benjamin Knox Steffans, Esq. STEFFANS LEGAL PLLC 10 Wendell Ave. Ext. Suite 208 Pittsfield, MA 01201 Phone: (413) 418-4176 Email: bsteffans@steffanslegal.com - and - Jason J. Thompson, Esq. Jesse L. Young, Esq. Albert J. Asciutto, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, MI 48076 Phone: (248) 355-0300 Email: jthompson@sommerspc.com jyoung@sommerspc.com aasciutto@sommerspc.com LINCARE HOLDINGS: Kennedy Suit Transferred to M.D. Florida ---------------------------------------------------------- The case styled as Charlene Kennedy, individually and on behalf of all others similarly situated v. Lincare Holdings Inc., Case No. 4:22-cv-03974 was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Middle District of Florida on Oct. 4, 2022. The District Court Clerk assigned Case No. 8:22-cv-02275-CEH-SPF to the proceeding. The nature of suit is stated as Other P.I. for Non-Motor Vehicle. Lincare Holdings Inc. -- https://www.lincare.com/ -- is a provider of oxygen and other respiratory therapy services to patients in the home.[BN] The Plaintiff is represented by: Scott Edward Cole, Esq. Cody Alexander Bolce, Esq. Laura Grace Van Note, Esq. COLE & VAN NOTE 555 12th St., Ste. 1725 Oakland, CA 94607 Phone: (510) 891-9800 Fax: (510) 891-7030 Email: sec@colevannote.com cab@colevannote.com lvn@colevannote.com - and - Alyssa Michelle Engstrom, Esq. Noel Scott Cohen, Esq. Wesley Douglas Hurst, Esq. POLSINELLI LLP 2049 Century Park East Ste 2900 Los Angeles, CA 90067 Phone: (310) 556-1801 Email: aengstrom@polsinelli.com ncohen@polsinelli.com whurst@polsinelli.com LINCARE INC: Fails to Pay Timely Wages, Bethea Suit Alleges ----------------------------------------------------------- JEROME BETHEA, individually and on behalf of others similarly situated, Plaintiffs v. LINCARE INC. and VIDHWAN, INC., Defendants, Case No. 2:22-cv-05936 (E.D.N.Y., Oct. 4, 2022) is brought pursuant to New York Labor Law to recover damages for delinquent wage payments made to workers who qualify as manual laborers and who were employed by Defendants between February 18, 20161 and the present in the state of New York. Mr. Bethea was employed by the Defendants from approximately December 2021 until April 2022 in the Defendants' Farmingdale location with primary job responsibilities being the physical delivery and collection of oxygen tanks, as well as loading and unloading Defendants' truck that he utilized daily. He asserts that he was compensated only twice per month by Defendants throughout the entirety of his employment, and in so doing was time and again injured by Defendants' failure to pay him timely wages, in as much as Defendants' conduct routinely deprived him on a temporary basis of monies due to him. Lincare Inc. is a provider of oxygen and other respiratory therapy services to patients in the home, with headquarters and principal place of business located in Clearwater, Florida.[BN] The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 LINDENWOOD INC: Toro Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Lindenwood, Inc. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. Lindenwood, Inc., Case No. 1:22-cv-08357-JPO (S.D.N.Y., Sept. 30, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Lindenwood -- https://www.lindenwood.edu/ -- is a dynamic four-year liberal arts institution dedicated to excellence in higher education that is located in St. Charles, Missouri.[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 LOBSTER PLACE INC: Dawkins Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against The Lobster Place, Inc. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. The Lobster Place, Inc., Case No. 1:22-cv-05910 (E.D.N.Y., Oct. 3, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Lobster Place -- https://www.lobsterplace.com/ -- is a seafood restaurant and has provided NYC with the best lobster and seafood for more than 4 decades.[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 LOGITECH INC: Licea Files Suit in S.D. California ------------------------------------------------- A class action lawsuit has been filed against Logitech Inc., et al. The case is styled as Jose Licea, individually and on behalf of all others similarly situated v. Logitech Inc., Does 1 through 25, Case No. 3:22-cv-01490-BEN-MDD (S.D. Cal., Oct. 2, 2022). The nature of suit is stated as Other P.I. Logitech -- https://www.logitech.com/ -- is a Swiss-American multinational manufacturer of computer peripherals and software, with headquarters in Lausanne, Switzerland and Newark, California.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS APC 4100 Newport Place Drive Suite 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com LULUS FASHION: Reilly Files Suit in Fla. Super. Ct. --------------------------------------------------- A class action lawsuit has been filed against Lulus Fashion Lounge LLC. The case is styled as Erin Reilly, individually and on behalf of all others similarly situated v. Lulus Fashion Lounge LLC, Case No. 2022-11511-CIDL (Fla. Super. Ct., Volusia Cty., Sept. 19, 2022). The case type is stated as "Antitrust/Trade Regulations." Lulus -- https://www.lulus.com/ -- is a customer driven, digitally native fashion brand for women.[BN] The Plaintiff is represented by: Benjamin W. Raslavich, Esq. KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Phone: (813) 422–7782 Facsimile: (813) 422–7783 Email: ben@theKRfirm.com MADAVOR MEDIA: Kasul Files Suit in W.D. Michigan ------------------------------------------------ A class action lawsuit has been filed against Madavor Media, LLC. The case is styled as Kelley Kasul, individually and on behalf of all others similarly situated v. Madavor Media, LLC, Case No. 1:22-cv-00914 (W.D. Mich., Oct. 4, 2022). The nature of suit is stated as Other P.I. Madavor -- https://www.madavor.com/ -- is a world-class media company that produces content across multiple platforms for a diverse audience of passionate enthusiasts and those seeking to take charge of their well-being.[BN] The Plaintiff is represented by: Gregory A. Mitchell, Esq. Sharon S. Almonrode, Esq. THE MILLER LAW FIRM PC 950 W University Dr., Ste. 300 Rochester, MI 48307 Phone: (248) 841-2200 Email: gam@millerlawpc.com ssa@millerlawpc.com - and - Joseph I. Marchese, Esq. Philip L. Fraietta, Esq. BURSON & FISHER, P.A. (NY) 888 Seventh Ave. New York, NY 10019 Phone: (646) 837-7150 Email: jmarchese@bursor.com pfraietta@bursor.com MADISON REED: Brown Appeals False Ad Suit Dismissal to 9th Cir. --------------------------------------------------------------- MOLLY BROWN, et al. are taking an appeal from a court order granting the Defendant's motion to dismiss their Second Amended Complaint (SAC) in the lawsuit entitled Molly Brown, et al., individually and on behalf of others similarly situated, Plaintiffs, v. Madison Reed, Inc., Defendant, Case No. 3:21-cv-01233-WHO, in the U.S. District Court for the Northern District of California. The Plaintiffs, Molly Brown and Keppie Moore, filed a class action suit against the Defendant for violations of California's Consumers Legal Remedies Act (CLRA), False Advertising Law (FAL), and Unfair Competition Law (UCL) by engaging in false, deceptive, and misleading advertising, labeling, and marketing of its radiant Hair Color Kits. On June 11, 2021, Madison Reed moved to compel Brown to arbitrate her claims, which Judge William H. Orrick denied with respect to Brown's public injunctive relief claim but granted with respect her remaining claims. He also granted Madison Reed's motion to dismiss the complaint as a whole for failure to state a claim. Brown and Moore then filed a First Amended Complaint (FAC), which Madison Reed again moved to dismiss. Judge Orrick granted that motion on Jan. 31, 2022, dismissing Moore's claims in their entirety without leave to amend, but granting Brown leave to amend hers. Brown and Audrey Sheffler filed the SAC on Feb. 21, 2022. On April 15, 2022, Sheffler voluntarily dismissed with prejudice her individual claims, but not her claims for public injunctive relief. Five days later, Madison Reed moved to dismiss the SAC. Judge Orrick heard arguments from both parties on July 13, 2022. On August 19, 2022, the Court granted the Defendant's motion to dismiss the Plaintiffs' SAC. Judge Orrick ruled that the Plaintiffs failed to sufficiently state claims under the CLRA, UCL, or FAL. The Court dismissed the claims with prejudice. The appellate case is captioned as Molly Brown, et al. v. Madison Reed, Inc., Case No. 22-16415, in the United States Court of Appeals for the Ninth Circuit, filed on September 16, 2022. The briefing schedule in the Appellate Case states that: -- Appellants Molly Brown, Keppie Moore and Audrey Sheffler Mediation Questionnaire was due on September 23, 2022; and -- Transcript is due on November 14, 2022; -- Appellants Molly Brown, Keppie Moore and Audrey Sheffler opening brief is due on December 27, 2022; -- Appellee Madison Reed, Inc. answering brief is due on January 23, 2023; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiffs-Appellants MOLLY BROWN, et al., individually and on behalf of all others similarly situated, are represented by: Carlos Ramirez, Esq. REESE, LLP 100 W. 93rd Street, 16th Floor New York, NY 10025 Telephone: (914) 860-4994 - and - George Granade, Esq. REESE LLP 8484 Wilshire Boulevard, Suite 515 Los Angeles, CA 90211 Telephone: (310) 393-0070 - and - Michael Reese, Esq. REESE, LLP 100 W. 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 594-5300 Defendant-Appellee MADISON REED, INC. is represented by: Amir Nassihi, Esq. Andrew Chang, Esq. Jason Richardson, Esq. SHOOK, HARDY & BACON, LLP 555 Mission Street, Suite 2300 San Francisco, CA 94105 Telephone: (415) 544-1900 MARINER WEALTH: Jackson Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Mariner Wealth Advisors, LLC. case is styled as Sylinia Jackson, on behalf of herself and all other persons similarly situated v. Mariner Wealth Advisors, LLC, Case No. 1:22-cv-08437 (S.D.N.Y., Oct. 3, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Mariner Wealth Advisors -- https://www.marinerwealthadvisors.com/ -- is a leading national wealth advisory firm.[BN] The Plaintiff is represented by: Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (917) 796-7437 Fax: (212) 982-6284 Email: danalgottlieb@aol.com MDL 2873: Baker Files Personal Injury Suit Over PFAs Exposure ------------------------------------------------------------- JONATHAN BAKER and other similarly situated v. 3M COMPANY fka MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.; KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100, INCLUSIVE; Case No. 2:22-cv-03431-RMG (D.S.C., Oct. 4, 2022) is a class action against the Defendants for negligence, strict liability, defective design, failure to warn, fraudulent concealment, medical monitoring trust, and violations of the Uniform Voidable Transactions Act. This suit deals with Aqueous Film Forming Foams ("AFFF") that were designed, manufactured and sold as firefighting compounds. AFFF compounding includes Perfluoro octane Sulfonate (commonly known as "PFOS"), PerfluorooctanoicAcid (commonly known as "PFOA"), and/or other Per-and Polyfluoroalkyl substances (together, with PFOS and PFOA, commonly known as "PFAS") which are manmade organofluorine compounds (in this case commonly referred to as fluorinated surfactants/fluorocarbon surfactants). The compounds are designed to lower the surface tension of water so as to create a firefighting foam to quell/smother (cutting off oxygen), for example, jet fuel fires. The Plaintiff was a dependent of John Baker, a member of the U.S. Marine Corps. At all times relevant, Plaintiff lived on Base at Camp Lejeune using and drinking the water. On information and belief, Cannon AFB has a PFAS environmental contamination level of 179,348 (EPA max of 70ppt). In or about 2018, Baker was diagnosed with kidney cancer and commenced on-going medical treatment inclusive of surgical intervention via a partial nephrectomy. As known by Defendants, kidney cancer is a disease linked to PFAS contamination, says the suit. The Baker case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: Jeremy C. Shafer, Esq. VETERAN LEGAL GROUP 700 12th Street N.W., Suite 700 Washington, D.C. 20005 Telephone: (888) 215-7834 E-mail: jshafer@bannerlegal.com - and - S. James Boumil, Esq. BOUMIL LAW OFFICES 120 Fairmount Street Lowell, MA, 01852 Telephone: (978) 458-0507 E-mail: sjboumil@boumil-law.com - and - Konstantine Kyros, Esq. KYROS LAW 17 Miles Rd. Hingham, MA 02043 Telephone: (800) 934-2921 E-mail: kon@kyroslaw.com MDL 2873: Berg Sues Over Injury From Exposure to Toxic PFAS ----------------------------------------------------------- STEVEN BERG and other similarly situated v. 3M COMPANY fka MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.; KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100, INCLUSIVE; Case No. 2:22-cv-03421-RMG (D.S.C., Oct. 4, 2022) is a class action against the Defendants for negligence, strict liability, defective design, failure to warn, fraudulent concealment, medical monitoring trust, and violations of the Uniform Voidable Transactions Act. This suit deals with Aqueous Film Forming Foams ("AFFF") that were designed, manufactured and sold as firefighting compounds. AFFF compounding includes Perfluoro octane Sulfonate (commonly known as "PFOS"), PerfluorooctanoicAcid (commonly known as "PFOA"), and/or other Per-and Polyfluoroalkyl substances (together, with PFOS and PFOA, commonly known as "PFAS") which are manmade organofluorine compounds (in this case commonly referred to as fluorinated surfactants/fluorocarbon surfactants). The compounds are designed to lower the surface tension of water so as to create a firefighting foam to quell/smother (cutting off oxygen), for example, jet fuel fires. The Plaintiff is a resident of Virginia, and formerly a resident of Norfolk, Virginia. Berg, at all times relevant hereto, was a member of the U.S. Navy, who during his service was stationed at Norfolk Virginia Naval Base, a military installation identified as being contaminated through use of the toxic chemicals which are the subject of this action. Plaintiff Berg suffers from kidney cancer, inclusive of undergoing surgical intervention (nephrectomy). It was discovered that Berg has elevated levels of the subject chemicals in his system, says the suit. The Berg case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul, Minnesota.[BN] The Plaintiff is represented by: Jeremy C. Shafer, Esq. VETERAN LEGAL GROUP 700 12th Street N.W., Suite 700 Washington, D.C. 20005 Telephone: (888) 215-7834 E-mail: jshafer@bannerlegal.com - and - S. James Boumil, Esq. BOUMIL LAW OFFICES 120 Fairmount Street Lowell, MA, 01852 Telephone: (978) 458-0507 E-mail: sjboumil@boumil-law.com - and - Konstantine Kyros, Esq. KYROS LAW 17 Miles Rd. Hingham, MA 02043 Telephone: (800) 934-2921 E-mail: kon@kyroslaw.com MERCEDES-BENZ USA: Faces Battery Replacement Class Action Lawsuit ----------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Mercedes-Benz battery replacement class action lawsuit alleges numerous models have defective electrical systems that drain the batteries which cause a circle of battery replacements. Those electrical defects have allegedly existed since at least 2004 and cause owners to buy replacement batteries which also allegedly drain. According to the Mercedes battery drain class action, the following models contain defects that cause battery failures. 2004-2022 Mercedes-Benz S-Class 2004-2022 Mercedes-Benz C-Class 2004-2022 Mercedes-Benz A-Class 2004-2022 Mercedes-Benz CLA-Class 2004-2022 Mercedes-Benz CLS-Class 2004-2022 Mercedes-Benz G-Class 2004-2022 Mercedes-Benz GLA-Class 2004-2022 Mercedes-Benz GLK-Class 2004-2022 Mercedes-Benz GLC-Class 2004-2022 Mercedes-Benz ML-Class 2004-2022 Mercedes-Benz GLE-Class 2004-2022 Mercedes-Benz GL-Class 2004-2022 Mercedes-Benz GLS-Class 2004-2022 Mercedes-Benz E-Class The Mercedes battery replacement lawsuit includes: "All persons who purchased or leased a Mercedes Vehicle containing the Battery Defect rendering them subject to any remedial- or counter-measure, including but not limited to the following TSBs:" LI54.15-P-070802 LI42.47-P-069817 LI54.10-P-066344 LI82.85-P-066086 LI82-95-P-056655 LI27.00-P-072627 LI54.10-P-064762 LI54.10-P-066942 LI54.10-P-071596 LI54.10-P-069698 New Jersey plaintiff Amir Crawford purchased a 2019 Mercedes-Benz CLS 450 Coupe in 2019. The plaintiff says the Mercedes battery has drained many times and replaced twice. The 12-volt battery drain leaves the vehicle without the ability to start and without electrical components. But the class action lawsuit alleges recent models with 48-volt batteries also suffer from battery drain. The plaintiff contends the 48V battery is supposed to help with fuel economy, but a drained 48-volt battery can allegedly cause the engine to overheat. The Mercedes battery drain class action focuses heavily on technical service bulletins issued by Mercedes to dealerships. The lawsuit alleges this indicates the automaker has long known about the battery drain problem. Mercedes Battery Replacement Technical Service Bulletins The class action references the following TSBs. -- TSB LI82.95-P-056655, issued July 12, 2013, and entitled "Battery drain bus keepawake detected - mbrace control unit causes bus keepawake." The bulletin says, "Customer experiences low battery conditions, resulting in jump starts, and eventually requiring battery replacement." It advises the "PASS (mbrace) is programmed to update its Preferred Roaming List (PRL) every 90 days," and in some cases "will start attempting to update, even though no network is detected," which will ultimately "keep the CAN Bus awake, and . . . drain the battery." -- TSB LI54.10-P-066344, issued October 27, 2017, and entitled "Vehicle Does Not Start,Battery Discharged." The TSB says the onboard electrical system can continue to operate when the engine is off, draining the battery, in which case the engine light will display the message "Interior CAN awake unusually long." -- TSB LI82.85-P-066086, issued March 13, 2017, and entitled, "Discharge Starter Battery Because Of Excessively High Quiescent Current." The TSB says, "the HERMES communication module (N112/9) may keep the CAN awake through the Bluetooth connection to the head unit," which "can discharge the starter battery" and result in the "[e]ngine start not [being] possible because battery voltage too low." -- TSB LI54.10-P-066942, issued May 10, 2018, and entitled "Discharged battery; vehicle does not start!! Model series 177 only!!" The bulletin requests to "create a PTSS case for all 177 vehicles found with a discharged battery and no start condition," and lists the cause of the failure as "under analysis." -- TSB LI54.10-P-071596, issued August 10, 2020, and entitled "Vehicle does not start / Vehicle cannot be unlocked - starter battery may be discharged." The TSB describes how a Mercedes vehicle cannot start or be unlocked, while displaying the message "Battery - Start Engine - see Operator's Manual." It describes an analysis showing event code U116000, detecting "a bus keepawake control unit . . . in the electronic ignition switch control unit." -- TSB LI54.10-P-064762, issued March 16, 2021, and entitled "Battery Discharged, Vehicle Does Not Start - Event Code U116000 A Bus Keepawake Event Has Been Detected Is Logged In The Quick Test." Mercedes said the "[b]attery discharged, vehicle does not start," while displaying "event code U116000 A bus keepawake event has been detected." This may be caused by the electronic ignition lock control unit crashing, the Keyless-Go control unit crashing, the or the electronic ignition lock unit causing a "bus keepawake event." -- TSB LI54.10-P-069698, issued April 21, 2021, and entitled, "Functional impairment of 48V on-board electrical system," and describes a "No start; Yellow or red instrument cluster message for 48 V on-board electrical system battery (G1/3); Limp home mode, overheating, A/C not blowing cold, or loss of acceleration." The Mercedes TSB says "[v]arious causes are possible." The battery drain class action lawsuit asserts the automaker fails to admit flaws in the electrical systems cause the batteries to drain. Customers are then forced to pay their own money for repairs and replacements. Mercedes-Benz has allegedly refused to properly repair the battery drain problem and won't compensate owners for expenses. Mercedes continues to sell the vehicles because the automaker allegedly conceals the battery and electrical system defects. The Mercedes battery replacement class action lawsuit was filed in the U.S. District Court for the District of New Jersey: Amir Crawford v. Mercedes-Benz USA, LLC, et al. The plaintiff is represented by Aylstock, Witkin, Kreis & Overholtz, PLLC. [GN] MERCEDES-BENZ USA: Khetan Files Suit in D. New Jersey ----------------------------------------------------- A class action lawsuit has been filed against Mercedes-Benz USA, LLC, et al. The case is styled as Krishnakant Khetan, individually and on behalf of all others similarly situated v. Mercedes-Benz USA, LLC, Mercedes-Benz Group AG formerly known as: DAIMLER AG, Case No. 3:22-cv-05877-MAS-RLS (D.N.J., Oct. 4, 2022). The nature of suit is stated as Motor Vehicle Product Liability. Mercedes-Benz USA, LLC -- https://www.mbusa.com/en/home -- is a Mercedes-Benz Group-owned distributor for passenger cars in the United States, headquartered in Sandy Springs, Georgia that sells cars from the Mercedes-Benz brand.[BN] The Plaintiff is represented by: Lawrence J. Friscia, Esq. FRISCIA & ASSOCIATES, LLC 45 Academy Street, Suite 401 Newark, NJ 07102 Phone: (973) 500-8024 Email: lawrence.friscia@friscialaw.com MESOBLAST LIMITED: Agreement in Principle Reached in Class Suit --------------------------------------------------------------- Mesoblast Limited disclosed in its Form 10-Q Report for the quarterly period ended July 31, 2022, filed with the Securities and Exchange Commission on August 31, 2022, that the final approval of the class action settlement was granted by the court with regards to a purported class action lawsuit was filed in the U.S. Federal District Court for the Southern District of New York on behalf of purchasers or acquirers of the American depositary shares (ADSs) against the company, its Chief Executive Officer, its former Chief Financial Officer, and its former Chief Medical Officer for alleged violations of the U.S. Securities Exchange Act of 1934. The parties have reached an agreement in principle to settle the securities class action on a class-wide basis for $2.0 million, with no admission of liability. This settlement was paid by the company's insurer in May 2022, other than the minimum excess as per the company's insurance policy. The settlement is subject to final documentation, notice to the class members, and approval of the court. The court granted preliminary approval of the settlement on April 8, 2022, and final approval on August 15, 2022. Mesoblast develops a range of late-stage product candidates derived from proprietary mesenchymal lineage cell therapy technology platforms in Australia. MK MARLOW: Gaona Suit Seeks to Recover Overtime Wages for Laborers ------------------------------------------------------------------ SOPHIE GAONA, individually and on behalf of all others similarly situated, Plaintiff v. MK MARLOW COMPANY, LLC and BROTHERS PEREZ CONSTRUCTION, LLC, Defendants, Case No. 2:22-cv-00227 (S.D. Texas, Oct. 5, 2022) seeks to recover overtime compensation, liquidated damages, and attorneys' fees and costs pursuant to the provisions of the Fair Labor Standards Act. According to the complaint, the Plaintiff and the Putative Collective Members are those similarly situated persons working for the Defendants who were misclassified as independent contractors and were paid a straight hourly wage for all hours worked, but did not receive overtime for all hours worked over 40 in each workweek. The Plaintiff worked exclusively for Defendants as a laborer in Corpus Christi, Texas from approximately June 2021 to March 2022. MK Marlow Company, LLC provides drywall and acoustical construction services in Central and South Texas.[BN] The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. Lauren E. Braddy, Esq. Carter T. Hastings, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com carter@a2xlaw.com MLCL GROUP: Alexander Sues Over Unpaid Wages, Illegal Tip Credit ---------------------------------------------------------------- DAMARIO ALEXANDER, individually, and on behalf of all others similarly situated, Plaintiffs v. MLCL GROUP LLC d/b/a PERSONA BAR & LOUNGE, an Illinois Limited Liability Company, REGINALD MARSH, individually, MARYANN MARSH, individually, and CHARLES MARTIN, individually, Defendants, Case No. 1:22-cv-05471 (N.D. Ill., Oct. 5, 2022) arises from the Defendants' failure to pay Plaintiff and class members required minimum and overtime wages for certain hours worked as well as Defendants' enforcement of illegal tip credit practices and tip notice policies in violation of the Fair Labor Standards Act and the Illinois Minimum Wage Act. The Plaintiff worked for the Defendants as a bartender/server from July 2021 until July 2022. MLCL Group LLC, d/b/a Persona Bar & Lounge, owns and operates Persona Bar & Lounge in Chicago, Illinois.[BN] The Plaintiff is represented by: Jordan Richards, Esq. USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC 1800 SE 10th Ave. Suite 205 Fort Lauderdale, FL 3330 MONTEREY FINANCIAL: Shelley Files TCPA Suit in S.D. California -------------------------------------------------------------- A class action lawsuit has been filed against Monterey Financial Services, LLC. The case is styled as Chasity R. Shelley, individually, and on behalf of all others similarly situated v. Monterey Financial Services, LLC, Case No. 3:22-cv-01507-RSH-KSC (S.D. Cal., Oct. 5, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act. Monterey Financial Services -- https://www.montereyfinancial.com/ -- is a full service receivables management and finance company that tailors to the specific needs of the business.[BN] The Plaintiff is represented by: Alexander James Adducci Taylor, Esq. SULAIMAN LAW GROUP LTD - LOMBARD IL 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (331) 307-7646 Fax: (630) 575-8188 Email: ataylor@sulaimanlaw.com MOUNTAIN WEST: Drange Appeals Class Cert. Bid Denial to 9th Cir. ---------------------------------------------------------------- JODIE DRANGE, et al. are taking an appeal from a court order granting the Defendants' motion to deny certification of class and denying the Plaintiffs' cross-motion for class certification in the lawsuit entitled Jodie Drange, et al., individually and on behalf of others similarly situated, Plaintiffs, v. Mountain West Farm Bureau Mutual Insurance Company, et al., Defendants, Case No. 1:20-cv-00030-SPW, in the U.S. District Court for the District of Montana. The Plaintiffs, individually and on behalf of all others similarly situated, bring this class action suit against the Defendants for breach of insurance contract and violation of Montana's Unfair Trade Practices Act (UTPA). In this lawsuit, the Plaintiffs seek to certify two classes: (a) Actual Cash Value (ACV) Class: All Mountain West Farm Bureau Mutual Insurance Company policyholders in Montana who (1) made a claim for structural damage to their real property from December 18, 2011 to the present and; (2) where Mountain West Farm Bureau Mutual Insurance made an ACV payment to policyholders but did not pay General Contractor Overhead and Profit (GCOP). This class also includes a subclass with Unfair Trade Practices Act claims that begins with claims made on or after December 18, 2017; and (b) Replacement Cost Value (RCV) Class: All Mountain West Farm Bureau Mutual Insurance Company policyholders in Montana who (1) made a claim for structural damage to their real property from December 18, 2011 to the present; (2) where Mountain West Farm Bureau Mutual Insurance accepted coverage; (3) where the policyholder completed repairs; and (4) Mountain West refused to pay GCOP with the policyholders' RCV payment. This class also includes a subclass with Unfair Trade Practices Act claims that begins with claims made on or after December 18, 2017. On February 26, 2022, the Defendants filed a motion to deny certification of class and argued that the Plaintiffs' proposed class definitions are imprecise because: (1) the classes include uninjured parties, (2) the classes do not include any evidence for a viable damages model, and (3) the UTPA claims associated with each class are completely undefined. The Plaintiffs responded that the class definitions are not overbroad because GCOP is a component of ACV claims, and the definitions specifically exclude insureds who were paid GCOP. The Plaintiffs further contend that the classes do not need a damages model because the damages are calculable to a sum certain and the alleged UTPA violations are straightforward to include all possible violations of the statute's subsections. On September 1, 2022, the Court granted the Defendants' motion to deny certification of class and denied the Plaintiffs' cross-motion for class certification through an Order entered by Judge Susan P. Watters. The Court determined that the Plaintiffs' proposed class definitions are overbroad and unascertainable by necessarily including policyholders with no concrete injury. The appellate case is captioned as Jodie Drange, et al. v. Mountain West Farm Bureau Mutual Insurance Company, et al., Case No. 22-80101, in the United States Court of Appeals for the Ninth Circuit, filed on September 16, 2022. [BN] Plaintiffs-Petitioners ANDY DRANGE, et al., individually and on behalf of all others similarly situated, are represented by: Martin Rogers, Esq. WORDEN THANE, PC 321 W. Broadway Street, Suite 300 Missoula, MT 59802 Telephone: (406) 721-3400 - and - Evan Selik, Esq. MCCATHERN LLP 523 W. 6th Street, Suite 830 Los Angeles, CA 90014 Telephone: (213) 225-6150 Defendants-Respondents MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY, et al., are represented by: Randall G. Nelson, Esq. NELSON LAW FIRM, P.C. 2619 St. Johns Ave. Billings, MT 59102 Telephone: (406) 867-7000 - and - Martha Sheehy, Esq. SHEEHY LAW FIRM P.O. Box 584 Billings, MT 59103 Telephone: (406) 252-2004 MW AUTO SALES: O'Neill Files Suit in Cal. Super. Ct. ---------------------------------------------------- A class action lawsuit has been filed against MW Auto Sales Inc., et al. The case is styled as Chelsea O'Neill, individually and on behalf of all others similarly situated v. MW Auto Sales Inc. d/b/a Car Depot, Liberty Federal Credit Union, United Casualty and Surety Insurance Company d/b/a United Surety Insurance Company, Richardo Dagher, Wafie Ibrahim, Carlos Melchor, individuals, Case No. 22AHCV00697 (Cal. Super. Ct., Los Angeles Cty., Sept. 19, 2022). The case type is stated as "Contractual Fraud (General Jurisdiction)." MW Auto Sales Inc. -- https://www.mwautosales.net/ -- is a used car dealer in Glen Allen, Virginia.[BN] The Plaintiff is represented by: Alexis Jugan, Esq. MADISON LAW APC 17702 Mitchell N. Irvine, CA 92614-6013 Phone: 949-756-9050 Email: ajugan@madisonlawapc.com - and - Louis Liberty, Esq. LOUIS A LIBERTY 1032 Flying Fish St. Foster City, CA 94404-1418 Phone: 650-341-0300 Email: Lou@carlawyer.com MW BHCC: Quintero Sues Over Unpaid Overtime Wages ------------------------------------------------- Celia Quintero, an individual and on behalf of all others similarly situated v. MW BHCC LLC a California limited liability company d.b.a. GRIFFIN CLUB LOS ANGELES; and DOES 1 through 100, inclusive, Case No. 22STCV32539 (Cal. Super. Ct., Los Angeles Cty., Oct. 4, 2022), is brought against the Defendants for violations of the California Labor Code by failing to pay the Plaintiff overtime wages. The Defendants had and have a policy or practice of failing to pay overtime wages to the Plaintiff in the State of California in violation of California state wage and hour laws as a result of, without limitation, the Plaintiff working over 8 hours per day, 40 hours per week, and/or 7 straight workdays in a workweek without paying them proper overtime wages. The Defendants also failed to accurately track and/or pay for all minutes actually worked; engaging, suffering, or permitting employees to work off the clock by requiring employees: to remain on-call, to suffer under the Defendants' control to complete pre-shift tasks before clocking in and post-shift tasks after clocking out (including answering calls from dispatch and others), to clock out for meal periods and continue working, to don and doff uniforms and/or safety equipment off the clock, to attend company meetings off the clock, to make phone calls or drive off the clock, says the complaint. The Plaintiff was employed by Defendants as a non-exempt employee. MW BHCC LLC is a limited liability company organized and existing under and by virtue of the laws of the State of California.[BN] The Plaintiff is represented by: David D. Bibiyan, Esq. Jean Hopkins Power, Esq. Jeffrey D. Klein, Esq. BIBIYAN LAW GROUP, P.C. 8484 Wilshire Boulevard, Suite 500 Beverly Hills, CA 90211 Phone: (310) 438-5555 Fax: (310) 300-1705 Email: david@tomorrawlaw.com jean@tomorrowlaw.com jeff@tomorrowlaw.com NETAPP INC: Settlement in Securities Suit Initially OK'd -------------------------------------------------------- NetApp, Inc. disclosed in its Form 10-Q Report for the current report dated July 29, 2022, filed with the Securities and Exchange Commission on August 30, 2022, that in May 2, 2022, the United States District Court for the Northern District of California preliminarily approved the settlement of a purported securities class action lawsuit filed in August 14, 2019. Said action named, as defendants, NetApp and certain of its executive officers. The complaint alleges that the defendants violated Section 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and SEC Rule 10b-5, by making materially false or misleading statements with respect to it financial guidance for fiscal 2020, as provided on May 22, 2019. Members of the alleged class are purchasers of the company's stock between May 22, 2019, and August 1, 2019, the date it provided revised financial guidance for fiscal 2020. The complaint alleges unspecified damages based on the decline in the market price of its shares following the issuance of the revised guidance on August 1, 2019. The defendants' Motion to Dismiss was granted on February 26, 2021, and the judge entered judgment in favor of NetApp and the other defendants. On March 26, 2021, the plaintiffs filed a notice of appeal. The parties subsequently engaged in settlement discussions, and on July 30, 2021, entered into a Memorandum of Understanding (MOU) providing for the settlement of the class action. Pursuant to the terms of the MOU, NetApp has agreed to pay approximately $2.0 million in connection with the settlement, and this amount was accrued during the three months that ended July 30, 2021. The parties subsequently executed a stipulation of settlement, which contains no admission of liability, wrongdoing, or responsibility by any of the parties, and which provides that the class action will be dismissed with prejudice, with mutual releases by all parties, upon final court approval. On September 24, 2021, the plaintiff filed an unopposed motion seeking court approval of the settlement. On May 2, 2022, the court preliminarily approved the settlement, subject to further consideration at a final approval hearing. NetApp is a global cloud-led, data-centric software company based in California. NFL ENTERPRISES: Oyler Sues Over Automatic Renewal Subscription --------------------------------------------------------------- Ryan Oyler, individually and on behalf of all others similarly situated v. NFL Enterprises LLC, Case No. 1:22-cv-08413 (S.D.N.Y., Oct. 3, 2022), is brought against the Defendant's false and misleading representations with regards to the Defendant's automatic renewal subscription. In July 2022, the Defendant autoconverted and autorenewed GamePass subscribers, including the Plaintiff, to a different, new service, known as NFL+, without their clear knowledge or consent and charged them a year's membership all at once. This autorenewal was in contrast to subscription services designed to let customers "opt-in" to automatic renewal after an initial term or at other points in their usage. The Defendant's default autorenewal takes advantage of consumer inertia, as psychological studies have shown autorenewal users are seven times more likely to "continue," or not cancel their subscriptions, compared to if a subscription service was set to automatically cancel ("autocancel"). Upon learning that his GamePass subscription was being converted into NFL+, Plaintiff went to the service's website to cancel and prevent any charges to his payment method. However, the Defendant utilized sophisticated and manipulative design and interface practices to stymie the Plaintiff's attempts. This included a link labeled "cancellation" which pulled up instructions that were unclear and non-intuitive such that Plaintiff could not adequately navigate and complete the process. The Plaintiff then removed the subscription and payment information from his account, before deleting it entirely. No email confirmation was provided as a result of these steps, which is a common practice on the part of companies in the subscription economy. The purpose of not providing a confirmation email is to avoid the customer retaining a record indicating when they cancelled and having proof, in the likely event the company continues to charge them. When Plaintiff was not charged on August 1, 2022, he believed his cancellation was effective. However, on or around August 24, 2022, the Defendant charged the Plaintiff's payment information via his PayPal account, even though he removed this payment method from his account prior to deleting his account. The only explanation for this charge is that the Defendant failed to remove the Plaintiff's account and payment information from their back-end systems. The Defendant retained the ability to charge him even though he specifically and successfully acted to prevent this. The Plaintiff was charged for the service even though he lacked access to any account to use the service he was charged for. No telephone support number existed for NFL+ and none of the help center topics addressed his issue. The Plaintiff finally attempted to call one of the only customer support numbers he could find, for the NFL shop. The representative the Plaintiff spoke to told him she could not help him about issues related to NFL+ or connect him with anyone who could help. The representative informed him she had received numerous similar calls from customers seeking the same assistance about being refunded the money they were charged. She informed him that all calls were being recorded for quality and training purposes, such that it is reasonable that Defendant's call records can confirm the significant number of affected customers. As a result of the false and misleading representations, the Subscription is sold at a premium price, approximately no less than $85.00 per year, excluding tax and sales, and higher than it would be sold for absent the misleading representations and omissions., says the complaint. The Plaintiff subscribed to GamePass in 2021 but decided to cancel it in 2022 upon the pending conversion into NFL+. NFL Enterprises LLC markets and sells a subscription service known as NFL+ Premium ("NFL Plus (+)," "Subscription" or "Service").[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Phone: (516) 268-7080 Email: spencer@spencersheehan.com NVIDIA CORP: Securities Litigation Ongoing in California Court -------------------------------------------------------------- NVIDIA Corporation disclosed in its Form 10-Q Report for the quarterly period ended July 31, 2022, filed with the Securities and Exchange Commission on August 31, 2022, that it is facing a putative securities class action lawsuit, captioned 4:18-cv-07669-HSG, initially filed on December 21, 2018, in the United States District Court for the Northern District of California, and titled "In Re NVIDIA Corporation Securities Litigation," filed an amended complaint on May 13, 2020. The amended complaint asserted that NVIDIA and certain NVIDIA executives violated Section 10(b) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and SEC Rule 10b-5, by making materially false or misleading statements related to channel inventory and the impact of cryptocurrency mining on GPU demand between May 10, 2017, and November 14, 2018. Plaintiffs also alleged that the NVIDIA executives who they named as defendants violated Section 20(a) of the Exchange Act. Plaintiffs sought class certification, an award of unspecified compensatory damages, an award of reasonable costs and expenses, including attorneys' fees and expert fees, and further relief as the Court may deem just and proper. On March 2, 2021, the district court granted NVIDIA's motion to dismiss the complaint without leave to amend, entered judgment in favor of NVIDIA, and closed the case. On March 30, 2021, the plaintiffs filed an appeal from the judgment in the United States Court of Appeals for the Ninth Circuit, case number 21-15604. The oral argument on the appeal was held on May 10, 2022. NVIDIA Corporation provides computing solutions based in California. OPSEC SECURITY: Hanigan Partly Wins Bid for Court-Authorized Notice ------------------------------------------------------------------- Chief District Judge David C. Nye of the U.S. District Court for the District of Idaho grants in part and denies in part the Plaintiff's Motion for Court-Authorized Notice in the lawsuit titled EMILY HANIGAN, individually and on behalf of all others similarly situated, Plaintiff v. OPSEC SECURITY, INC., and OPSEC ONLINE, LLC, Defendants, Case No. 1:22-cv-00064-DCN (D. Idaho). Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motion without oral argument. Upon review, and for the reasons set forth, the Court grants in part and denies in part the Motion. The Court grants conditional certification; however, the proposed notice must be refiled incorporating the revisions outlined in this Order. Plaintiff Hanigan brings a Fair Labor Standards Act ("FLSA") action seeking to represent a collective of similarly situated employees of OpSec Security Inc. and OpSec Online, LLC (collectively, "OpSec"). Hanigan, a former brand analyst for OpSec, seeks to represent other similarly situated brand analysts, senior brand analysts, and employees who performed similar job duties and were not paid proper overtime compensation during the past three years. Ms. Hanigan argues that the employees--regardless of job title, location, or supervisor--shared the primary job duty of reviewing the internet for potentially illegitimate activity for the Defendant's corporate clients. She also asserts that OpSec misclassified these workers as exempt from overtime protections found in the FLSA. She, along with four other former employees of OpSec, submitted affidavits asserting that each had similar job duties, that each regularly worked over forty hours a week, and that each were misclassified as exempt from overtime pay. Ms. Hanigan has provided the Court with a draft of the notice to be sent out to all potential plaintiffs in the class action, as well as the consent form the potential plaintiffs will use to opt-in to the collective action. A. Conditional Certification Judge Nye finds that Hanigan has met her burden for conditional certification at this stage in the case. Although OpSec provides evidence that the analysts were not working more than forty hours a week, this evidence (and the argument that flows from it) are premature. Judge Nye points out that Hanigan has provided more than one affidavit from multiple brand analysts that assert similar working hours, job duties, and a seemingly single policy that allegedly misclassified Hanigan and other brand analysts. This is enough to meet the Plaintiff's lenient burden at this initial stage. To satisfy the "similarly situated" requirement at the notice stage of the collective action, Hanigan must provide evidence in the form of pleadings and affidavits asserting that "the putative class members were together the victims of a single, decision, policy or plan." However, this evidence cannot simply be unsupported allegations of widespread violations. Judge Nye finds that Hanigan has met this standard. Hanigan has submitted her own sworn affidavit along with the sworn affidavits of four other former OpSec employees. Thus, conditional certification is granted at the notice stage. This does not prevent a later motion to decertify, Judge Nye notes. B. Form and Method of Notice The parties disagree about the form and method of the notice. The Court now resolves those disputes. After issuance of this Order, the parties must submit a new proposed notice form. The Supreme Court has held that notice in a collective action case must include a description of the rights afforded to potential plaintiffs. Here, Hanigan asserts that there is no need to include information regarding potential plaintiffs' right to their own attorney because it could be confusing for potential plaintiffs. In contrast, OpSec argues, and the Court agrees, that it is essential potential plaintiffs understand their right to an attorney. Although Hanigan's concern about clarity is valid, the Court is unconvinced that outweighs the interest in fully informing potential plaintiffs of their rights. Thus, the notice must include a description of potential plaintiffs' right to hire his or her own attorney. Idaho Rules of Professional Conduct require counsel to promptly disclose the basis or rate of their fees and expenses to clients before or within a reasonable time after commencing the representation. OpSec argues that this language means that Hanigan's attorneys must disclose how their fees are calculated. Hanigan argues that this language shows that her attorneys do not need to give the specific percentages of their rates until after they have been hired. The Court concludes that it is unnecessary for Hanigan's attorneys to disclose their exact fee percentage. Currently, the proposed notice states that Hannigan's attorneys will charge a contingency fee if the potential plaintiffs decide to hire them. Judge Nye holds that this is sufficient for a notice so long as once a potential plaintiff hires Hanigan's attorney, the exact fee rates are promptly disclosed. Occasionally, courts within the Ninth Circuit have chosen not to include disclosure about potential obligations and costs of discovery. When a court has determined that disclosure about the costs of litigation should not be included in the notice, it was when discovery was unlikely. Judge Nye holds that that reasoning is inapplicable here (as discovery will be necessary), and the Court finds it imperative that plaintiffs understand the obligations and costs they will take on if they choose to participate in litigation. Therefore, Hanigan must amend the notice to include a disclosure regarding costs and obligations associated with litigation. The notice and consent forms must convey the neutrality of the court, Judge Nye notes. This includes the form of consent as well. Hanigan has made a variety of changes to the notice form at OpSec's request. The Court will accept those changes. However, Hanigan has not agreed to three other changes regarding neutrality OpSec would like to make to the notice. OpSec argues that to fully convey neutrality, Hanigan should: (1) delete the reference to any electronic submission address other than email, because it is confusing; (2) delete counsel's toll-free telephone number, as that is not an avenue for consent; and (3) delete the phrase "any other related entities or affiliates," because OpSec is unaware of any other entities or affiliates that are involved in this case. The Court agrees with Hanigan that electronic submission of consent is a valid form of consent. However, the Court agrees with OpSec that language in the notice should be clear throughout both the notice and consent form. Thus, the Court agrees that electronic consent is reasonable and convenient for potential plaintiffs, who would like to opt-in to the lawsuit. OpSec disagrees with the language of the notice and consent form citing issues with clarity. The Court appreciates OpSec's concerns. Therefore, Hanigan's new notice and consent form must include consistent language. Next OpSec argues that the Plaintiff's counsel should remove their toll-free phone number because it encourages potential plaintiffs to call the Plaintiff's counsel to receive information about the case. And if the Plaintiff's counsel is to keep their toll-free number in the notice, OpSec argues that the notice should also include the phone number for OpSec's counsel. Judge Nye holds that the Plaintiff's counsel may include its phone number on the notice so that potential plaintiffs may contact them with queries about opting in. OpSec's counsel may not do so. Finally, OpSec argues that Hanigan should delete the language "any other related entities or affiliates," because OpSec is unaware of any other entities or affiliates that are involved in this case. Hanigan argues that the inclusion of this language is not to include some other unknown party, but rather to ensure that if any sort of technical misnomer occurs, the opt-in plaintiff can still proceed. The Court will allow Hanigan to keep the language in the notice because the caution is reasonable and does not appear to inconvenience OpSec in any way. C. Distribution of Notice OpSec has agreed to Hanigan's timeline for notice distribution (sixty days), the sending of a reminder notice thirty days after the initial notice is sent, and the distribution of notice through U.S. mail and email. OpSec, however, disagrees with the use of text message to distribute notice, and with Hanigan's request that OpSec produce a list of potential plaintiffs in seven days. The Court agrees that text message notice is unnecessarily invasive and that seven days is too short a time to compile an accurate and complete list of potential plaintiffs. The Court finds Hanigan's reasoning insufficient to allow notice to be sent by text message. The Court will give OpSec fourteen (14) days from the approval of the Notice and the Consent Form to create an accurate list of potential plaintiffs. This list will include each potential plaintiff's "(1) name, (2) last-known address, (3) last-known mobile telephone number, (4) last-known email address, (5) relevant job title(s), and (6) dates of employment in each relevant job title, in an electronic, delimited, and importable format." The Court believes that seven days is too short a time to provide this level of detailed information in an electronic format that the Plaintiff will be able to import. However, Hanigan makes a credible argument that OpSec will likely be able to create this list quickly. The Court finds that fourteen days should be sufficient time to create this list. Conclusion The Court grants the conditional certification of the putative class. The current draft of the Notice and the Consent Form is denied. Hanigan must refile a proposed notice that complies with this Order. Order The Court orders: 1. Hanigan's Motion is granted in part and denied in part as explained; 2. In compliance with the directions here, the Plaintiff must revise the Notice and the Consent Form within fourteen (14) days of this Order and submit the revised proposed Notice and Consent Form to the Court for approval; and 3. OpSec must provide a list of potential plaintiffs within fourteen (14) days of the Court's approval of the revised proposed Notice and Consent Form. A full-text copy of the Court's Memorandum Decision and Order dated Sept. 26, 2022, is available at https://tinyurl.com/47ks2j68 from Leagle.com. PETAL & PUP USA: Reilly Files Suit in Fla. Super. Ct. ----------------------------------------------------- A class action lawsuit has been filed against Petal & Pup USA, Inc. The case is styled as Erin Reilly, individually and on behalf of all others similarly situated v. Petal & Pup USA, Inc., Case No. 2022-11514-CIDL (Fla. Super. Ct., Volusia Cty., Sept. 19, 2022). The case type is stated as "Antitrust/Trade Regulations." Petal & Pup USA -- https://petalandpup.com.au/ -- is a company that operates in the Apparel & Fashion industry and is the ultimate online fashion destination for affordable, on trend, young women's fashion.[BN] The Plaintiff is represented by: Benjamin W. Raslavich, Esq. KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Phone: (813) 422–7782 Facsimile: (813) 422–7783 Email: ben@theKRfirm.com PHYSICIAN'S BUSINESS: Freeland Files Suit in S.D. West Virginia --------------------------------------------------------------- A class action lawsuit has been filed against Physician's Business Office, Inc. The case is styled as Hunter Freeland, individually, and on behalf of all others similarly situated v. Physician's Business Office, Inc., Case No. 2:22-cv-00431 (S.D.W. Va., Oct. 4, 2022). The nature of suit is stated as Other Contract for Breach of Contract. Physician's Business Office -- https://www.physiciansbusinessoffice.com/ -- offers physicians the tools needed to simplify workflow and manage practice to focus on patients.[BN] The Plaintiff is represented by: Cheryl A. Fisher, Esq. William M. Tiano, Esq. TIANO & O'DELL P. O. Box 11830 Charleston, WV 25339 Phone: (304) 720-6700 Fax: (304) 720-5800 Email: cfisher@tolawfirm.com wtiano@tolawfirm.com POLARIS INDUSTRIES: Parties Agree to Dismiss Hellman From Lawsuit ----------------------------------------------------------------- The U.S. District Court for the Eastern District of California, Sacramento Division, approves the parties' Stipulation of Dismissal of Plaintiff Michael Hellman in the lawsuit captioned MICHAEL HELLMAN, individually on behalf of himself and all others similarly situated; and FRANCISCO BERLANGA, individually on behalf of himself and all others similarly situated, Plaintiffs v. POLARIS INDUSTRIES INC., a Delaware corporation; POLARIS SALES INC., a Minnesota corporation; POLARIS INC. (f/k/a POLARIS INDUSTRIES INC.), a Minnesota corporation; and DOES 1 through 10, inclusive, Defendants, Case No. 2:21-cv-00949-JAM-DMC (E.D. Cal.). The Court has reviewed the parties' Stipulation and orders that Hellman's claims be dismissed with prejudice, with each party to bear its own costs. A full-text copy of the Court's Order dated Sept. 26, 2022, is available at https://tinyurl.com/yx6hpyrt from Leagle.com. PREMIER FACILITIES: Morris Sues to Recover Unpaid Overtime ---------------------------------------------------------- Richard Morris, individually, and on behalf of himself and other similarly situated current and former employees v. PREMIER FACILITIES SERVICES, LLC, Case No. 1:22-cv-01213-STA-jay (W.D. Tenn., Oct. 4, 2022), is brought against the Defendant as a collective action under the Fair Labor Standards Act to recover unpaid overtime compensation and other damages. The Plaintiff and the class typically worked at least 40 hours within weekly pay periods. For example, Plaintiff worked, on average, 60 to 66 hours per week. The Defendant was aware that Plaintiff and those similarly situated performed work during many of their 30-minute meals, and/or were not fully relieved of their job duties during such breaks. Nonetheless, the Defendant did not compensate them for such 30-minute meal periods during which they performed work and/or were not fully relieved of their job duties. As the Plaintiff and the class regularly worked over 40 hours per week, these unpaid meal periods should have been paid at the applicable overtime rate. The Defendant violated the FLSA by failing to pay the Plaintiff and those similarly situated for all hours worked over 40 per week at one and one-half times their regular hourly rate of pay within weekly pay periods, says the complaint. The Plaintiff was employed by the Defendant as an hourly-paid cleaning employee. The Defendant provides cleaning services for commercial and residential properties in Tennessee and in other nearby states.[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 Phone: (901) 754-8001 Facsimile: (901) 754-8524 Email: gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com PRESSLER FELT: Duong Files FDCPA Suit in D. New Jersey ------------------------------------------------------ A class action lawsuit has been filed against Pressler, Felt & Warshaw, LLP. The case is styled as Thang Duong, on behalf of himself and all others similarly situated v. Pressler, Felt & Warshaw, LLP, Case No. 1:22-cv-05630-KMW-AMD (D.N.J., Sept. 19, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Pressler, Felt & Warshaw -- https://pfwattorneys.com/ -- offers a unique debt collection approach.[BN] The Plaintiff is represented by: Lawrence C. Hersh, Esq. 17 Sylvan Street, Suite 102B Rutherford, NJ 07070 Phone: (201) 507-6300 Email: lh@hershlegal.com PURE FLIX: Holmes Files Suit in Cal. Super. Ct. ----------------------------------------------- A class action lawsuit has been filed against Pure Flix Entertainment LLC. The case is styled as Kelly Holmes, on behalf of all others similarly situated v. Pure Flix Entertainment LLC, Case No. 34-2022-00327702-CU-BT-GDS (Cal. Super. Ct., Sacramento Cty., Oct. 3, 2022). The case type is stated as "Business Tort - Civil Unlimited." Pure Flix -- https://www.pureflix.com/ -- manufactures, sells, and distributes family and faith based film properties.[BN] The Plaintiff is represented by: Jeffrey D. Kaliel, Esq. KALIEL GOLD PLLC 1100 15th Street NW-4th Floor Washington, DC 20005 Phone: (202) 615-3948 Email: jkaliel@kalielpllc.com R.T. FARM LABOR: Mondragon Files Suit in E.D. California -------------------------------------------------------- A class action lawsuit has been filed against R.T. Farm Labor, Inc., et al. The case is styled as Claudia Gonzalez Mondragon, Gustavo Gusman, Alan Reyes, on behalf of themselves and others similarly situated v. R.T. Farm Labor, Inc., Ricardo Trevino Jr., Ricardo Gomez Trevino, Harold A. Chuhlantseff, Case No. 1:22-cv-01259-JLT-BAM (E.D. Cal., Oct. 3, 2022). The nature of suit is stated as Agriculture Acts for Farmworker Rights. R T Farm Labor, Inc. is a trucking company running freight hauling business from Orosi, California.[BN] The Plaintiffs are represented by: Hector Rodriguez Martinez, Esq. Stanley Mallison, Esq. Gonzalo Quezada, Jr., Esq. MALLISON & MARTINEZ 1939 Harrison Street, Suite 730 Oakland, CA 94612 Phone: (510) 832-9999 Fax: (510) 832-1101 Email: hectorm@themmlawfirm.com stanm@themmlawfirm.com gquezada@themmlawfirm.com RENAISSANCE ECONOMIC: Einhorn Files FCRA Suit in S.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against Renaissance Economic Development Corporation. The case is styled as Michael Einhorn, individually and on behalf of all others similarly situated v. Renaissance Economic Development Corporation, Case No. 1:22-cv-08436 (S.D.N.Y., Oct. 3, 2022). The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. Renaissance -- https://www.renaissance-ny.org/ -- provides direct financing and technical assistance services throughout New York City.[BN] The Plaintiff is represented by: Hashim Rahman, Esq. RAHMAN LEGAL 43 West 43rd Street Suite 204 New York, NY 10036 Phone: (347) 433-6139 Fax: (212) 954-5391 Email: hrahman@rahmanlegal.com ROBOT FACTORY: Lawal Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Robot Factory, Inc. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Robot Factory, Inc., Case No. 1:22-cv-08488 (S.D.N.Y., Oct. 5, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Robot Factory is a collaborative streetwear and storytelling brand, made by a collective of creative friends.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com ROJAS FOOD SERVICES: Dawkins Files ADA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Rojas Food Services, LLC. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. Rojas Food Services, LLC, Case No. 1:22-cv-05914 (E.D.N.Y., Oct. 3, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rojas Food Services, LLC is a food products supplier in New York City.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com SAFEMOON LLC: Merewhuader Suit Transferred to D. Utah ----------------------------------------------------- The case styled as Bill Merewhuader, Christopher Polite, Tim Viane, Mark Combs, Vlad Iacob, Benjamin Northey, individually and on behalf of all others similarly situated v. SafeMoon LLC, SafeMoon US, SafeMoon Connect, SafeMoon LTD, SafeMoon Protocol, SafeMoon Media Group, Braden John Karony, Jack Haines-Davies, Ryan Arriaga, Shaun Witriol, Henry Wyatt "Hank", Jake Paul, Nick Carter, DeAndre Cortez Way, Ben Phillips, Miles Parks McCollum, David Portnoy, Kyle Nagy, Daniel M. Keem, Defendants; Safemoon Investor Group, Movant, Case No. 2:22-cv-01108 was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the District of Utah on Oct. 5, 2022. The District Court Clerk assigned Case No. 2:22-cv-00642-CMR to the proceeding. The nature of suit is stated as Other Fraud. SafeMoon -- https://safemoon.com/ -- is a human-focused technology and innovation business expanding blockchain technologies for a brighter tomorrow.[BN] The Plaintiff is represented by: Jacob U. Ginsburg, Esq. KIMMEL & SILVERMAN, P.C. 30 E. Butler Ave. Ambler, PA 19002 Phone: (267) 468-5374 Email: jginsburg@creditlaw.com SALON SERVICES: Lawal Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Salon Services, LLC. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Salon Services, LLC, Case No. 1:22-cv-08458 (S.D.N.Y., Oct. 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Salon Services -- https://www.salonservicespro.com/ -- is a wholesale beauty supply distributor of professional salon products serving licensed professionals with their education and salon needs.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com SAMSUNG ELECTRONICS: Mark Files Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Samsung Electronics America, Inc. The case is styled as Roald Mark, on behalf of himself and all others similarly situated v. Samsung Electronics America, Inc., Case No. 1:22-cv-07974-VEC (S.D.N.Y., Sept. 19, 2022). The nature of suit is stated as Other Fraud. Samsung Electronics -- http://www.samsung.com/us-- leads the global market in high-tech electronics manufacturing and digital media.[BN] The Plaintiff is represented by: Mark Samuel Reich, Esq. LEVI & KORSINSKY LLP 55 Broadway, Ste. 10th Floor New York, NY 10006 Phone: (212) 363-7500 Email: mreich@zlk.com SBK PRESERVES: Batista Sues Over General Laborers' Unpaid Wages --------------------------------------------------------------- JUAN MANUEL BATISTA, on behalf of himself, FLSA Collective Plaintiffs, and the Class, Plaintiff v. SBK PRESERVES, INC., SARABETH LEVINE, and CHARLIE APT, Defendants, Case No. 1:22-cv-08473 (S.D.N.Y., Oct. 5, 2022) seeks to recover from the Defendants unpaid wages, including overtime, due to time shaving; unpaid spread of hours premium; compensation for late payment of wages; statutory penalties; liquidated damages; and attorneys' fees and costs pursuant to the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was hired by the Defendants to work as a general laborer from February 5, 2022 until June 1, 2022. SBK Preserves, Inc. owns and operates a chain of restaurants.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 SCA OF MO: Ray Sues Over Unpaid Overtime Compensation ----------------------------------------------------- Eddie Ray, Jr., on behalf of himself and all others similarly situated v. SCA of MO, LLC, Case No. 3:22-cv-02304 (S.D. Ill., Oct. 5, 2022), is brought against the Defendant for unpaid overtime compensation, and related penalties and damages as a result of Defendant's payroll policies and practices in direct violation of the Fair Labor Standards Act. In October 2021, shortly after its acquisition of Metro Commercial Sweeping, the Defendant began to automatically deduct a half-hour mealtime from the Plaintiff's time. The Defendant's deductions automatically removed one and a half or more hours from the Plaintiff and similarly-situated employees' time each week. These automatic deductions occurred even though the Plaintiff was continuously on duty and unable to take a bona fide meal break. In October 2021, the Plaintiff complained to management that he was not taking half-hour breaks and therefore such break time should not be deducted from his time. Around the same time, the Plaintiff raised the issue to his district manager of submitting a time card change form in the event he was unable to take a meal break so that he was properly paid for that time. His district manager responded that he would be fired if he so much as tried to submit such a change form. After a week, the company responded to the Plaintiff's complaint by discontinuing the automatic deduction of meal breaks for approximately six months. In May 2022, the Defendant resumed the practice of automatically deducting a half-hour meal break from the Plaintiff's and similarly-situated employees' daily hours worked. The Defendant's deductions automatically removed one- and one-half or more hours from the Plaintiff's and similarly-situated employee's weekly hours worked. Therefore, when the Plaintiff and similarly-situated employees work forty hours or more per week, the Defendant is failing to pay them overtime premiums all hours worked at least one- and one-half times the regular rate of pay for all work performed in excess of forty hours per week, says the complaint. The Plaintiff was hired by the Defendant to work as a sweeping truck operator on September 1, 2014. SCA of MO, LLC is a limited liability corporation operating in Illinois which may be reached for service through its Illinois.[BN] The Plaintiff is represented by: Alan G. Crone, Esq. Philip Oliphant, Esq. Edward Rolwes, Esq. THE CRONE LAW FIRM, PLC 88 Union Avenue, 14th Floor Memphis, TN 38103 Voice: 800.403.7868 Voice: 901.737.7740 Fax: 901.474.7926 Email: acrone@cronelawfirmplc.com poliphant@cronelawfirmplc.com SIERRA HEALTH: Love Files Suit in Cal. Super. Ct. ------------------------------------------------- A class action lawsuit has been filed against Sierra Health and Wellness Centers LLC. The case is styled as Aushara Love, as an individual and on behalf of all others similarly situated v. Sierra Health and Wellness Centers LLC, Case No. 34-2022-00327719-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Oct. 3, 2022). The case type is stated as "Other Employment - Civil Unlimited." Sierra Health and Wellness Centers -- https://www.sierrahealthwellnesscenters.com/ -- offers addiction behavioral health, wellness and addiction treatment services and have dual diagnosis addiction rehab treatment centers in Northern California.[BN] The Plaintiff is represented by: Larry W. Lee, Esq. DIVERSITY LAW GROUP 515 S Figueroa St., Ste. 1250 Los Angeles, CA 90071-3316 Phone: 213-488-6555 Fax: 213-488-6554 Email: lwlee@diversitylaw.com SOUTH CHINA SEA RESTAURANT: Dawkins Files ADA Suit in E.D. New York ------------------------------------------------------------------- A class action lawsuit has been filed against South China Sea Restaurant Company, Inc. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. South China Sea Restaurant Company, Inc., Case No. 1:22-cv-05915-RPK-VMS (E.D.N.Y., Oct. 3, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. South China Sea Restaurant Company is a restaurant in New York City.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com SPOT INTERNATIONAL: Lawal Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Spot International, Inc. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Spot International, Inc. d/b/a Modshop, Case No. 1:22-cv-08451 (S.D.N.Y., Oct. 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Spot International, Inc. doing business as Modshop -- https://modshop1.com/ -- offers an exclusive collection of luxury & modern furniture at the best possible price.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com STAR FREIGHT: Nesmith Sues Over Breach of Contract -------------------------------------------------- Ronald Nesmith, Terry Crosby, and Richard Maye, individually and on behalf of others similarly situated v. STAR FREIGHT LLC, Case No. 2:22-cv-00287 (N.D. Ind., Oct. 4, 2022), is brought against the Defendant for breach of contract and violations of the Truth in Leasing Act. The Defendant engaged in a widespread scheme to violate its Lease Agreements with owner-operators/lessors in order to steal part of their compensation. The Defendant is a federally licensed motor carrier that enters into contracts ("Lease Agreements") with owner operators to use their trucks, with or without a driver, to transport goods under their motor carrier license. The Plaintiffs signed Independent Contractor Agreement (hereinafter "Lease Agreement") with Defendant to "lease" the trucks to Defendant for the purpose of transporting goods. The Lease Agreements provided that Defendant would pay Plaintiffs a percentage of the Adjusted Gross Revenue ("AGR") of each load hauled with their equipment. The AGR was the gross receipt (total price) of the load, less specific deductions that are listed in the Lease Agreements. The percentage depended on the type of trailer used to haul the load, as specified in the Lease Agreement. Defendants agreed to pay 72% of AGR for Dry Van (non-temperature-controlled trailers) or Power Only (trailer provided by the shipper), 71% of AGR for reefer (temperature-controlled trailers), and 74% of AGR for intermodal containers (containers that can move between trucks, trains, and cargo ships). The Defendant frequently refused to provide the Plaintiffs with copies of the original brokers' load confirmation sheets. Instead, Defendant communicated the price of the load to the Plaintiffs via text message, over the phone, or through Omnitracs (the Defendant's fleet management software). The Defendant lied and under-reported the load rate (or price) of the Plaintiffs' loads to the Plaintiffs, and then paid the Plaintiffs their allotted percentage of the lower, underreported amount, in violation of their Lease Agreements with the Plaintiffs. The Defendant directly pocketed the portion of gross receipts they concealed from each driver and paid drivers' their promised portion of on the lower, underreported amount. The Defendant violated the TILA rules by not adhering to the terms of its lease agreement, says the complaint. The Plaintiffs and other drivers worked for the Defendant as owner-operators. Star Freight is a federally regulated motor carrier providing transportation services to the shipping public and is an "authorized carrier."[BN] The Plaintiff is represented by: Christopher J. Wilmes, Esq. Emily R. Brown, Esq. HUGHES SOCOL PIERS RESNICK & DYM 70 W. Madison St., Ste. 4000 Chicago, IL 60602 Phone: (312) 580-0100 Email: cwilmes@hsplegal.com ebrown@hsplegal.com STURM RUGER: Jones Sues Over Failure to Prevent Data Breach ----------------------------------------------------------- Mark Jones, individually and on behalf of all others similarly situated v. STURM, RUGER & COMPANY, INC., Case No. 3:22-cv-01233 (D. Conn., Oct. 4, 2022), is brought arising out of the recent data breach involving the Defendant's failure to prevent the Data Breach. Ruger owns the website www.ShopRuger.com where it sells certain products and merchandise directly to consumers. To make a purchase or register an account on ShopRuger.com, the Plaintiff and Class Members were required to provide certain sensitive, non-public information to the Defendant. Unfortunately, Ruger failed to properly secure and safeguard the personally identifiable information provided by customers when making purchases on this website, including without limitation, their unencrypted and unredacted first and last names, shipping addresses, and email addresses ("PII"), their payment card data which includes their credit/debit card numbers in combination with security codes, access codes, card expiration dates, and billing addresses ("PCD"), and other sensitive information including the product they purchased, the price they paid, and the number of items purchased (collectively with PII and PCD, "Private Information"). This Data Breach was engineered and targeted at accessing and exfiltrating the Private Information of Plaintiff and Class Members in order for criminals to use that information in furtherance of theft, identity crimes, and fraud. The Defendant's failure to prevent and detect the Data Breach is particularly egregious considering the nature of its business and the Private Information it collected. The aggregate information acquired by cybercriminals in this Data Breach is particularly concerning considering that the Defendant's customers were purchasing firearm accessories from ShopRuger.com. Criminals can now access their Private Information which includes the nature of their purchases and their shipping and billing addresses. With this information criminals can target the homes of firearm owners to steal firearms that they cannot obtain through legal channels. As a result of the Defendant's failure to prevent the Data Breach, or detect it during the nearly two years that criminals were siphoning its customers' personal and private data, thousands of ShopRuger.com customers across the United States have suffered real and imminent harm as a direct consequence of Defendant's conduct, which includes: refusing to take adequate and reasonable measures to ensure its data systems were protected; refusing to take available steps to prevent the breach from happening; failing to adequately audit and monitor its third party data security vendors; failing to disclose to its customers the material fact that it or its vendors did not have adequate computer systems and security practices to safeguard customers' personal and financial information; and failing to provide timely and adequate notice of the data breach, says the complaint. The Plaintiff visited Ruger's website and provided Ruger with his PII and PCD by using his Discovery credit card in connection with purchases on ShopRuger.com. Sturm, Ruger & Company, Inc. is a firearms design, manufacturing, and sales company headquartered in Southport, Connecticut.[BN] The Plaintiff is represented by: Joseph P. Guglielmo, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Phone: (212) 223-6444 Facsimile: (212) 223-6334 Email: jguglielmo@scott-scott.com - and - Anja Rusi, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 156 South Main Street P.O. Box 192 Colchester, CT 06415 Phone: 860-537-5537 Fax: 860-537-4432 Email: arusi@scott-scott.com - and - Terence R. Coates, Esq. Justin C. Walker, Esq. Dylan J. Gould, Esq. MARKOVITS, STOCK & DEMARCO, LLC 3825 Edwards Road, Suite 650 Cincinnati, OH 45209 Phone: (513) 651-3700 Fax: (513) 665-0219 Email: tcoates@msdlegal.com jwalker@msdlegal.com dgould@msdlegal.com - and - Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 221 West Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (847) 208-4585 Email: gklinger@milberg.com T.W. GARNER: Faces Class Suit Over Texas Pete Hot Sauce's False Ads ------------------------------------------------------------------- Bevan Hurley, writing for Yahoo!News, reports that a grocery shopper from Los Angeles has filed a class action lawsuit against the makers of Texas Pete hot sauce, accusing the company of false advertising because the popular condiment is made in North Carolina. Philip White filed the suit against T.W. Garner Food Co claiming he had been deceived when he purchased a $3 bottle of Texas Pete at a Ralph's grocery store in 2021, Nexstar Media Wire reported. The company had "cheated its way to a market-leading position in the $3bn hot-sauce industry at the expense of law-abiding competitors and consumers nationwide who desire authentic Texas hot sauce", Mr White alleges in the lawsuit. Mr White goes on to state that the label includes "the famed white 'lone' star from the Texan flag together with a 'lassoing' cowboy". "There is surprisingly nothing Texas about them," the complaint said. Mr White claimed to have been surprised when he learn that Texas Pete is manufactured in Winston-Salem, North Carolina, which T.W. Garner Food Co freely admits on its website. In a 2014 article on its website, the company says the company's founder Sam Garner and his sons Ralph and Harold came up with the name in the 1930s. When a marketing advisor recommended the name "Mexican Joe," Sam Garner rejected the idea in favour of an "American name". He opted for Texas due to the state's "reputation for spicy cuisine", and Pete for his son Ralph's nickname. In his lawsuit, Mr White claims the hot sauce's origin story was further evidence of alleged deception. "In revealing the thought process behind its brand name, (T.W. Garner Food Co.) admits that Texas's reputation was one they were trying to mimic and capitalise on when creating their brand," the lawsuit states. He went on to claim that the company was harming companies in Texas and misleading consumers. Had Mr White known the sauce was made in North Carolina, he wouldn't have purchased it, and he believes others have been similarly wronged. "White relied upon the language and images displayed on the front label of the product, and at the time of purchase understood the product to be a Texas product," the lawsuit states. T.W. Garner Food Co did not immediately respond to a request for comment. [GN] TEDDY SACK CORP: Lawal Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Teddy Sack Corp. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Teddy Sack Corp., Case No. 1:22-cv-08487 (S.D.N.Y., Oct. 5, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Teddy Sack Corp. doing business as Giant Teddy -- https://www.giantteddy.com/ -- offers soft, plush, adorable Giant Teddy brand bear as big as 7 feet tall, all colors, style.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com TESLA INC: Lynch's Bid to Approve Content of Notice Granted in Part ------------------------------------------------------------------- Magistrate Judge Susan Hightower of the U.S. District Court for the Western District of Texas, Austin Division, grants in part the Plaintiffs' Motion to Approve Content of Notice in the lawsuit entitled JOHN LYNCH, DAXTON HARTSFIELD, and SHAWN SAKHIZADA, individually and on behalf of all others similarly situated, Plaintiffs v. TESLA, INC., Defendant, Case No. 1:22-cv-00597-RP (W.D. Tex.). Now before the Court are the Defendant's Advisory to the Court and Proposed Notice, and the Plaintiff's Motion to Approve Content of Notice, both filed Sept. 23, 2022. The Plaintiffs bring the putative class action lawsuit, individually and on behalf of all others similarly situated, against their former employer Tesla under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. Section 2101, et seq. (the "WARN Act"), and Section 1400 of the California Labor Code. They allege that Tesla violated the WARN Act by failing to provide them and other potential class members with sixty days advance written notice before it terminated their employment in a "mass layoff." They ask the Court to certify this action as a class action under Federal Rule of Civil Procedure 23 and be designated class representatives. On July 5, 2022, the Plaintiffs filed an Emergency Motion for a Protective Order, seeking a protective order under Rule 23(d) to prevent Tesla from obtaining releases from individuals it is laying off. The Court granted the Plaintiffs' Motion for Protective Order in part on Sept. 16, 2022. It ordered Tesla to notify all terminated employees, who have received or executed separation agreements on or after June 19, 2022, of the existence of this lawsuit, and to continue issuing such notices until the merits of the Plaintiffs' claims are resolved in federal court or in arbitration proceedings. The Court further ordered the parties to confer and submit a joint proposed notice by Sept. 23, 2022. The parties did not agree on a joint proposed notice but submitted separate proposed notices. After considering the parties' proposed notices and Tesla's Advisory to the Court, the Plaintiffs' Motion to Approve Content of Notice is granted in part. The Court orders Tesla to issue a Notice in the form shown on the following page. A full-text copy of the Court's Order dated Sept. 26, 2022, is available at https://tinyurl.com/3twsjt7w from Leagle.com. TESLA INC: Magistrate Judge Recommends Arbitration in Lynch Suit ---------------------------------------------------------------- In the lawsuit captioned JOHN LYNCH, DAXTON HARTSFIELD, and SHAWN SAKHIZADA, individually and on behalf of all others similarly situated, Plaintiffs v. TESLA, INC., Defendant, Case No. 1:22-cv-00597-RP (W.D. Tex.), Magistrate Judge Susan Hightower of the U.S. District Court for the Western District of Texas, Austin Division, issued a Report and Recommendation recommending that the Court grants the Defendant's renewed motion to dismiss and compel individual arbitration. Before the Court are the Defendant's Renewed Motion to Dismiss and Compel Individual Arbitration Under Rules 12(b)(1) and 12(b)(3), filed Aug. 2, 2022; the Plaintiffs' Opposition to Tesla's Renewed Motion to Dismiss and Compel Individual Arbitration Under Rules 12(b)(1) and 12(b)(3), filed Aug. 16, 2022; and the Defendant's Reply, filed Aug. 23, 2022. By Text Order entered Aug. 4, 2022, the District Court referred the Motion to the Magistrate Judge for a report and recommendation, pursuant to 28 U.S.C. Section 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Plaintiffs Lynch, Hartsfield, and Sakhizada bring this putative class action lawsuit, individually and on behalf of all others similarly situated, against their former employer Tesla, Inc., under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. Section 2101, et sq. (the "WARN Act"), and Section 1400 of the California Labor Code. The Plaintiffs allege that Tesla violated the WARN Act by failing to provide them and other potential class members with sixty days advance written notice before it terminated their employment in a "mass layoff." The Plaintiffs ask the Court to certify this action as a class action under Federal Rule of Civil Procedure 23 and be designated class representatives. The Plaintiffs also seek compensatory damages, attorneys' fees, and costs. In the instant Motion, Tesla moves to dismiss this lawsuit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(3)4 and compel this case to arbitration based on the arbitration clauses in the Plaintiffs' employment agreements. The Plaintiffs argue that the Court should not enforce the Arbitration Agreements because they are unconscionable under California law. In this case, the Court's analysis begins and ends with the determination that the parties have entered into a valid delegation clause. When they were hired, Plaintiffs Lynch and Hartsfield agreed to the following arbitration provision, which was contained in their offer letters (the "Employment Agreements"). Plaintiff Sakhizada agreed to a substantially similar provision in his Employment Agreement. The Arbitration Agreements here expressly incorporate the JAMS Rules, stating that any dispute will be "conducted by the Judicial Arbitration and Mediation Services/Endispute, Inc. ('JAMS'), or its successors, under the then current rules of JAMS for employment disputes." JAMS Employment Arbitration Rule 11(b) contains a delegation clause granting the arbitrator the power to resolve any dispute regarding arbitrability. The express adoption of this rule "presents clear and unmistakable evidence that the parties agreed to arbitrate arbitrability," Judge Hightower notes. Because the arbitration clauses here expressly incorporate the JAMS Rules and those rules delegate arbitrability disputes to the arbitrator, there is clear and unmistakable evidence that the parties agreed to arbitrate arbitrability, Judge Hightower points out. The Plaintiffs do not dispute that they signed and executed the Employment Agreements containing the arbitration clauses, or that their claims fall within the Arbitration Agreements. Instead, the Plaintiffs argue that the Arbitration Agreements are unenforceable under Section 2 of the Federal Arbitration Act ("FAA") because they are procedurally and substantively unconscionable under California law. Specifically, the Plaintiffs argue that the Arbitration Agreements are unconscionable because they (1) were "included in contracts of adhesion"; (2) referred to the JAMS Rules but failed to provide the Plaintiffs with copies of those rules; (3) required the arbitration proceedings to be confidential which gives employers an unfair advantage; and (4) are not completely bilateral. The Plaintiffs' unconscionability claims concern not whether an agreement has been formed between them and the Defendant, but the enforceability of the Arbitration Agreements. Those claims, therefore, are for the arbitrator to decide, Judge Hightower holds. Under California law, the Plaintiffs' unconscionability challenges are challenges to enforcement of the Employment Agreements, not their formation. The Plaintiffs' challenges, therefore, must be resolved by an arbitrator. The Plaintiffs raise no challenge to the Arbitration Agreements other than unconscionability. Accordingly, Tesla's Motion to Compel Arbitration should be granted, Judge Hightower holds. As all issues the Plaintiffs have raised must be referred to arbitration, the Court recommends dismissal of this action. Based on the foregoing, the Magistrate Judge recommends that the District Court grant the Defendant's Renewed Motion to Dismiss and Compel Individual Arbitration and dismiss the Plaintiffs' First Amended Complaint without prejudice. The Court further orders that the Clerk remove the case from the Magistrate Court's docket and return it to the docket of the Honorable Robert Pitman. Judge Hightower says the parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file written objections to the proposed findings and recommendations contained in this Report within 14 days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except on grounds of plain error, will bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. A full-text copy of the Court's Report and Recommendation dated Sept. 26, 2022, is available at https://tinyurl.com/5cd57w78 from Leagle.com. TESLA INC: Nachman Sues Over Deceptive Branding and Labeling ------------------------------------------------------------ Michael Nachman, individually and on behalf of a class of similarly situated persons v. TESLA, INC., TESLA LEASE TRUST; and TESLA FINANCE LLC, Case No. 2:22-cv-05976 (E.D.N.Y., Oct. 5, 2022), is brought on behalf of persons who purchased a Telsa vehicle with advanced driver assistance systems ("ADAS"), a.k.a. "Autopilot", "Enhanced Autopilot", or "Full Self-Driving Capability" ("FSD") (the "Vehicles"), against Tesla's branding and labeling of the Vehicles, conveying a message to consumers that is deceptive and misleading and therefore unlawful, namely, that the Vehicles have are self-driving without the need for human supervision and interaction, in violation of the federal Magnuson-Moss Warranty Act and California's False Advertising Law, Consumer Legal Remedies Act, and Unfair Competition Law, as well as common law claims for fraud and deceit, negligent misrepresentation, negligence, and unjust enrichment. Unfortunately for consumers, the Vehicles require constant and intensive human supervision and interaction, meaning they are not in fact self-driving. The Plaintiff and all class members were harmed by paying more to purchase Vehicles with ADAS than Defendant's Tesla vehicles without ADAS. Despite portraying itself as a leader in autonomous vehicle technology, Tesla's ADAS features have been surpassed by numerous automaker competitors that have developed autonomous driving technology far more advanced than Tesla's, and now available in some consumer markets. At the same time, former Tesla employees and investigations have revealed damning information that now makes clear that, contrary to Tesla's repeated promises that it would have a fully self-driving car within months or a year, Tesla has never been remotely close to achieving that goal. For example, to accompany the 2016 launch of Tesla's "Enhanced Autopilot" and "Full Self-Driving" versions of its ADAS technology, much of the Tesla Autopilot engineering team dropped everything to produce a video that purports to show a Tesla car driving itself. The video begins with the following message: "The person in the driver's seat is only there for legal reasons. He is not driving anything. The car is driving itself." In reality, Tesla employees made the video would later reveal that the car in the video had significant assistance from commercial mapping software not available to Tesla customers, and that the car still performed poorly and even ran into a fence during filming. Six years later in 2022, Tesla has yet to produce anything even remotely approaching a fully self-driving car. Instead, Tesla pushes out "updates" to its experimental FSD Beta software to a small minority of Tesla owners, who effectively act as untrained test engineers testing experimental software on public roadways. Drivers have consistently found that Tesla's FSD Beta software has myriad problems, such as cars failing to make routine turns, running red lights, and steering directly into large objects and oncoming traffic. There have also been numerous collisions involving Tesla's purportedly cutting-edge ADAS software, including Tesla vehicles plowing at high speeds into large stationary objects such as emergency vehicles and an overturned box truck. Dozens of people have suffered fatal and other serious injuries as a result of these ADAS-related collisions, triggering a host of investigations by state and federal regulators. The reality of Tesla's ADAS technology is far different from what Tesla and Musk have spent years telling consumers. Instead of providing its customers the "Full Self-Driving Capability" they paid for, Tesla uses them as untrained test engineers to test drive its experimental FSD Beta software on public roadways, which generates data that Tesla can use to improve its software. Along the way, scores of Tesla owners who believed Tesla's and Musk's deceptive and misleading statements about the capabilities of Tesla's ADAS technology have been killed and seriously injured when that technology failed, often in the face of routine roadway scenarios. The Plaintiff brings this class action lawsuit on behalf of himself and fellow consumers who purchased or leased a new Tesla vehicle with Tesla's ADAS technology but never received the self-driving car that Tesla promised them, says the complaint. The Plaintiff purchased a Tesla Model S from the Tesla dealership in Manhasset, New York. The Defendant designs, develops, manufactures, tests, markets, distributes, sells, and leases electric vehicles under the brand name "Tesla."[BN] The Plaintiff is represented by: Charles D. Moore, Esq. REESE LLP 100 South 5th Street, Suite 1900 Minneapolis, MN 55402 Phone: 212-643-0500 Email: cmoore@reesellp.com - and - Michael R. Reese, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Phone: (212) 643-0500 Facsimile: (212) 253-4272 Email: mreese@reesellp.com - and - George V. Granade, Esq. REESE LLP 8484 Wilshire Boulevard, Suite 515 Los Angeles, CA 90211 Phone: (310) 393-0070 Facsimile: (212) 253-4272 Email: ggranade@reesellp.com TESTAMENT LLC: Wellborn Sues Over to Recover Overtime Wages ----------------------------------------------------------- Jacob Wellborn, individually and on behalf of all others similarly situated v. TESTAMENT LLC D/B/A TESTAMENT CONSTRUCTION LLC, Case No. 7:22-cv-00212 (W.D. Tex., Oct. 5, 2022), is brought recover overtime wages, liquidated damages, and attorneys' fees and costs pursuant to the provisions the Fair Labor Standards Act of 1938. Although the Plaintiff routinely worked in excess of 40 hours per workweek, the Plaintiff have not been paid overtime of at least one and one-half their regular rates for all hours worked in excess of 40 hours per workweek. Specifically, the Defendant only paid overtime after the Plaintiff worked more than 50 hours each week. Testament knowingly and deliberately failed to compensate the Plaintiff overtime of at least one and one-half their regular rates for all hours worked in excess of 40 hours per workweek on a routine and regular basis in the last three years, says the complaint. The Plaintiff worked for the Defendant as an Operator from August 2021 until April 2022. Testament "specializes in building drilling pads and other heavy oilfield construction, land clearing, earth moving, foundations of all sizes, and general commercial construction" and is "one of the fastest growing general contractors for oil field drilling site preparation."[BN] The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. Lauren E. Braddy, Esq. Blayne Fisher, Esq. ANDERSON ALEXANDER, PLLC 819 North Upper Broadway Corpus Christi, TX 78401 Phone: (361) 452-1279 Facsimile: (361) 452-1284 Email: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com blayne@a2xlaw.com TIKTOK INC: Frankel Files Class Action Over Unauthorized Ads ------------------------------------------------------------ Himansh Gupta, writing for The Current Online, reports that Bethenny Frankel, an American entrepreneur and former 'Real Housewife,' has filed a class action lawsuit against TikTok for 'unauthorized ads.' The lawsuit, which was filed on October 6 in Manhattan federal court, claims that the video-sharing platform allowed users to create "numerous videos" using her name, image, and other features of her "persona to peddle counterfeit goods." Who Is TikTok Star Bethenny Frankel? Bethenny Frankel, a Tiktok star, has over 864 thousand followers. Skinnygirl was founded by her in 2009. According to her LinkedIn profile, Frankel graduated from New York University. She earned a Master of Business Administration degree. The entrepreneur founded BB Endeavors LLC in 2001. The fashion expert has 2.7 million followers on Instagram. She also hosts the unapologetic business and life advice show Just B with Bethenny Frankel. Bethenny Frankel's Early Life Frankel is the only child of horse trainer Robert J. Frankel and interior designer Bernadette Birk. Her father was German-Jewish, and her mother was a Welsh Roman Catholic. Frankel's father abandoned her mother when she was four years old. Her mother married horse trainer John Parisella, who is Italian and Roman Catholic when she was five years old. Frankel recalls a difficult childhood. According to Frankel, her mother "was always drinking" and frequently argued violently with her stepfather. Frankel stated that she had moved several times and attended several schools before attending boarding school. Frankel attended Catholic schools as a child and graduated from Pine Crest School in Fort Lauderdale, Florida, where she lived on campus, in 1988. She studied at the Natural Gourmet Institute in New York City, Boston University for two years, and graduated from New York University with a degree in psychology and communications. TikTok made use of Bethenny's proprietary content. TikTok is being sued in a class action lawsuit for infringing on Bethenny Frankel's publicity rights. In a class action lawsuit filed in Manhattan federal court on October 6, a former "Real Housewife" and successful businesswoman accused TikTok of "allowing users to misuse her and others' likenesses to endorse products without permission." If you're a content creator and have experienced a similar situation, you can join Bethenny Frankel's lawsuit. According to the recently filed lawsuit, TikTok allowed users to create "numerous videos" with her name, voice, image, and other features of her persona in order to peddle counterfeit goods, infringing on her publicity rights. The renowned law firm "Morgan & Morgan" is handling Bethenny's case. What Exactly Occurred? The "Real Housewives of New York City" issued a statement before the lawsuit was made public. She claimed that a company selling counterfeit products stole her TikTok video from September and reposted it for marketing purposes. TikTok, on the other hand, allowed it to happen. In a statement, Frankel said, "It came to my attention that TikTok was disseminating videos using my proprietary content without my consent to sell merchandise with which I have no affiliation." "I've discovered that this is a widespread problem that affects creators of all sizes all over the space." It's unacceptable, and I want to be a change agent and use my platform to effect change in the industry." According to her lawyer at Morgan & Morgan, Frankel seeks compensation for "significant damages to her business and reputation, as well as broad changes to impose stricter regulations regarding TikTok's advertising" in the prayer section. Because the lawsuit is a class action, Bethenny's lawyers have urged other creators who have been victims of such scams to come forward and potentially join the suit. The good news is that this class action lawsuit is not being brought solely for personal gain. She is advocating for sweeping policy changes at TikTok. What is TikTok's reaction? When Frankel previously approached TikTok about this, they refused to remove the unauthorized content. Influencers and content creators spent months building and developing their brands, according to John Morgan and John Yanchunis, who are representing Frankel in the class action lawsuit. Not to mention the time it takes to gain the trust of their audiences. "As the fastest growing social media platform, TikTok has the responsibility to implement measures to detect and stop illegal practices, such as the misuse of their content creators' names and likenesses," the attorneys continued. It was also claimed that the alleged videos violated Frankel's right to privacy and caused significant financial harm to her business. "These practices deceive and harm consumers, in addition to causing damage to her individual business and reputation." "Our goal is to hold TikTok accountable and ensure that they take the necessary steps to prevent this from happening again," the attorneys concluded in a joint statement. TikTok, the popular social media platform, stated that it has strict policies in place to "protect people's hard-earned intellectual property and keep misleading content off of TikTok." When Frankel previously approached TikTok about this, they refused to remove the unauthorized content. Influencers and content creators spent months building and developing their brands, according to John Morgan and John Yanchunis, who are representing Frankel in the class action lawsuit. Not to mention the time it takes to gain the trust of their audiences. "As the fastest growing social media platform, TikTok has the responsibility to implement measures to detect and stop illegal practices, such as the misuse of their content creators' names and likenesses," the attorneys continued. It was also claimed that the alleged videos violated Frankel's right to privacy and caused significant financial harm to her business. "These practices deceive and harm consumers, in addition to causing damage to her individual business and reputation." "Our goal is to hold TikTok accountable and ensure that they take the necessary steps to prevent this from happening again," the attorneys concluded in a joint statement. TikTok, the popular social media platform, stated that it has strict policies in place to "protect people's hard-earned intellectual property and keep misleading content off of TikTok." Bethenny Frankel Personal Life From 1996 to 1997, Frankel was married to entertainment executive Peter Sussman. She married pharmaceutical sales executive Jason Hoppy in March 2010. Bryn is their only child. Frankel filed for divorce in January 2013 after the couple separated in December 2012. A custody agreement was reached in June 2014, and a financial settlement was reached in July 2016. The divorce of Frankel and Hoppy was finalized in January 2021. She is married to Paul Bernon, a film producer. Frankel has a severe fish allergy and was hospitalized in December 2018 after eating fish-containing soup. She has since advocated for airlines to stop serving fish, claiming that the presence of cooked seafood in an enclosed commercial airline jet poses a risk to passengers with fish allergies. [GN] TIMESHARE HELP: Perrong TCPA Suit Transferred to E.D. Missouri -------------------------------------------------------------- The case styled as Andrew Perrong, individually and on behalf of all others similarly situated v. Timeshare Help Source, LLC, Dan Human, Eduardo Balderas, Case No. 2:22-cv-01085 was transferred from the U.S. District Court for the Eastern District of Pennsylvania, to the U.S. District Court for the Eastern District of Missouri on Oct. 5, 2022. The District Court Clerk assigned Case No. 4:22-cv-01064-RWS to the proceeding. The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Timeshare Help Source -- https://www.timesharehelpsource.com/ -- is one of the leading timeshare exit sources for owners to get the help and information they deserve.[BN] The Plaintiff is represented by: Anthony Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln St., Suite 2400 Hingham, MA 02043 Phone: (615) 485-0018 Email: anthony@paronichlaw.com - and - Jeremy C. Jackson, Esq. BOWER LAW ASSOCIATES, PLLC 403 South Allen Street, Suite 210 State College, PA 16801 Phone: (814) 234-2626 Fax: (814) 237-8700 Email: jjackson@bower-law.com The Defendants are represented by: Arthur D Goldman, Esq. LAW OFFICES OF ARTHUR GOLDMAN LLC 1800 E Lancaster Ave Suite M PO BOX 115 Paoli, PA 19301 Email: arthurdgoldman@hotmail.com TOP HOPS PEARL: Dawkins Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Top Hops Pearl, Inc. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. Top Hops Pearl, Inc., Case No. 1:22-cv-05916 (E.D.N.Y., Oct. 3, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Top Hops -- https://www.tophops.com/ -- is a unique beer obsessed hybrid, a tasting bar meets craft & import bottle shop meets classroom.[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 TRIBESMEN GENERAL: Does Not Properly Pay Laborers, Charicando Says ------------------------------------------------------------------ SEGUNDO CHARICANDO, LUIS MARIO CHAVEZ HUANGA, LUIS BERMEO, and ADOLFO DAQUILEMAN, individually and on behalf of all others similarly situated, Plaintiffs v. TRIBESMEN GENERAL CONTRACTING, INC. and TRIBESMEN GROUP INC. and ENDA LALLY, as an individual, Defendants, Case No. 1:22-cv-05920 (E.D.N.Y., Oct. 4, 2022) seeks to recover damages for Defendants' egregious violations of the Fair Labor Standards Act and the New York Labor Law arising from Plaintiff's employment with the Defendants. The Plaintiffs allege that the Defendants' failed to pay overtime wages and wages for hours worked; violates frequency of pay; violates the wage statement requirements; and violates the notice and recordkeeping requirements under the state and federal laws. Plaintiffs Charicando, Huanga, and Daquileman were employed by the Defendants as carpenters while performing related miscellaneous duties from December 2018 until September 2022, from March 2018 until September 2022, and from July 2021 until August 2022, respectively. Plaintiff Bermeo was employed by the Defendants as a taper, laborer and helper while performing related miscellaneous duties from June 2020 until September 2022. Tribesmen General Contracting, Inc. is a contractor based in New York City.[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 Telephone: (718) 263-9591 TURTLEFTPIERCE: Peoples Sues to Recover Unpaid Wages ---------------------------------------------------- Lauren Peoples, for herself and on behalf of those similarly situated v. TURTLEFTPIERCE, LLC, a Florida Limited Liability Company, d/b/a THIRSTY TURTLE SEAGRILL, PANHANDLERS, INC., a Florida Profit Corporation, d/b/a THIRSTY TURTLE SEAGRILL, TURTLE SPORT, INC., a Florida Profit Corporation, d/b/a THIRSTY TURTLE SEAGRILL, TURTLE PARTNERS, LLC, a Florida Limited Liability Company, d/b/a THIRSTY TURTLE SEAGRILL, Case No. 2:22-cv-14345-XXXX (S.D. Fla., Oct. 4, 2022), is brought pursuant to the Fair Labor Standards Act, to obtain declaratory relief, a judgment against the Defendants as to liability, recover unpaid wages, liquidated damages, and reasonable attorneys' fees and costs. The Defendants paid the Plaintiff the tipped minimum wage rather than the regular minimum wage for all hours worked. The Defendants did not permit the Plaintiff to retain all of her tips. Instead, the Defendants required the Plaintiff to pay a portion of her tips to salaried managers working on her shifts. The Defendants also maintained policy pursuant to which they paid their servers and bartenders overtime only for hours worked over 80 in a two-week period. The Defendants did not calculate overtime on a per workweek basis, as required by the FLSA. The Plaintiff and those similarly situated worked over forty hours in a single workweek on multiple occasions in the three years before this lawsuit was filed. However, due to the Defendants' policies and practices, as described above, Plaintiff and those similarly situated were not paid overtime premiums for all hours over forty worked in a single workweek, says the complaint. The Plaintiff was hired by the Defendants to work as a non-exempt hourly-paid server and bartender in December 2021. The Defendants are enterprises engaged in the hospitality industry, and specifically in the operation of restaurants.[BN] The Plaintiff is represented by: Angel Murthy, Esq. MORGAN & MORGAN P A 8151 Peters Rd., Suite 4000 Plantation FL 33324 Phone: (954) 327-5369 Facsimile: (954) 327-3016 Email: amurthy@forthepeople.com TXFM INC: Hale Suit Transferred to N.D. Texas --------------------------------------------- The case styled as Shane Hale, individually and on behalf of others similarly situated, Petitioner v. TXFM, Inc., Respondent, Case No. 4:21-cv-00877 was transferred from the U.S. District Court for the Eastern District of Texas, to the U.S. District Court for the Northern District of Texas on Oct. 4, 2022. The District Court Clerk assigned Case No. 3:22-mc-00076-M to the proceeding. The nature of suit is stated as Motion to Compel. TXFM -- http://www.txfm.ie/-- (formerly Phantom 105.2) was a Dublin based radio station, founded in 1997 as a pirate radio station.[BN] The Plaintiff is represented by: Jacob U. Ginsburg, Esq. KIMMEL & SILVERMAN, P.C. 30 E. Butler Ave. Ambler, PA 19002 Phone: (267) 468-5374 Email: jginsburg@creditlaw.com U-HAUL CO: Bid to Dismiss Appeal as Moot in Ferrell Suit Granted ---------------------------------------------------------------- In the lawsuit styled IN RE: U-HAUL CO. OF WEST VIRGINIA, Debtor. AMANDA FERRELL, et al., Appellants v. U-HAUL CO. OF WEST VIRGINIA, Appellee, Case No. 2:21-cv-00670 (S.D.W. Va.), Judge Irene C. Berger of the U.S. District Court for the Southern District of West Virginia, Charleston Division, grants the Appellee's Motion to Dismiss Appeal as Moot. The Court has reviewed the Appellee's Motion to Dismiss Appeal as Moot, the Memorandum in Support of Motion to Dismiss Appeal, and U-Haul International, Inc.'s ("UHI") Joinder to Appellant U-Haul Co. of West Virginia's Motion to Dismiss Appeal, wherein the Appellee, joined by UHI, seeks dismissal of the Appellants' appeal under the doctrine of equitable mootness. The Court has also reviewed the Appellants' Response to Motions to Dismiss Appeal as Moot, the Reply of U-Haul Co. of West Virginia in Support of Motion to Dismiss Appeal, and UHI's Joinder to Reply of U-Haul Co. of West Virginia in Support of Motion to Dismiss Appeal. The motion to dismiss and the underlying appeal stem from a proceeding in the Bankruptcy Court concluding with a Memorandum Opinion and Order issued on Dec. 10, 2021, barring the Appellants' claim, and the subsequent Order Confirming Second Amended Plan of Reorganization, Dated August 23, 2021. The Debtor, U-Haul Co. of West Virginia, Inc., operates rental centers throughout West Virginia and contracts with independent U-Haul Dealers. The company rents equipment, leases and manages storage facilities, and sells related products. U-Haul International, Inc. ("UHI") is the Debtor's sole shareholder. On June 16, 2021, the Debtor filed a voluntary bankruptcy petition under Chapter 11 of Title 11 of the United States Code. UHI filed a proof of claim in excess of $120 million. The Appellants, Amanda Ferrell, John Stigall, Misty Evans, and Certified Class of Claimants (collectively, the "Ferrell Class"), were customers of the Debtor, who originally filed a Class Action Complaint against the Debtor in Kanawha County, West Virginia, in 2011. On Aug. 23, 2021, the Debtor filed its Plan providing for the auction sale of the equity in the debtor to the highest bidder. UHI made a bid of $2.5 million and no other parties made a higher bid. Under the Plan, the UHI payment is the sole source of funding for most payments to creditors. Additionally, pursuant to the Plan, UHI agreed to release its unsecured claim of $120,563,962 against the debtor. The Ferrell Class, due to purported technical challenges by attorneys, submitted its proof of claim after the established deadline. The claim alleged fraud through improper concealment and charging of fees to customers. The Ferrell Class claim asserted actual damages of $644,566 and statutory damages of $53,353,400 based upon 266,767 transactions allegedly involving fraudulent misrepresentations under the West Virginia Consumer Credit and Protection Act. The Debtor and UHI objected to the Ferrell Class Claim as untimely. With the Debtor and UHI's objection pending, the Ferrell Class submitted an objection to the proposed Plan. After briefing and hearings, on Dec. 10, 2021, the Bankruptcy Court entered its Memorandum Opinion and Order denying the Ferrell Class motion to enlarge the time to file its proof of claim and denying its standing as a party in interest. Therefore, the Ferrell Class was barred from the ultimate confirmation hearing and its objection to the Plan was disallowed. On Dec. 17, 2021, the Bankruptcy Court held a confirmation hearing on the Second Amended Plan of Reorganization. On Dec. 21, 2022, the Bankruptcy Court issued its Order Confirming Second Amended Plan of Reorganization, Dated August 23, 2021. On Dec. 22, 2022, the Debtor and UHI commenced the $2.5 million payment transfer, cancellation of existing stock, and the issuance of new stock. The Appellants did not seek a stay of the Bankruptcy Court's orders. However, the Appellants filed a Notice of Appeal and Statement of Election on Dec. 24, 2021. Beginning on Jan. 4, 2022, and concluding on Jan. 24, 2022, the Debtor commenced and completed payments to 108 creditors. The Appellants' Brief raised three issues on appeal, arguing that the Bankruptcy Court (1) abused its discretion in applying the excusable neglect standard when it barred the Appellant's proof of claim; (2) erred by finding that the Ferrell Class was not a party in interest and therefore lacked standing to object to the Plan; and (3) erred by confirming the Second Amended Plan which released their alter ego claims against UHI. Prior to filing its responsive brief, the Appellees moved to dismiss the complaint as equitably moot. In response, the Appellants argued against a finding of equitable mootness, argued for a full review on the merits, and asserted that the Court could appropriately fashion equitable relief to avoid disrupting the success of the Plan. The Appellees argue that the factors support dismissal of the appeal under the doctrine. They argue that the Appellants never sought a stay pending appeal, that the Plan was substantially consummated, that the requested relief would undermine the success of the approved Plan, and that the requested relief on appeal would unfairly impact third-party interests. The Appellants do not contest their failure to seek a stay but argue that alone is insufficient to justify a finding of mootness. Further, the Appellees argue that the Court can fashion appropriate equitable relief that would not undermine the Plan or negatively impact third parties. Finally, they argue that while the Plan certainly was substantially completed, the completion was essentially a tactical maneuver used to undermine the ability to appeal the Plan, and that the equities favor a decision on the merits. While it is true that termination of the appeal as equitably moot is a harsh remedy, and decisions on the merits are typically preferred, given the nature of the Plan, and the relevant factors, the equities weigh in favor of a finding of equitable mootness, Judge Berger holds. First, while the Appellants are correct that the failure to seek a stay is not dispositive, it is certainly a notable factor, which allowed for the Plan to take effect expeditiously and thus make it more difficult to unwind. Not only did they not seek a stay in the Bankruptcy Court, but the Appellants did not seek any other emergency relief to freeze the Plan to facilitate raising their concerns. This failure, Judge Berger opines, while not dispositive, weighs heavily against the Appellants because they failed to utilize a readily accessible tool which could have allowed for consideration of the merits prior to, or soon after, the consummation of the Plan. Additionally, Judge Berger notes, the Plan has been substantially consummated. Substantial consummation occurs following: (A) transfer of all or substantially all of the property proposed by the plan to be transferred; (B) assumption by the debtor or by the successor to the debtor under the plan of the business or of the management of all or substantially all of the property dealt with by the plan; and (C) commencement of distribution under the plan. Here, it is undisputed that these steps have occurred. Shortly after the Plan was approved, the property proposed by the Plan was fully transferred, old stock was terminated, new stocks were distributed, and creditors were paid. While the Appellants argue that the pace with which this was carried out was essentially a bad faith effort to moot the appeal, the Appellees correctly note that the approved Plan necessitated this expeditious consummation, requiring that the Plan would be consummated and carried out on the effective date of the Plan or as soon thereafter as practicable. The Appellants may certainly view this provision as objectionable, but the Appellees' compliance with the court approved conditions of the Plan does not constitute improper behavior, Judge Berger holds. Rather, ignoring the obligations of the approved Plan would have been improper. Further, as noted, the Appellants made no effort to halt the consummation, or achieve expeditious review of their objections in the immediate aftermath of the Bankruptcy Court's opinion(s). This failure undermines the persuasiveness of complaints of unfairness from the rapid consummation of the Plan. Third, the relief requested would unquestionably undermine the success of the approved Plan, Judge Berger points out. While UHI's conditions for approval of the Plan had significant and detailed contingencies that essentially made their agreement conditional on the Plan going into effect precisely as drafted, the Bankruptcy Court considered this and approved the Plan. To now grant relief as requested, even the more limited equitable relief as proposed, would alter essential components of the agreement approved by the Bankruptcy Court. UHI's position that its support for the Plan being adopted, as written, is not new. Rather, this condition has been explicitly a part of the consideration since UHI's entry into the proceedings. Further, the lack of other bids, during the Bankruptcy process, highlights the significant consequences of unraveling the Plan in its entirety. This again weighs in favor of equitable mootness, as the parties made clear to the Bankruptcy Court and again to the Court that alterations to the Plan would threaten the Plan itself, Judge Berger holds. The Court acknowledges that the agreement, at issue, was stringent in that acceptance by UHI was conditioned upon there being no modification adverse to the interests, rights or treatment of UHI. However, this particular factor of the equitable mootness doctrine simply asks whether the adopted Plan would be undermined by the relief requested. Based on the record before the Court, the answer to that question is undoubtedly yes. Finally, the relief requested would negatively impact the interests of third parties, Judge Berger says. Creditors were fully paid, and the Debtor continued to operate in this new financial reality. Therefore, by placing the full Plan at risk, the requested relief would result in substantial collateral consequences for creditors, who would potentially face claw backs, and for other third parties who have since engaged with the Debtor. Thus, third parties, who are not before the Court, would face unknown harms, costs, disruptions, and even potential litigation, because of the disruption to the Plan. This foreseeable hardship appears to be precisely the type of hardship to third parties, which the equitable mootness doctrine seeks to avoid. Therefore, because each individual factor under Mac Panel Co. v. Virginia Panel Corp., 283 F.3d 622, 625 (4th Cir. 2002) and a totality of the circumstances favor a finding of equitable mootness, the Court concludes that application of the doctrine is appropriate. Of course, this conclusion is not reached hastily or lightly, given the harsh consequences. However, because the doctrine appears geared to preserve approved and consummated plans under precisely the conditions presented here, its application is warranted. Accordingly, the Appellees' motion should be granted, and the appeal should be terminated as equitably moot. Wherefore, after thorough review and careful consideration, the Court orders that the Motion to Dismiss Appeal as Moot be granted, and, accordingly, that the Notice of Appeal and Statement of Election be terminated as moot and this matter be removed from the docket of the Court. The Court directs the Clerk to send a copy of this Order to counsel of record and to any unrepresented party. A full-text copy of the Court's Memorandum Opinion and Order dated Sept. 26, 2022, is available at https://tinyurl.com/33ycnu9v from Leagle.com. U-HAUL INTERNATIONAL: Cartwright Files Suit in D. Arizona --------------------------------------------------------- A class action lawsuit has been filed against U-Haul International Incorporated. The case is styled as Christine Cartwright, Cheyenne Emery Hart, on behalf of themselves and all others similarly situated v. U-Haul International Incorporated, Case No. 2:22-cv-01693-ESW (D. Ariz., Oct. 5, 2022). The nature of suit is stated Other Personal Property for Breach of Contract. U-Haul International, Inc. -- https://www.uhaul.com/ -- provides auto rental services. The Company rents trucks, trailers, towing, moving containers, dollies, and furniture pads, as well as offers climate control, wine, and vehicle storage facilities.[BN] The Plaintiff is represented by: Courtney E. Maccarone, Esq. LEVI & KORSINSKY LLP - NEW YORK, NY 30 Broad St., 24th Fl. New York, NY 10004 Phone: (212) 363-7500 Fax: (212) 363-7171 - and - Jennifer Cummins Rethemeier, Esq. Paul Lincoln Stoller, Esq. DALIMONTE RUEB STOLLER LLP - PHOENIX, AZ 2425 E Camelback Rd., Ste. 500 Phoenix, AZ 85016 Phone: (602) 888-2807 Email: jennifer.rethemeier@drlawllp.com Paul@drlawllp.com - and - Mark S Reich, Esq. LEVI & KORSINSKY LLP - NEW YORK, NY 30 Broad St., 24th Fl. New York, NY 10004 Phone: (212) 363-7500 Fax: (212) 363-7171 VANGUARD EQUITIES: Fabricant Sues Over Unsolicited Text Messages ---------------------------------------------------------------- Terry Fabricant, individually and on behalf of all others similarly situated v. VANGUARD EQUITIES, LLC; DOES 1-10 Inclusive, Case No. 2:22-cv-07186 (C.D. Cal., Oct. 3, 2022), is for damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of the Defendant, in negligently contacting the Plaintiff on the Plaintiff's cellular telephone, in violation of the Telephone Consumer Protection Act and related regulations, specifically the National Do-Not-Call provisions, thereby invading Plaintiff's privacy. The Defendant began to use the Plaintiff's cellular telephones for the purpose of sending Plaintiff spam advertisements and/or promotional offers, via text messages. The Defendant did not have Plaintiff's prior express consent. Based on the content and format of these text messages, the Plaintiff alleges that they were sent via the Defendant's SMS Blasting Platform, i.e., an "automatic telephone dialing system," ("ATDS"). The automated text messaging system used by the Defendant to send the text messages has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. The Plaintiff was never a customer of the Defendant and never provided his cellular telephone number to the Defendant or its lead vendor for any reason whatsoever. Accordingly, the Defendant and their agents never received the Plaintiff's prior express consent to receive unsolicited text messages. Further, the Plaintiff's cellular telephone number had been on the National Do-Not-Call Registry well over 30 days prior to the Defendant's initial text message. These text messages by the Defendant, or its agents, violated the TCPA, says the complaint. The Plaintiff is an individual residing in California. The Defendant conducted business in the State of California and in the County of Los Angeles.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21031 Ventura Blvd., Suite 340 Woodland Hills, CA 91364 Phone: 323-306-4234 Fax: 866-633-0228 Email: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com VEORIDE INC: Matos Sues Over Failure to Pay Weekly Wages -------------------------------------------------------- Ka'Sheem Matos, on behalf of himself and all others similarly situated v. VeoRide Inc., Case No. 1:22-cv-08461 (S.D.N.Y., Oct. 4, 2022), is brought against the Defendants for the Defendant's failure to pay weekly wages. The Plaintiff suffered actual and acute injuries as a result of the Defendant's failure to pay weekly wages. The timely payment of earned wages were and are crucial to the Plaintiff's ability to pay day to day and monthly expenses, especially due to the New York area's high cost of living. The Defendant's conduct in paying the Plaintiff's wages late throughout his employment resulted in him having to pay his bills late on at least two occasions. The Defendant's late wage payments also deprived the Plaintiff of the time value of their earned money, resulting in tangible financial loss calculated as interest and in other amounts; and loss in the form of the negative impact on their ability to save, invest, and plan for the future. The Defendant reaped large fees from its customers as a direct result of its Manual Workers' labor, taking in millions in revenue, while unlawfully withholding from and paying late its employees who are least able to weather these unjust delays, says the complaint. The Plaintiff started working full-time for the Defendant in July 2021 until May 2022 as a field technician and an assistant operations supervisor at their Bronx, New York location. VeoRide describes itself "micromobility" company which offers environmentally-friendly electric scooters and bicycles.[BN] The Plaintiff is represented by: Mohammed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 675 Third Avenue, Suite 1810 Phone: (718) 669-0714 Email: mgangat@gangatllc.com VIRGINIA: Court Refuses to Dismiss 3rd Amended Suit in Doe v. SVJC ------------------------------------------------------------------ In the lawsuit styled JOHN DOE 5, JOHN DOE 6, and JOHN DOE 7, by and through their next friend, NELSON DELORES LOPEZ, on behalf of themselves and all persons similarly situated, Plaintiffs v. SHENANDOAH VALLEY JUVENILE CENTER COMMISSION, Defendant, Case No. 5:17-cv-00097 (W.D. Va.), Judge Elizabeth K. Dillon of the U.S. District Court for the Western District of Virginia, Harrisonburg Division, issued a Memorandum Opinion: (a) denying the Defendant's motion to dismiss the Plaintiffs' third amended complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure; and (b) taking under advisement the Defendant's motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), pending an evidentiary hearing to further consider the standing issue. Plaintiffs John Does 5, 6, and 7 are immigrant minors detained at the Shenandoah Valley Juvenile Center (SVJC), which is owned and operated by the Shenandoah Valley Juvenile Center Commission. The Does represent a class of similarly situated detainees, each deemed an "Unaccompanied Alien Child" (UAC), who allege SVJC has denied them constitutionally adequate health care in violation of 42 U.S.C. Section 1983. SVJC is a secure residential detention facility in Staunton, Virginia, owned and operated by the Commission. The Commission is a public body pursuant to Virginia Code Section 16.1-315. SVJC houses both noncitizen immigrant minors deemed UACs and citizen youth between the ages of ten and seventeen. Minors deemed UACs are transferred to SVJC by the Office of Refugee Resettlement (ORR) of the U.S. Department of Health and Human Services when UACs behavior, primarily aggression and self-harm, appear to make them a danger to themselves or others or suggest that they are a flight risk. ORR and SVJC have a cooperative agreement that outlines SVJC's responsibilities as a "care provider." These responsibilities include, among other things, physical care, educational services, necessary mental health interventions, at least one individual counseling session per week, and group counseling sessions at least twice a week. The Plaintiffs are immigrant youths, who have been deemed UACs by ORR. At the time the third amended complaint was filed, the Does were detained at SVJC. The Does represent a class comprised of UACs currently detained at SVJC, as well as UACs, who may be detained there in the future. The Plaintiffs allege that SVJC staff members are unable to recognize and properly react to the obvious needs of youth, who have experienced known, serious trauma. SVJC allegedly "takes a 'one size fits all' approach" to mental health treatment rather than tailoring treatment to an individual child's needs. SVJC follows this approach despite youth who "engage, have engaged, or have threatened to engage in self-harm." Additionally, the Plaintiffs allege regularly occurring physical assault by SVJC staff in response to "minor behavioral incidents." They allege these "applications of force add to the severe psychological trauma" the youth already suffer. Further, the Plaintiffs allege SVJC has the "policy or practice of confining immigrant detainees to their rooms for lengthy periods of time and/or using handcuffs to restrain them." As punishment, SVJC allegedly strip the youth of all their personal items, including blankets, overnight. In conclusion, the Plaintiffs plead that isolating, punishing, and failing to provide clearly-needed mental health treatment to children, who are severely traumatized or may be self-harming, is extremely damaging to their well-being and violates well-established professional standards, and they have been harmed by the lack of appropriate, trauma-informed mental health care treatment. Thus, the Commission has violated their Fifth and Fourteenth Amendment rights to adequate medical care. The Plaintiffs seek to proceed in this litigation by and through their next friend, Nelson Delores Lopez. Lopez is an adult resident of Virginia, who has met with John Does 5-7, and they consent to him serving as their next friend. Further, the Plaintiffs contend Lopez is well-suited to serve in this role, due to his status as a law student intern and past experience as a "community advocate" and paralegal at an immigration legal services organization. As a paralegal, Lopez frequently visited detained immigrant adults and children to educate them about their legal rights and assist them in navigating the immigration legal system. Preceding the complaint and this motion, the Plaintiffs, through other named representatives, filed a complaint asserting claims of 1) excessive force, 2) excessive conditions of confinement, and 3) inadequate mental health treatment against the Commission. On Dec. 13, 2018, the Court granted summary judgment in favor of the Commission on the inadequate mental health treatment claim, finding there was no dispute of material fact when applying the deliberate indifference standard to the record (Doe by and through Lopez v. Shenandoah Valley Juv. Ctr. Comm'n, 355 F.Supp.3d 454, 468-69 (W.D. Va. 2018)). Further, the Court dismissed the excessive force and conditions of confinement claims with prejudice on July 23, 2019. The Plaintiffs appealed the ruling on the mental health treatment claim. In Doe 4 by and through Lopez v. Shenandoah Valley Juv. Ctr. Comm'n, the Fourth Circuit reversed this Court, holding that the proper standard to apply to the minors' mental health treatment claim is the professional judgment standard, not the deliberate indifference standard, 985 F.3d 327, 338-44 (4th Cir. 2021). The Plaintiffs filed their third amended complaint, again claiming the Commission unconstitutionally denied them of adequate mental health treatment in violation of Section 1983. The Defendant filed a motion to dismiss, which was fully briefed and argued. A. Motion to Dismiss for Lack of Standing The Defendant argues that the Plaintiffs' next friend, Nelson Lopez, cannot proceed on the Plaintiffs' behalf because there is no "significant relationship" between them. The Defendant contends that Lopez has an "interest in the case and past experience with detainees" but has no relationship at all with these Plaintiffs. The Plaintiffs argue a significant relationship is present because Lopez met with the Plaintiffs in person and secured their consent to his participation in the case as their representative. Further, Lopez is not pursuing vindication of an abstract legal construct, rather, he has a long history of working in support of immigrants' rights. Looking to the third amended complaint, Judge Dillon notes that it is unclear the extent of Lopez's relationship with the Plaintiffs. Have the parties met once or on several occasions? For how long? In their briefing, the Plaintiffs state that Lopez has assisted detainees at SVJC. What other relationships do the Plaintiffs have? Further legal questions also exist, Judge Dillon says. In the class action context, must a next friend have a significant relationship with all the named plaintiffs? Or must each individual named plaintiff have their own next friend? Considering the Plaintiffs' unique status as detained unaccompanied noncitizen minors, there is a need for an evidentiary hearing to determine the extent of Lopez's relationship with the Plaintiffs and their other relationships, if any, before the Court answers the question of Lopez's standing to proceed as the Plaintiffs' next friend. B. Motion to Dismiss for Failure to State a Claim The Plaintiffs bring their third amended complaint pursuant to 42 U.S.C. Section 1983, which allows individuals to sue parties acting under the color of state law for civil rights violations. To properly allege a Section 1983 claim against the Defendant, the Plaintiffs must plead facts showing that the Defendant had a "policy" or "custom" that caused them to receive mental health treatment that substantially departed from accepted professional judgment. To proceed under Section 1983, the Plaintiffs must first plead sufficient facts to show they have been deprived of their constitutional rights. The Defendant argues that the Plaintiffs have not sufficiently alleged that their constitutional right to adequate mental health treatment has been denied by the Defendant. That is, the Plaintiffs have not pleaded sufficient facts to show that the Defendant "substantially departed from accepted professional judgment." The Court disagrees. The Plaintiffs allege that they have been harmed by the lack of provision of appropriate, trauma-informed mental health care treatment. The fact that SVJC provides the Plaintiffs with mental health care, albeit through a "one size fits all" approach, shows that the Plaintiffs do have mental health care needs, Judge Dillon points out. This is corroborated by allegations that Does 5, 6, and 7 have manifested mental illness. The Plaintiffs further allege that Doe 6 and Doe 7 have been subjected to physical assaults by staff, and Doe 7 witnessed staff assault another class member. The Plaintiffs also complain of aggravating effects upon their mental health due to excessive room confinement. The Defendant contends that allegations of excessive force and room confinement are not relevant, but the Fourth Circuit held that these forms of punishment also tie into the Appellants' claim of inadequate health care (Doe 4, 985 F.3d at 331). When children "act out due to untreated trauma, SVJC has shown a pattern and practice of quickly resorting to these harsh and punitive measures, retraumatizing these children and worsening their underlying conditions." For these reasons, Judge Dillon finds that the Plaintiffs have plausibly alleged the denial of their constitutional right to adequate mental health treatment by the Defendant. The Plaintiffs plead, and primarily argued at the hearing on this motion, that SVJC employs a "one-size-fits-all" approach to mental health treatment that apparently focuses on behavior management and medicine management rather than tailoring treatment to an individual detainee's needs. The Plaintiffs' mental health issues have been recognized and acknowledged in this litigation. Despite this, it is alleged that SVJC has a policy or practice of denying Does and class members access to appropriate mental health treatment and counseling with licensed mental health professionals, in violation of well-established professional standards, and has a policy or practice of confining the immigrant detainees to their rooms for lengthy periods of time and/or using handcuffs to restrain them. The alleged duration and frequency of these practices suggest that they can be attributed to the Defendant, Judge Dillon holds, citing Doe v. Shenandoah Valley Juvenile Ctr. Comm'n, 355 F.Supp.3d 454, 469-71 (W.D. Va. 2018). While the details are somewhat sparse and, at times, contradictory, Judge Dillon finds the Plaintiffs' allegations are sufficient to plausibly allege an unconstitutional policy or custom. For the reasons stated, the Court will deny the Defendant's motion to dismiss for failure to state a claim and take the Defendant's motion to dismiss for lack of subject matter jurisdiction under advisement pending an evidentiary hearing regarding Lopez's standing as next friend. The Court will issue an appropriate order. A full-text copy of the Court's Memorandum Opinion dated Sept. 26, 2022, is available at https://tinyurl.com/57n33a7m from Leagle.com. VIVIANT CARE: Butler Suit Alleges Failure to Pay Proper Wages ------------------------------------------------------------- Nancy Butler, individually and on behalf of all others similarly situated, Plaintiff v. Viviant Care Management LLC; Glen Oaks Healthcare LLC, d/b/a "Viviant Healthcare of Shelbyville;" Boulevard Terrace Healthcare LLC, d/b/a "Viviant Healthcare of Murfreesboro;" Camb OP LLC, d/b/a "Viviant Healthcare of Bristol;" and John Doe Corporations I-X, Defendants, Case No. 4:22-cv-00047 (E.D. Tenn., Oct. 4, 2022) arises under the Fair Labor Standards Act for Defendants' failure to pay Plaintiff and other similarly-situated employees all earned minimum and overtime wages. The Plaintiff brings this action on behalf of herself and all similarly-situated current and former hourly nurses who were required to perform work for Defendants "off-the-clock," had their time records manipulated (i.e. "shaved") by Defendants, were paid an improper overtime rate, and therefore were not compensated for all earned minimum and overtime wages. Ms. Butler was employed as a nurse by Defendants at their facility located in Shelbyville, Tennessee from approximately December 10, 2019 through the present. Viviant Care Management LLC owns and operates skilled nursing facilities in Tennessee.[BN] The Plaintiff is represented by: Anne Bennett Hunter, Esq. HUNTER LAW FIRM 101 Creekside Crossing, Suite 1700-307 Brentwood, TN 37027 Telephone: (615) 592-2977 E-mail: anne@hunteremploymentlaw.com - and - James L. Simon, Esq. SIMON LAW CO. 5000 Rockside Road Liberty Plaza Building-Suite 520 Independence, OH 44131 Telephone: (216) 816-8696 E-mail: james@simonsaypay.com VOLKSWAGEN GROUP: Faces Class Suit Over Defective Audi Water Pumps ------------------------------------------------------------------ David A. Wood, writing for CarComplaints.com, reports that Audi water pump problems have caused a class action lawsuit that alleges Audi models are equipped with 3.0T engines that overheat and fail. The Audi water pump class action alleges these 3.0T vehicles contain the defective pumps. 2013-2022 Audi A6 2013-2022 Audi A7 2013-2022 Audi A8 2013-2022 Audi S4 2013-2022 Audi S5 2013-2022 Audi SQ5 2013-2022 Audi Q5 2013-2022 Audi Q7 Some Audi and Volkswagen owners may already be familiar with a water pump class action lawsuit and the settlement that was preliminarily approved. The final approval hearing for the settlement is October 19, however, that water pump settlement is separate from this most recent case. California plaintiff Andrew Fiscina purchased a certified pre-owned 2016 Audi SQ5 in December 2020, but the plaintiff says he noticed coolant leaking from the engine compartment in October 2021. According to the water pump class action, the plaintiff paid $825.78 of his own money to repair the coolant leak. Massachusetts plaintiff Kyle Duarte purchased a used 2018 Audi S4 in 2019, but in November 2020 the thermometer engine light came on. This was at a time when the Audi was still under warranty. The Audi dealer ran a diagnostic check due to the engine light and allegedly told the plaintiff Audi S4 models burn through coolant and his coolant level was low. Technicians added coolant to his vehicle, turned the engine light off and returned the vehicle to the plaintiff. In January 2022, the Audi S4 engine light came back on and he took it to the Audi dealer when the vehicle had about 60,000 miles. The Audi service department allegedly told the plaintiff the same as the first time and repeated the same steps. Then in June 2022, his Audi S4 overheated and the same engine light came on. The plaintiff says he is a mechanic and he determined the water pump was the problem. He paid for a new water pump, thermostat and thermoexpansion valve and replaced all three of those parts in his vehicle. The plaintiff says he paid $558.91 for the parts. "Upon information and belief, the Water Pump contains a design and/or manufacturing Defect that causes the bearing contained within the Water Pump to fail which, in turn, causes the bearing seals within the Water Pump to fail and results in a leak of coolant from the Water Pump weep hole into the engine compartment of Class Vehicles." — Audi water pump class action lawsuit Audi Water Pump Class Action Lawsuit Allegations Audi has known about the allegedly defective water pumps since at least November 2018 but has failed to inform consumers about the problems. By concealing the alleged water pump failures, owners are forced to pay for expensive repairs and replacements and are stuck driving vehicles which have allegedly lost their values. Audi occupants and others on the roads are in danger if the alleged water pump problems cause the engines to fail while driving. This will cause a sudden and unexpected slowing or complete stop of the vehicle, possibly at highway speeds. And according to the Audi water pump class action lawsuit, the automaker is not able to adequately fix the problems and the plaintiffs say no formal water pump recall has been issued. Audi customers have also allegedly not been offered reimbursements or free water pump replacements. The water pump class action also alleges any Audi warranty limits are "unconscionable and unenforceable" because Audi allegedly concealed the defects. The Audi water pump class action lawsuit was filed in the U.S. District Court for the District of New Jersey: Fiscina, et al., vs. Volkswagen Group of America, Inc., et al. The plaintiffs are represented by Sauder Schelkopf LLC. [GN] VOLKSWAGEN GROUP: Raposa Sues Over Inoperable Telematics Equipment ------------------------------------------------------------------ Eileen Raposa, on behalf of herself and all others similarly situated v. VOLKSWAGEN GROUP OF AMERICA, INC., a New Jersey corporation, d/b/a AUDI OF AMERICA, INC., AUDI AG, a German corporation, and VOLKSWAGEN AG, a German corporation, Case No. 2:22-cv-05896 (D.N.J., Oct. 5, 2022), is brought on behalf of who purchased or leased any Audi vehicle models and/or Volkswagen vehicle models whose telematics equipment was rendered wholly or partially inoperable when the major wireless carriers phased at "3G beginning" in early 2022, as a result of the Defendants' concealment and omissions. The Class Vehicles' internet enabled features such as roadside emergency safety features were rendered inoperable after the 3G phase out in 2022 due to defendants' use of obsolete telematics equipment they installed in the Class Vehicles. Audi and Volkswagen cars have been sold in the USA since at least the 50s. In or about 2014 Volkswagen began offering its "Car-Net" connected car services. The Car-Net is based on Volkswagen's 3G-only telematic system. According to published reports, Volkswagen's 2014-2019 model years are affected. Audi's are equipped with "Telematics Control Units" ("telematics") connected to the engine control module which are the instruments which connect the Audi to internet service ("Audi Connect"). When 3G became available, Volkswagen installed 3G capable telematics in it vehicles but refused and failed to have the 3G telematics adaptable to the next "generation" of wireless. In the field of mobile connections, a "generation" generally refers to a change in the fundamental nature of the service, non-backwards compatible transmission technology, higher peak bit rates, new frequency bands. Cellular connectivity has characteristic of technology, speed, frequency and spectral capabilities which are constantly being improved upon. The Class Vehicles were factory equipped with 3G only telematics devices but by 2014 3G was already being replaced by 4G LTE. There was no disclosure or even suggestion that Car-Net and/or Audi Connect would be rendered obsolete once 3G was phased out or that the Audi Connect and/or Car-Net features were only temporary or had only a limited life. As to the later model years after 4G became prevalent, the Defendants never disclosed that its equipment was one generation behind the standard! To the contrary, the Defendant marketed the features as a permanent feature of the Class Vehicles. Had the Defendants truthfully disclosed and reported that its telematics for the Class Vehicles were 3G only, consumers would have been less likely to purchase the cars, would have abstained outright or sought substantial discounts and/or upgrades. As a proximate cause of the Defendants' misrepresentations and warrant breaches detailed in this complaint, the Plaintiff and class members purchased Class Vehicles. The Plaintiff and the class members who purchased Class Vehicles did not get the benefit of the bargain they struck. Instead, they received cars whose telematics had planned obsolescence and were therefore of lesser value because the telematics was destined for obsolescence as soon as the models were issued. The cars that Plaintiff and the class members paid for and bargained to receive, while marketed as products with telematics, were of lesser value than as advertised. Accordingly, purchasers of the Cars, including Plaintiff and class members, have suffered and will continue to suffer injury, ascertainable losses of money or property, and monetary and non-monetary damages, including from not receiving the benefit of their bargain in purchasing the Cars. The Defendants' misrepresentations and other conduct in failing to truthfully disclose to prospective buyers that the cars were 3G Only caused Plaintiff and class members substantial injury in the form of price premiums and overpayments for products and diminished resale value and loss of telematics benefits, says the complaint. The Plaintiff is a resident of the State of New York who purchased a 2018 Audi A5 in early-2018 from Audi as a "new vehicle." The Defendants, through various entities, market, distribute, warrants, and sells Volkswagen and Audi-branded automobiles and parts for those automobiles.[BN] The Plaintiff is represented by: Lee Squitieri, Esq. SQUITIERI & FEARON, LLP 305 Broadway, 7th Floor New York, NY 10007 Phone: (212) 421-6492 WINDOWRAMA ENTERPRISES: Dawkins Files ADA Suit in E.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against WindowRama Enterprises, Inc. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. WindowRama Enterprises, Inc., Case No. 1:22-cv-05919 (E.D.N.Y., Oct. 4, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. WindowRama -- https://www.windowrama.com/ -- is a home window and door replacement experts serving New York, New Jersey, and Connecticut.[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 WORLDWIDE FLIGHT: Curtis Sues Over Unlawful Employment Practices ---------------------------------------------------------------- Jacori Curtis, on behalf of himself and all others similarly situated, Plaintiff v. Worldwide Flight Services, Inc., Defendant, Case No. 720458/2022 (N.Y. Sup., Queens Cty., Oct. 4, 2022) arises from the Defendant's alleged violations of the New York State Labor Law, the New York Code of Rules and Regulations, and the New York Wage Theft Prevention Act by failing to pay Plaintiff minimum wage, overtime, and spread of hours compensation, and failing to provide wage notice and statements. Plaintiff Jacori Curtis worked for the Defendant from September 2019 and June 2020, working as a ramp agent at John F. Kennedy Airport in Queens County, New York. Worldwide Flight Services, Inc. is a global operator in cargo handling, operating at 165 airports in 17 different countries.[BN] The Plaintiff is represented by: Mohammed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 675 Third Avenue, Suite 1810 New York, NY 10017 Telephone: (718) 669-0714 E-mail: mgangat@gangatpllc.com ZARBEE'S INC: Phillips-Jones Sues Over False & Misleading Labelling ------------------------------------------------------------------- Kemberly Phillips-Jones, individually and on behalf of all others similarly situated v. Zarbee's, Inc., Case No. 1:22-cv-05470 (N.D. Ill., Oct. 5, 2022), is brought against the Defendants as a result of false and misleading labelling with regards to Zarbee's melatonin products. Many Zarbee's melatonin products are specifically marketed for young children. Each bottle claims to have a specific dose of melatonin per serving. Like millions of other consumers, the Plaintiff bought Zarbee's melatonin for her children and trusted the accuracy of Zarbee's dosing and labelling. To determine how much melatonin is really in Zarbee's, a university mass-spectrometry laboratory tested multiple bottles, including her bottle. The results were alarming—the bottles are unreasonably overdosed. For example, the true amount of melatonin in her bottle was 222% of the claimed amount. Zarbee's Melatonin is unreasonably overdosed and inaccurately labelled. Consumers are being misled and overcharged. By selling a melatonin supplement for sleep (i.e., a supplement that alters brain chemistry), Zarbee's is representing to consumers that its products are accurately dosed and labelled. When a consumer picks up a bottle of Zarbee's Melatonin, they reasonably expect that it actually has the dosage for which Zarbee's designed the recommended serving. No reasonable consumer expects that a melatonin supplement has an unreasonable overdose of melatonin, compared to what it is supposed to have. And specifically, when a bottle of Zarbee's says it has a particular amount of melatonin per serving (e.g., 1 mg), consumers expect this to be accurate. This is especially true for melatonin marketed for children. But the truth is, the dosing is not reasonably accurate. In this way, Zarbee's affirmative representations are misleading to reasonable consumers. Like millions of other consumers, the Plaintiff bought Zarbee's Melatonin and relied on the accuracy of Zarbee's dosing and labelling, says the complaint. The Plaintiff bought a bottle of Zarbee's Children's Sleep with Melatonin Gummies in June or July 2021. Zarbee's is a major U.S. brand of melatonin supplements, sold nationwide at retailers like Walmart, Kroger, and Target.[BN] The Plaintiff is represented by: Jonas Jacobson, Esq. Simon Franzini, Esq. DOVEL & LUNER, LLP 201 Santa Monica Blvd., Suite 600 Santa Monica, CA 90401 Phone: (310) 656-7066 Facsimile: (310) 656-7069 Email: jonas@dovel.com simon@dovel.com [*] 1st Annual Complex Litigation Ethics Conference This Saturday ----------------------------------------------------------------- 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 [*] Canada Competition Bureau Ends Flushable Wipes Investigation ---------------------------------------------------------------- Mia Rabson, writing for The Canadian Press, reports that to flush or not to flush? It is a question Canada's Competition Bureau says it cannot answer. Three years ago, Friends of the Earth Canada and lawyers from Ecojustice filed a grievance with the bureau saying the makers of 20 disposable wipes were falsely advertising the products as safe to flush down the toilet. In February, the Competition Bureau informed Friends in a letter that it was closing its inquiry because it's not clear what it really means to be "flushable." "There are a number of competing guidelines about when a product can be considered to be disposable in municipal sewer systems," the letter reads. Friends CEO Beatrice Olivastri called that "totally unacceptable." The Friends complaint was partly based on a study done at Toronto Metropolitan University, which tested 23 different wipes products marketed as flushable and biodegradable and concluded none of them lived up to the claim. They included baby wipes, wet wipes for older kids and adults, toilet brush cleaning cloths and diaper liners. Olivastri said the Competition Bureau didn't contact any of the organizations or experts cited in the complaint, including the study's authors, or the International Water Services Flushability Group, an association of water utilities and professionals that has developed a standard for what is truly flushable. The complainants say the only other "standard" that exists was created by the makers of the wipes themselves, and those haven't been accepted by any municipalities in Canada or any wastewater professionals anywhere in North America. Citing confidentiality, the bureau won't say what its investigation found, or who was interviewed. Julie Baribeau, a spokeswoman for the Competition Bureau, told The Canadian Press in an email while the investigation has ended, the bureau "does not endorse the representations made about 'flushability' or the tests used to evaluate this feature." Wipes have become the bane of municipal wastewater system operators around the world. Massive blockages made up heavily of flushed wipes that are glued together by cooking fats and other oils put down the drain, have been dubbed "fatbergs" in Britain. In 2019, a "fatberg" the length of a passenger jet weighing more than 90 tonnes backed up sewers in Liverpool. Earlier this year, British media reported that an island the size of two tennis courts and made up mostly of wet wipes was actually changing the course of the Thames River. The National Association of Clean Water Agencies in the U.S. said in 2020 it was costing municipal wastewater systems $441 million a year in extra operating costs for cleanup and clogs because of wipes. The city of Calgary reported getting 7,200 calls to remove blockages from sewers in 2021 and single-use wipes were the biggest culprit. In the United States a number of class-action lawsuits have been filed against wipes makers. Nine days before the Competition Bureau in Canada closed its investigation citing a lack of evidence, a U.S. judge approved a settlement in a case against Kimberly-Clark Corp., brought by the city of Charleston, S.C. Kimberly-Clark did not respond to a request for comment on the Canadian investigation, but in 2019 a spokesman told The Canadian Press the company stood by its claims that its Cottonelle wipes were indeed flushable. Some U.S. states now have laws forcing manufacturers to include labels on all disposable wipes that they are not to be flushed. Olivastri said Innovation Minister François-Philippe Champagne can review the Competition Bureau's decision to suspend its investigation in Canada. But in an emailed statement Champagne's spokesman said the minister will not be asking the bureau to reconsider. "Investigations under the Competition Act are carried out independently by the Competition Bureau," the statement reads. "They hold discretion as to how, or whether, to proceed with a matter based on the evidence before it." The British government may be the first to solve the standards issue. In January the U.K. launched a "call for evidence" seeking policy advice to handle the wet wipe dilemma, including for "mandatory flushability standards" and the possibility of banning certain types of wipes completely. In June, then-environment minister Rebecca Pow told the British House of Commons the response to that call was "huge" and the department was now working its way through the advice. "I say to everybody, 'If you don't need to use a wet wipe, don't. And don't chuck them down the loo," Pow said. [GN] [*] New Class Action Laws in Western Australia Discussed -------------------------------------------------------- William Robinson, Esq., Luke Vincent, Esq., and Corey DiBello, Esq., of Wotton + Kearney, in an article for Lexology, report that on September 1, 2022, new class action laws were passed in Western Australia (WA). The Act will come into operation on a day to be fixed by proclamation. The Civil Procedure (Representative Proceedings) Bill 2021 (WA) introduces a legislative representative proceedings regime in the Supreme Court of Western Australia, which is substantially modelled on Part IVA of the Federal Court of Australia Act 1976 (Cth). Victoria, New South Wales, Queensland and Tasmania also have regimes modelled on the federal scheme. Based on the experiences of the other states, it is likely WA will see a rise in class actions. The Civil Procedure (Representative Proceedings) Bill 2021 (WA) On 1 September 2022, new class action laws were passed in Western Australia (WA). This followed a long and extensive reform process, which included the Law Reform Commission of Western Australia recommending changes back in 2015. The Law Reform Commission found WA's existing representative proceedings at the time to be "outdated, inherently uncertain and silent on many procedural aspects of representative proceedings."1 Following the lead of other states, the WA government introduced its Bill modelled on Part IVA. As WA Attorney General John Quigley said: "A similar regime has been substantially adopted in Victoria in 2000, New South Wales in 2011, Queensland in 2017, and Tasmania in 2019, and has stood the test of time."2 Features of the WA Scheme The proposed WA Scheme is primarily based on Part IVA of the Federal Court class action scheme, with some notable WA-specific elements. Under the WA Scheme, to bring a group proceeding, litigants must satisfy the following threshold elements: a) there must be claims by seven or more persons against the same person b) the claims must arise out of the same, similar or related circumstances, and c) the claims of all those persons must give rise to a substantial common issue of law or fact. It is worth noting the WA Bill has some differences from the federal scheme. These include: - where a representative proceeding is commenced against more than one respondent, the representative party and each group member does not need to have a claim against every respondent - the Court's power is limited to direct that a representative proceeding no longer continue (or be stayed) where the cost of identifying and distributing money to group members would be excessive for the respondent if judgment went against them, and - an additional power is given to the Court, enabling it to remove a representative party where it is in the "interests of justice to do so". The prohibition on lawyers charging a contingency fee has not been removed, unlike Victoria. However, it cannot be said what the future holds in terms of reform as the new regime will be reviewed after five years. It is anticipated that the state government will put forward the Law Reform Commission's recommendation of providing an independent costs expert by the Supreme Court to assist in the assessment of legal costs. Litigation funding The torts of maintenance and champerty (i.e. litigation funding) historically have prohibited an unrelated party from litigation funding or profiting from litigation in which they have no interest. The intention is to protect against interference in the litigation process for gain. The WA Bill abolishes the torts of maintenance and champerty from the day it comes into operation, whilst preserving the rule of law for the cases in which a litigation funding contract is to be treated as contrary to public policy or as otherwise illegal.3 The WA Attorney General accepted that litigation funding will be prevalent in WA class actions by stating " . . . the fact that litigation funding is now a modern reality and has the potential to improve access to justice when the costs to initiate an action are so prohibitive."4 Outlook for class actions in WA The Bill will take effect on a day yet to be set by proclamation. According to the explanatory memorandum,5 this is "to ensure that any necessary practice directions or rules of court can be put in place before the new representative proceeding regime commences operation." This legislative reform aims to make it simpler for plaintiffs in WA to establish and efficiently pursue representative proceedings in the Supreme Court of WA. As WA Attorney General John Quigley said: "This regime will not only enhance access to justice by reducing the cost of court proceedings to the individual and improve the individual's ability to access legal remedies, it will enable court resources to be used more efficiently."6 While the stated aims of the WA scheme are noble, experience from other Australian jurisdictions tells us that efficiency and the cost-effectiveness of group proceedings do not necessarily go hand-in-hand. Proceedings issued under similar regimes have (generally speaking) resulted in drawn-out litigation characterised by disproportionality in damages and costs awards to litigation funders / plaintiff law firms. It remains to be seen whether similar outcomes will follow in WA. The WA Supreme Court will play a vital role in ensuring equity for both sides of class action disputes. Insurers can otherwise expect WA-specific group proceedings over the coming years, which are likely to arise out of industries that dominate WA's resource-driven economy (i.e. mining, oil and gas). Similarly, with the longest coastline in Australia and exposure to climate change and other emerging environmental risks (e.g. fire, rising sea levels and cyclones), insurers, brokers and their corporate clients with exposure to these risks in WA should continue to 'watch this space' as the legislation takes effect. Time will tell whether WA becomes the next class action battleground in Australia. 1 https://www.mediastatements.wa.gov.au/Pages/McGowan/2022/09/New-class-action-scheme-ensures-access-to-justice-for-more-people.aspx 2 Ibid. 3 s 36(2)(b) Civil Procedure (Representative Proceedings) Bill 2021 (WA 4 Civil Procedure (Representative Proceedings) Bill 2021 Second Reading 18 August 2021 Mr J.R. Quigley 5 https://www.parliament.wa.gov.au/publications/tabledpapers.nsf/displaypaper/4110834c436db179735d96cb4825877d000b2dbe/$file/tp-834.pdf 6 https://www.mediastatements.wa.gov.au/Pages/McGowan/2022/09/New-class-action-scheme-ensures-access-to-justice-for-more-people.aspx [GN] [*] NY's City Council Discusses "No More 24 Bill" Amid Class Suits ------------------------------------------------------------------ Edwin Hernandez and Jerry White, writing for World Socialist Web Site, reports that a bill titled No More 24 is currently being discussed by members of New York's City Council, which would ostensibly end a brutal policy that allows home care agencies to force their employees to work consecutive 24-hour shifts and only pay them for 13 hours. Home care aides are caregivers who carry out vital and intimate assistance to elderly and disabled patients in their home residences. This includes helping patients maintain their hygiene and grooming, grocery shopping, cleaning the patient's home and cooking and feeding them. Home health aides also coordinate with other health care professionals and assist patients in taking their medication, checking vital signs, and scheduling doctor's visits. The critical service allows many vulnerable patients to remain in their homes and maintain their independence. Under the current set up sanctioned by a New York State Department of Labor, home health aides are compensated for 13 hours of work for a 24-hour-day. This is justified under the pretense that aides can sleep and eat in their patient's homes and therefore should not be paid for that time. State law mandates an unpaid eight-hour period for sleep and three hours for meals. It goes without saying, that aides are also not paid for the long hours they spend on public transit getting to and back from their patient's homes. The fact this policy has been in place for so long is an indictment of the Democratic Party, which has long controlled most of the political establishment on local and state level. It is also an indictment of the trade union apparatus, particularly in the Service Employees International Union (SEIU) Local 1199, which counts among its members roughly 130,000 home health aides, who are made up largely immigrant and minority women workers. The conditions these workers face was described during testimony at the September 6 hearing on the bill. Home health aide Xin Li said, "I started as a home attendant in 2016. I worked 24-hour workdays for three years, three days per week. Meaning continuously working for 72 hours. My patients are a couple. In the day I had to look after my patients the whole time to prevent them from falling down. I had to give them all my attention and at night I had to turn the bodies of the patients every two hours and change their diapers and had to carry them to the bathroom. It's impossible for me to have five hours of sleep. Now I have insomnia. I had to take pills in order to sleep." The No More 24 bill, proposed by freshman Councilmember Christopher Marte, would limit the workday for home care aides to 12 hours per day and 50 hours per week. But even this minor reform, which would do little to end of the brutal exploitation of these workers—has been adamantly opposed by the 1199 SEIU apparatus. The union has opposed the abolishing of 24-hour shifts. At the hearing in City Hall, the union organized a counter-rally, albeit much smaller, where participants chanted "kill the bill!" Inside City Hall, 1199 SEIU representatives alleged that patients would suffer from lack of care if 24-hour shifts were ended regardless of the toll it takes on workers and how such conditions could endanger patients. The union bureaucrats accept without question the limits set by the profit-driven agencies and both big business parties and reject any struggle against their allies in the Democratic Party for more funding to hire more caregivers and pay them enough so patients can receive round-the-clock care without subjecting workers to such miserable conditions. In a damning indictment of the SEIU bureaucracy itself, union representatives have argued that home health aides needed longer hours because they are paid so little! The practice of forcing workers into consecutive 24-hour shifts while only compensating them for 13 hours per day has allowed private operators to effectively steal an estimated $1 billion dollars per year from workers who barely make more than minimum wage. Two Brooklyn-based home health care agencies, All American Homecare Agency and Crown of Life Care NY LLC, reached settlement agreements in March with New York state and federal prosecutors for $6.9 million dollars over their failure to pay home health aides barely more than minimum wage. The companies were investigated for issuing false reports to Medicaid stating they were following the Wage Parity Act, a New York state law that stipulates that agencies that receive Medicaid funds pay their workers an additional $4 dollars an hour above the minimum wage or provide them with sick time compensation of equivalent value. Last year, two other New York-based home health care agencies, Intergen Health LLC and Amazing Home Care Services reached settlements with the state over allegations of repeatedly violating labor laws. According to the New York Focus publication, the 1199 SEIU has repeatedly intervened to block individual lawsuits to subject all wage theft claims to mandatory arbitration with the employers, which would result in substantially lower payouts to its own members if they were successful in court. "'Employers would not be financially able to sustain many of these claims,' the union concluded. In 2019, in order to stave off "the fragmentation and destabilization of the unionized home care sector," it filed a class action lawsuit on behalf of its entire home care membership that would result in a one-time payout," the Focus article said. The SEIU has had a long incestuous relationship with home health agencies, the nursing home industry and the giant hospital chains. In California, it is part of a "labor management partnership" with Kaiser Permanente, which defend the interests for the health care monopoly against its own members. The SEIU's long-time president and now president emeritus Andrew Stern was notorious for signing sweetheart contracts with nursing home firms in order to get more dues-paying members and then lobbying his Democratic Party friends to protect the nursing home industry. Stern now sits of the board of governors of the arch school privatizer Eli Broad Foundation. As for the Democratic Party, it has repeated defended the home health care agencies and nursing home industry, including in 2020 when state Democrats gave the companies immunity from against civil and criminal lawsuits for patients and workers infected and killed by COVID. Despite repeated surveys that reveal home care aides find their jobs meaningful, low wages and systemic abuse have led to high industry-wide turnover, where 74 percent of New Yorkers in need of a home care aide are unable to retain one. The shortages force many elderly and disabled patients into nursing homes and assisted living facilities whose exorbitant costs are crushing to working class and lower middle class families. At the same time, nursing homes and hospitals continue to be a center for the spread of COVID. Last month's City Hall protests to back the No More 24 bill were organized by the Ain't I a Woman?! advocacy group. The organization, which has spent years lobbying Democratic Party politicians in New York on behalf of home care aides, has chiefly posed the fight as a gender, not a class question. Even if their bill passes, however, it will do little to end the oppression of these workers. The root of their exploitation lies in the backward, profit-driven health care system in the US, which is backed by both big business parties and the corporatist unions. There is no guaranteed, government-funded home health care system as there should be for the elderly and disabled. Federal and state governments provide limited assistance to patients, and this is subject to strict income and asset limits, shifting much of the costs to families who can hardly afford it. With both political parties committed to containing or lowering Medicaid payments, the entire system depends on the super-exploitation of home health aides. To end this requires a struggle by the whole working class against the for-profit health care system, and the transition to a socialist medical system, as part of the fight for organization of economic life based on human need, not profit. Home health aides need to develop independent forms of struggle, rank-and-file committees, to transfer power from the corrupt union apparatuses to workers themselves. These committees must spearhead the fight to unite home health aides with broader sections of health care workers who are also fighting short staffing, the erosions of living standards by inflation, a new surge in COVID and the continued subordination of human life to corporate profit. The World Socialist Website Healthcare Worker's Newsletter is available to assist workers in setting up a committee at your workplace.[GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2022. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***