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/raid1/www/Hosts/bankrupt/CAR_Public/221028.mbx C L A S S A C T I O N R E P O R T E R Friday, October 28, 2022, Vol. 24, No. 210 Headlines 3M COMPANY: PFAS Settlement Approval Hearing Set on March 29, 2023 7-ELEVEN INC: Averts Franchisees' Class Action Suit AAA FREIGHT: Violates Lease Agreements, Owner-Operators Contend ABBOTT LABORATORIES: Formula Milk May Cause Bacterial Infection ACADEMY SPORTS: Bishop Files ADA Suit in S.D. New York ALBUQUERQUE, NM: Silver Suit Stayed Pending Ruling on Dismissal Bid ALLSTATE FIRE: Muehlhausen Files Suit in D. Arizona AMAZON.COM INC: 2nd Cir. Affirms in Part Dismissal of Palmer Suit AMAZON.COM INC: Court Stays Portion of Price Fixing Class Action AMAZON.COM INC: Faces UK Class Action Over "Secretive Algorithm" AMERICAN FAMILY: Permanent Injunction Entered in Hesselink Suit BARBADOS: May Face Class Action From Parents Over School System BARILLA AMERICA: Judge Denies Motion to Dismiss False Ads Suit BAUER HOCKEY: Class of Furloughed Workers Certified in Barber Suit BGDS LLC: Hendricks Files Suit in Cal. Super. Ct. BJ ACQUISITION: Licea Sues Over Secretly Wiretapped Conversations BLOOMINGDALE'S INC: Faces Class Action Over Session Replay Code BOBO INTRIGUING: Sanchez Sues to Recover Unpaid Overtime Premium BOXLIGHT INC: Carrico Files ADA Suit in S.D. New York BP EXPLORATION: Wins Summary Judgment Bid; Bennett Suit Dismissed BROWN UNIVERSITY: Sexual Violence Suit Claims Title IX Violations BUILDINGRITE LLC: Zambrano Sues Over Unpaid Overtime Compensation C & N REPRODUCTIONS: Toro Files ADA Suit in S.D. New York CABELA'S INC: Swaim Files Suit in S.D. New York CAL-MAINE FOODS: Court Junks Bell Class Suit CALIFORNIA COMMUNITY COLLEGES: Martin Files Suit in Cal. Super. Ct. CANADA: Indian Day School Claim Submission Deadline Set Jan. 13 CAPFINANCIAL PARTNERS: Bishop Files ADA Suit in S.D. New York CARAWAY HOME: Licea Files Suit in C.D. California CASPER SLEEP: Byars FCRA Suit Removed to C.D. California CERITY PARTNERS: Bishop Files ADA Suit in S.D. New York CHASE EDWARDS GALLERIES: Senior Files ADA Suit in S.D. New York CHELSEA PIERS: Cruz Files ADA Suit in E.D. New York COINBASE GLOBAL: Faces Class Suit Over Crypto User Accounts Hacking COOPERATIEVE RABOBANK: Dismissal of Claims in Laydon Suit Upheld CSX TRANSPORTATION: Faces $5M Suit Over Coal Facility Explosion DH AND SONS: Li Sues Over Unpaid Minimum, Overtime Compensation EARTHBOUND HOLDING: Lawal Files ADA Suit in S.D. New York EIGHT ORANGES: Class of Tipped Workers Certified in Mangahas Suit EIGHT ORANGES: Court Denies Hong Bao's Bid to Dismiss Mangahas Suit ENSEMBLE FINANCIAL: Bishop Files ADA Suit in S.D. New York ENSTROM CANDIES: Lawal Files ADA Suit in S.D. New York FARRIOR CORP: Class Settlement in Nooney Suit Gets Final Approval FIRST CHOICE: Bagnall Sues Over Healthcare Staff's Unpaid Wages FORD-UAW RETIREMENT: McGlynn Sues Over ERISA Violations FRICKER'S USA: Fails to Pay Minimum Wages under FLSA and OMFWSA GAME-SET-MATCH: Lawal Files ADA Suit in S.D. New York GEO GROUP: Must Face Class Action Over ICE Contract Violations GRANDPARENT GIFT: Toro Files ADA Suit in S.D. New York JERRY W. BAILEY: Weldy's $70K Atty.'s Fee Award in Koch Suit Upheld LIMITLESS PCS: Horn Seeks Mobile Associates' Minimum, OT Wages MEKRUTH INC: $500K in Attys.' Fees and Costs Awarded in Thomas Suit MICROSOF CORP: Motion for Summary Judgment in BIPA Suit Granted MIDAMERICAN ENERGY: Averts Class Action Over Excessive 401(k) Fees MYLAN INC: Grant in Part of Bid to Compel in Rochester Suit Upheld NATIONAL FOOTBALL: Faces Class Action Over Auto Renewal Policy NETFLIX INC: Glancy Prongay to Lead Investors' Class Action Suit NEW MEXICO: Order Adopting Case Review in Hatten-Gonzales Appealed NEW YORK: M.G. Wins Bid for Production of Unredacted Census Docs NISSAN MOTOR: Faces Class Suit Over Unsafe Nissan Altima Vehicles NORTHEAST COMMUNITY: Carroll's Bid for Settlement Approval Denied ORGANIGRAM HOLDINGS: Court Okays Settlement in Cannabis Class Suit PRINCESS CRUISES: Class Action Suit Begins Over COVID-19 Outbreak REALPAGE INC: Renters File Antitrust Class Action Over Rent Spike RUNNING WAREHOUSE: Can Compel Arbitration in Patrick & 6 More Cases SAFARICOM PLC: Faces Class Action Over Alleged SIM-Swap Fraud SENTINEL INSURANCE: Court Dismisses Zunino Suit With Prejudice SINGTEL OPTUS: Taps Deloitte Forensic Experts to Review Breach Suit SMASHBURGER IP: Consumer Suit Deal Approval Hearing Set Jan. 2023 SOUTHERN CAPITAL: Joint Discovery Plan in Macklin Suit Approved ST. FRANCOIS COUNTY, MO: Hopple Alleges Jail's Inhumane Conditions STA MANAGEMENT: $1.95MM Class Deal in Mata FLSA Suit Wins Approval TEXAS PETE: Faces Class Action Lawsuit for False Brand Advertising TICKETMASTER ENTERTAINMENT: Consumer Settlement Hearing Set Dec 15 TRANSPORTATION INSURANCE: Taiclet Suit Dismissed With Prejudice TWITTER INC: Bids for Lead Plaintiff Appointment Due December 12 UBER TECHNOLOGIES: Mendel Must Post $1K Appeal Bond in James Suit VITAL PHARMACEUTICALS: Abbott Stayed Pending Bankruptcy Proceedings WALGREENS BOOTS: Securities Class Suit Over Rite-Aid Merger Pending WALGREENS BOOTS: Settles Opioid Abuse Dispute w/ Florida for $683M WALT DISNEY: Platinum Pass Customers Sue Over Parks' Restrictions [*] Ontario Court Proposes to Certify Suit Against Endoscopy Clinic [*] Third Circuit Vacated Order Denying FCRA Class Certification Asbestos Litigation ASBESTOS UPDATE: The Travelers Cos. Has $1.39BB Net Reserves ********* 3M COMPANY: PFAS Settlement Approval Hearing Set on March 29, 2023 ------------------------------------------------------------------ If you owned real property in the area identified as the North Kent Study Area in and around Plainfield and Algoma Townships, Kent County, Michigan as of November 1, 2017, and were not supplied with drinking water from a municipal water source as of November 1, 2017, you could get benefits from a class action settlement. A federal court authorized this Notice. It is not a solicitation from a lawyer. A Settlement has been reached with The 3M Company and Wolverine Worldwide, Inc. ("Defendants") in a class action lawsuit about the contamination of properties with per- and poly-fluoroalkyl substances ("PFAS") in the North Kent Study Area. What does the Settlement provide? Money for property damages to people who are or were owners of Real Property located within the North Kent Study Area, who owned that property as of November 1, 2017, and who were not supplied with drinking water from a municipal water source as of November 1, 2017. The Defendants have agreed to pay fifty-four million dollars ($54,000,000) into a Settlement Fund. After deducting attorneys' fees and costs, the Class Representatives' service awards, and the costs of notice and administration, the balance of the fund will be paid to the Settlement Class Members. Who is included in the Settlement Class? All Persons who are or were owners of Real Property located within the North Kent Study Area, who owned that property as of November 1, 2017, and who were not supplied with drinking water from a municipal water source as of November 1, 2017. You may be a Settlement Class Member if pursuant to the EGLE/Wolverine Consent Decree, Wolverine offered or provided a home filtration system or point of use filtration system in your home to treat the PFAS from your private well water or your private well was replaced with municipal water. And you may be a Settlement Class Member even if you did not receive a home filtration system and your private well was not replaced with municipal water. How do I get a payment from the Settlement? To qualify for a settlement payment, you must complete and submit a Claim Form by January 17, 2023. You may complete and submit a Claim Form online at www.Wolverine3MClassSettlement.com, or email a completed Claim Form to info@Wolverine3MClassSettlement.com. Claim Forms are also available by calling 1-833-383-1161, or by writing to Zimmerman v. The 3M Company General Administrator, 1650 Arch St, Ste 2210, Philadelphia, PA 19103. What are my rights? If you are a Settlement Class Member and do nothing, you will be bound by the Settlement and will give up any right to separately sue any of the Released Parties, including the Defendants, for the claims made in this lawsuit and released by the Class Settlement Agreement. If you are a Settlement Class Member and you submit a timely and valid exclusion request for a property that you own jointly with one or more other Settlement Class Members, all Settlement Class Members owning the property will be considered to have submitted a timely and valid exclusion request. Unless you exclude yourself, you are part of the Settlement if you are a Settlement Class Member. If the Settlement is approved and becomes final, all of the Court's orders in this Class Action will apply to you and legally bind you. You will not be able to sue or be part of any other lawsuit against the Defendants and the Released Parties that involves the issues resolved by this Settlement. The rights you are giving up are called Released Claims. The Court's hearing. The Court will hold a Final Approval Hearing at 10:00 a.m. on March 29, 2023, at the United States District Court for the Western District of Michigan, 113 Federal Building, 315 West Allegan Street, Lansing, Michigan 48933. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. It will also consider whether to approve Class Counsel's request for an award of attorneys' fees and costs, as well as the Class Representative Plaintiffs' service awards. If there are objections, the Court will consider them. The Court may listen to people who have asked to speak at the hearing. You or your own lawyer may appear and speak at the hearing at your own expense, but there is no requirement that you or your own lawyer do so. After the hearing, the Court will decide whether to approve the Settlement. This notice is only a summary. For more information, including the full Notice and Settlement Agreement, visit www.Wolverine3MClassSettlement.com, email info@Wolverine3MClassSettlement.com, or call 1-833-383-1161. Media Contact: Angeion Group Shiri Lasman (215) 563-4116 [GN] 7-ELEVEN INC: Averts Franchisees' Class Action Suit --------------------------------------------------- Gerald L. Maatman, Jr., Esq., Brandon Spurlock, Esq., and Shaina Wolfe, Esq., of Duane Morris, disclosed that in Patel, et al. v. 7-Eleven, Inc., et al., 2022 WL 4540981, No. 17-11414 (D. Mass. Sept. 28, 2022), Judge Nathaniel Gorton of the U.S. District Court for the District of Massachusetts granted summary judgment in favor of 7-Eleven, as a franchisor, and denied Plaintiffs' motion for class certification because franchisees were not employees under Massachusetts state law. In analyzing the state independent contractor statute, the Court determined that the obligations the franchisees undertook pursuant to the franchise agreement did not amount to "services" for purposes of the statute and Plaintiffs, therefore, were not employees. This ruling is important because it provides guidance for companies operating under a franchisor/franchisee business model on how to combat arguments that franchisee agreements create an employee/employer relationship and obligate franchisors to cover a myriad of legal costs for their franchisees. Background Of The Case Plaintiffs, a group of franchisee store owners and operators, brought a putative class action against 7-Eleven alleging that Defendant misclassified them as independent contractors in violation of the Massachusetts Independent Contractor Law. Id. at 1. Two of the named Plaintiffs entered into franchise agreements directly with 7-Eleven and three as corporate entities. Id. The franchise agreements outlined the obligations of the franchisees and included language that the franchisee agreed to hold itself out to the public as an independent contractor. Id. Under the agreement, the franchisee also agreed to pay several types of fees to 7-Eleven, including a franchise fee, gasoline fee, and down payment fee. Id. at 2. Plaintiffs filed a class action in Massachusetts state court and Defendant removed it on diversity grounds. Id. Both parties filed cross-motions for summary judgment, and Plaintiffs filed a motion for class certification. Id. The District Court granted summary judgment in favor of 7-Eleven, and Plaintiffs appealed to the First Circuit where the case was remanded to allow the District Court to first weigh on the issue, which the First Circuit certified as "[w]hether the three-prong test for independent contractor status . . . applies to the relationship between a franchisor and its franchisee . . ." Id. On remand, the District Court analyzed the elements for the independent contractor test under Massachusetts law, including: (1) freedom from control and direction; (2) service is performed outside the usual course of business; and (3) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service. Id. at 3. Defendant argued that franchisees do not perform services for 7-Eleven, and in fact, 7-Eleven actually provides services to the franchisee in exchange for payment; and that 7-Eleven was not a direct employer where the franchise agreement was entered into by corporate entities. Id. at 4. The District Court based its ruling on the threshold inquiry of determining whether the individual performs any service for the alleged employer. Id. Plaintiffs argued that because the franchise agreement required them to work full time in the store, operate the store 24 hours a day, record inventory sales, wear approved uniforms and use 7-Eleven payroll system, in addition to submitting cash reports and depositing receipts, they should be deemed employees, not independent contractors. Id. at 5. The District Court, however, was not convinced that the contractual obligations outlined in the franchise agreement, alone, constituted services under Massachusetts law regarding independent contractors. Id. Moreover, the District Court opined that although the parties do have mutual economic interests, even though both profit from the franchise stores' revenue, that mutual interest was not enough to establish that plaintiffs provide services to support an employee relationship. Id. In short, the District Court reasoned that where a franchisee is merely fulfilling its contractual obligations under a franchise agreement, that by itself does not refute the independent contractor status. Id. The District Court therefore granted 7-Eleven's motion for summary judgment and denied Plaintiffs' motion for class certification. Id. at 6. Implications For Employers For those companies with franchisee operations, this ruling supports the position that obligations under a franchise agreement requiring the franchisee to perform certain tasks does not establish an employment relationship. And the fact that the franchisor provides services to the franchisee for payment actually cuts against the employee designation. Further, the simple fact of mutual benefit from business revenues does not help establish employee status under these circumstances. Although an appeal from Plaintiffs is anticipated, the District Court's analysis offers solid guidance for franchisors who are operating under similar franchise agreements. [GN] AAA FREIGHT: Violates Lease Agreements, Owner-Operators Contend --------------------------------------------------------------- MAUD LEE, ARRICK JACKSON, and TREMAYNE WILLIAMS, individually and on behalf of others similarly situated, v. AAA FREIGHT INC. and DEKI TRANSPORT, INC., Case No. 1:22-cv-05652 (N.D. Ill., Oct. 14, 2022) contends that the Defendants engaged in a widespread scheme to violate their lease agreements with owner-operators in order to steal part of owner-operators' compensation pursuant to the Truth in Leasing Act. According to the complaint, the Defendants breached the contracts with Plaintiffs and the Class members by not paying them 80% of the real rate that brokers or shippers paid to the Defendants. The Defendants allegedly refused to provide the Plaintiffs with copies of the original brokers' load confirmation sheets. Instead, AAA Freight communicated the price of the loads to Plaintiffs via text messages or by email using their own dispatch sheets, the Plaintiffs claim. The Plaintiffs could not verify that the AAA Freight accurately communicated the load prices to them because Defendants refused to provide the required load confirmation sheets, they added. The Defendants directly pocketed the portion of gross receipts they concealed from each driver and paid drivers' their promised portion of the lower, underreported amount, the Plaintiffs added. The Plaintiffs and other drivers worked for Defendants as owner-operators. AAA Freight is a federally licensed motor carrier that enters into contracts with owner-operators to use their semi-trucks, with or without a driver, to transport goods under their motor carrier license. AAA Freight paid the Plaintiffs through Deki Transport, Inc., an Indiana corporation that is not a federally licensed motor carrier.[BN] The Plaintiffs are represented by: Christopher J. Wilmes, Esq. Emily R. Brown, Esq. HUGHES SOCOL PIERS RESNICK & DYM 70 W. Madison St., Ste. 4000 Chicago, IL 60602 Telephone: (312) 580-0100 E-mail: cwilmes@hsplegal.com ebrown@hsplegal.com ABBOTT LABORATORIES: Formula Milk May Cause Bacterial Infection --------------------------------------------------------------- Audet and Partners, LLP are investigating claims as part of an infant formula lawsuit on behalf of purchasers of infant formula made from cow's milk, including Similac and Enfamil. An increasing number of studies suggest that the use of these formulas may give rise to an extremely dangerous condition in infants called necrotizing enterocolitis ("NEC"). Additionally, an investigation of the development and marketing of these products suggests that the manufacturers may have known of this danger to premature babies and deliberately withheld this information from the public. NEC is a bacterial infection in newborns that can manifest in the intestinal walls of the infant and ultimately result in the decay of the intestinal walls. This decay, in turn, can leave infants vulnerable to highly aggressive bacteria that can ultimately result in sepsis and death in a significant percentage of premature infants stricken with NEC. If any customer has purchased Similac (manufactured by Abbott Laboratories Inc.) and/or Enfamil (manufactured by Mead Johnson Nutrition) and given either of these formulas to their infant, the firm urged to immediately contact an infant formula lawsuit attorney at Audet & Partners, LLP for a free, confidential consultation. Anyone can reach us by completing and submitting the inquiry form on the right side of this page, or by giving us a call at (800) 965-1461. [GN] ACADEMY SPORTS: Bishop Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Academy Sports And Outdoors, Inc. The case is styled as Cedric Bishop, on behalf of himself and all other persons similarly situated v. Academy Sports And Outdoors, Inc., Case No. 1:22-cv-08732 (S.D.N.Y., Oct. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Academy Sports And Outdoors -- https://www.academy.com/ -- is an American sporting goods store chain.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal ALBUQUERQUE, NM: Silver Suit Stayed Pending Ruling on Dismissal Bid ------------------------------------------------------------------- In the case, GERALD SILVER, on behalf of himself and others similarly situated, Plaintiff v. CITY OF ALBUQUERQUE, Defendant, Civ. No. 22-400 MIS/GBW (D.N.M.), Chief Magistrate Judge Gregory B. Wormuth of the U.S. District Court for the District of New Mexico enters an order: a. granting the Defendant's Motion to Stay All Discovery Until Resolution of Defendant's Pending Motion to Dismiss; and b. denying the Plaintiff's Cross-Motion for an Initial Scheduling Order or to Compel Participation in a Rule 26(f) Conference. The case is a purported class action wherein the Plaintiff alleges violations of the Telephone Consumer Protection Act (TCPA) based on the Defendant's use of pre-recorded phone calls to convey information associated with virtual town hall meetings. See generally doc. The Defendant filed its Motion to Dismiss and Brief in Support on July 27, 2022, arguing that the Complaint fails to state a plausible claim for relief pursuant to Federal Rule of Civil Procedure 12(b)(6). On Aug. 23, 2022, it filed its Motion to Stay All Discovery Until Resolution of Defendant's Pending Motion to Dismiss, requesting a temporary stay of discovery pending the Court's resolution of its Motion to Dismiss. The Plaintiff filed his Response to the Defendant's Motion to Stay and Cross-Motion for an Initial Scheduling Order, or, in the Alternative, to Compel Defendant's Participation in a Rule 26(f) Conference on Aug. 24, 2022. The Defendant contends that a stay of discovery pending the resolution of its Motion to Dismiss is appropriate because its Motion to Dismiss, if granted, would dispose of the entire lawsuit, a stay of discovery would not prejudice the Plaintiff, and the case is a putative class action. The Plaintiff disputes those contentions and argues that the Court should enter an initial scheduling order containing a deadline for the parties to engage in a Rule 26(f) conference and a date for a Rule 16 scheduling conference -- or otherwise compel the Defendant's attendance in a Rule 26(f) conference -- based on a straightforward application of Federal Rules of Civil Procedure 16(b) and 26(f)(1) and because the factors applied by courts in this district to similar motions to stay discovery weigh in favor of denying a stay. The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings. In performing this weighing function, courts in this district consider the following factors: (1) the plaintiff's interests in proceeding expeditiously with the civil action and the potential prejudice to plaintiff of a delay; (2) the burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties to the civil litigation; and (5) the public interest. Judge Wormuth finds that the applicable factors, on balance, weigh in favor of staying discovery pending the resolution of the Defendant's Motion to Dismiss. He finds that the Plaintiff's interest in a rapid and efficient resolution of this case is outweighed by the burden to the Defendant of continuing discovery and the convenience to the Court of granting a stay. Additionally, he finds that the interests of putative class members and the public are served by a stay. Accordingly, the Defendant's Motion to Stay is granted and the Plaintiff's Cross-Motion for an Initial Scheduling Order is denied. The matter is stayed pending ruling on the Defendant's Motion to Dismiss. A full-text copy of the Court's Oct. 14, 2022 Order is available at https://tinyurl.com/mrxtuddt from Leagle.com. ALLSTATE FIRE: Muehlhausen Files Suit in D. Arizona --------------------------------------------------- A class action lawsuit has been filed against Allstate Fire and Casualty Insurance Company. The case is styled as Morgan Muehlhausen, Berenice Gaytan, Russell Wood, an individual, on behalf of herself and all others similarly situated v. Allstate Fire and Casualty Insurance Company, Case No. 2:22-cv-01747-JAT (D. Ariz., Oct. 12, 2022). The nature of suit is stated as Insurance Contract for Breach of Contract. Allstate Fire and Casualty Insurance Company -- https://www.allstate.com/ -- operates as an insurance firm.[BN] The Plaintiff is represented by: David Edward Wattel, Esq. Michael Lee York, Esq. WATTEL & YORK LLC 2175 N Alma School Rd., Ste. B107 Chandler, AZ 85224 Phone: (480) 222-2020 Fax: (480) 899-2741 Email: d.wattel@wattelandyork.com m.york@wattelandyork.com - and - John Michael DeStefano, III, Esq. Robert B Carey, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 11 W Jefferson St., Ste. 1000 Phoenix, AZ 85003 Phone: (602) 840-5900 Fax: (602) 840-3012 Email: johnd@hbsslaw.com - and - Maren Tobler Hanson, Esq. TOBLER LAW PC 4824 E Baseline Rd., Ste. 109 Mesa, AZ 85206 Phone: (480) 898-9700 Fax: (480) 464-1172 Email: maren@toblerlaw.com AMAZON.COM INC: 2nd Cir. Affirms in Part Dismissal of Palmer Suit ----------------------------------------------------------------- In the case, DERRICK PALMER, KENDIA MESIDOR, BENITA ROUSE, ALEXANDER ROUSE, BARBARA CHANDLER, LUIS PELLOT-CHANDLER, DEASAHNI BERNARD, Plaintiffs-Appellants v. AMAZON.COM, INC., AMAZON.COM SERVICES, LLC, Defendants-Appellees, Case No. 20-3989-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirms in part and vacates in part the district court's order granting Amazon's motion to dismiss the Plaintiffs' amended complaint. Workers at Amazon's JFK8 fulfillment center and members of their households (together, "Plaintiffs") challenge the Defendants' workplace COVID-19 policies, practices, and procedures at JFK8. Their suit against Amazon.com, Inc. and Amazon.com Services LLC (together, "Amazon") in the U.S. District Court for the Eastern District of New York (Brian M. Cogan, Judge) asserts causes of action under New York law for public nuisance, breach of the duty to protect the health and safety of employees under New York Labor Law ("NYLL") Section 200, violation of NYLL Section 191 for failure to pay, on time and in full, COVID-19 sick leave under New York's COVID-19 sick leave law, and injunctive relief against future violations of NYLL Section 191. The JFK8 is a facility operated by Amazon in Staten Island, New York. On March 1, 2020, New York announced its first confirmed case of COVID-19. On March 20, 2020, then-New York Governor Andrew Cuomo issued the New York State on PAUSE Executive Order. The Order permitted essential businesses -- those providing products or services required to maintain the health, safety, and welfare of New Yorkers -- to remain open. Amazon was deemed an essential business. In May 2020, New York began a phased reopening of non-essential businesses under the New York Forward plan. In parallel to the Governor's executive action, on March 18, 2020, the New York legislature responded to the pandemic by enacting a COVID-19 sick leave law. Amazon moved to dismiss the Plaintiffs' amended complaint. In a memorandum decision and order filed on Nov. 2, 2020, the district court granted Amazon's motion. On Nov. 3, 2020, the district court entered judgment dismissing the Plaintiffs' amended complaint. The district court dismissed the Plaintiffs' public nuisance and NYLL Section 200 claims without prejudice under the primary jurisdiction doctrine, concluding that the questions before the court turned on factual issues requiring the technical and policy expertise of the Occupational Safety and Health Administration ("OSHA"). In the alternative, it concluded that the Plaintiffs failed to allege the special injury required to state a claim for public nuisance; that New York's Workers' Compensation Law preempts suit under NYLL Section 200 for injunctive relief for past harm; and that Plaintiffs failed to allege a cognizable injury under NYLL Section 200 based on the threat of future harm. The district court then dismissed with prejudice the Plaintiffs' NYLL Section 191 claims, concluding that COVID-19 leave payments are not "wages" as defined by Section 191. The Plaintiffs now appeal the district court's dismissal. This appeal presents five key questions: (1) whether the Plaintiffs' public nuisance and NYLL Section 200 claims are moot because they are premised on New York Forward, a state-issued plan with industry-specific guidance for businesses that has since been rescinded; (2) whether the district court correctly applied the primary jurisdiction doctrine in dismissing the Plaintiffs' state law claims in deference to OSHA; (3) whether the Plaintiffs plausibly plead a special injury to support a public nuisance claim against Amazon; (4) whether the New York Workers' Compensation Law bars claims for injunctive relief under NYLL Section 200; and (5) whether NYLL Section 191 establishes how and when COVID-19 sick leave pay must be paid. First, the Second Circuit holds that the Plaintiffs' public nuisance and NYLL Section 200 claims are not moot. It says these claims continue to present a live controversy because they are not based solely on since-rescinded guidance associated with the New York Forward plan. Second, it holds that the doctrine of primary jurisdiction does not apply to the Plaintiffs' public nuisance and NYLL Section 200 claims. The issues before the Second Circuit -- whether Amazon created a public nuisance and whether Amazon has breached its duty owed to the Plaintiffs under NYLL Section 200 -- turn on questions of state tort law that are within the conventional experience of judges. Although it is certainly within OSHA's competence to evaluate and create workplace health and safety standards, OSHA's expertise would not be a material aid; the issues before it are of a legal, not factual, nature and do not require the kind of highly factual inquiry that would typically be aided by OSHA's expertise. Furthermore, OSHA has not promulgated the kind of cross-industry COVID-19 workplace safety standards that might be applicable in the case. Third, the Second Circuit holds that although the Plaintiffs may plead a harm that is different in degree from the community at large, they fail to plead a harm that is different in kind, thereby failing to allege the special injury required to state a claim for public nuisance under New York law. Fourth, it holds that New York's Workers' Compensation Law is concerned only with claims for monetary relief and leaves open claims against employers for injunctive relief under NYLL Section 200. Lastly, it holds that NYLL Section 191 determines the pay frequency for "wages" but not "benefits or supplemental wages." Because COVID-19 leave payments are not "wages" as defined by NYLL Section 191, the Plaintiffs do not have a private cause of action under Section 191 for Amazon's alleged failure to comply with New York's COVID-19 sick leave law. Accordingly, the Second Circuit affirms the district court's dismissal of the Plaintiffs' public nuisance claim and NYLL Section 191 claims for damages and injunctive relief. It vacates the district court's dismissal of the Plaintiffs' NYLL Section 200 claim seeking a declaratory judgment and injunctive relief. It remands to the district court for further proceedings on this claim. A full-text copy of the Court's Oct. 18, 2022 Order is available at https://tinyurl.com/mryktxwv from Leagle.com. KARLA GILBRIDE, PUBLIC JUSTICE, Washington, DC (Emily Villano, Public Justice, Washington, DC, Juno Turner, David H. Seligman, and Valerie Collins, Towards Justice, Denver, CO, Beth Terrell, Terrell Marshall Law Group PLLC, Seattle, WA, on the brief), for the Plaintiffs-Appellants. JASON C. SCHWARTZ -- jschwartz@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Washington, DC (Lucas C. Townsend -- jschwartz@gibsondunn.com -- Lochlan F. Shelfer -- lshelfer@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Washington, DC, Avi Weitzman, Zainab N. Ahmad -- zahmad@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, New York, NY, on the brief), for the Defendants-Appellees. AMAZON.COM INC: Court Stays Portion of Price Fixing Class Action ---------------------------------------------------------------- Sylvie Rodrigue, Esq., Sarah E. Whitmore, Esq., Shalom Cumbo-Steinmetz, Esq., and Colette Koopman, Esq., of Torys LLP, in an article for Mondaq, report that in a recent decision, the Federal Court enforced an arbitration clause and stayed a portion of a proposed class action against Amazon related to price fixing1. This decision complements a body of case law that confirms the enforceability of arbitration agreements and class action waivers found in standard form terms and conditions of use. What you need to know The Federal Court held that: -- disputes about the validity of an arbitration agreement or the jurisdiction of an arbitrator should be resolved by the arbitrator unless there are exceptional circumstances; -- to argue that referring a dispute to arbitration will make it impossible for one party to arbitrate, there must be clear evidence that there is a real prospect of denial of access to justice -- a mere possibility of a denial of access to justice will not overcome the agreement to arbitrate; and -- whether an arbitration agreement is unconscionable is determined at the time the contract is entered into, not once claims arise. The details A proposed class action against Amazon was filed in the Federal Court in 2020 alleging that Amazon conspired with third-party sellers to fix the prices for products sold on Amazon platforms contrary to the Competition Act. Amazon brought a motion to stay a portion of the action in favour of arbitration in 2021. When deciding whether to grant a stay of the class action, the Federal Court focused on three questions: 1. Was there an arbitration agreement in place? 2. Did the proposed claim arguably fall within the scope of the agreement? 3. Were there any grounds to refuse a stay? The Federal Court concluded that there was an arbitration agreement in place, the proposed claim fell within the agreement's scope and there were no grounds to refuse a stay. There was an arbitration agreement in place The plaintiff agreed to an arbitration agreement as part of Amazon's terms and conditions of use when she created an account and each time she made a purchase. The Federal Court rejected the plaintiff's argument that she did not have adequate notice of the arbitration agreement because click-through contracts have "been deemed valid by Canadian courts for over two decades" and the clause was not hidden in fine print. The proposed claim fell within the scope of the arbitration agreement The Court found that Amazon's arbitration agreement was broad and covered all matters pertaining to purchases made on its platforms. There were no grounds to refuse a stay Subject to limited exceptions, any disputes under the scope of an arbitration agreement should be stayed in favour of arbitration. This extends to disputes regarding the arbitrator's jurisdiction and the validity of the arbitration agreement. To date, courts have identified three exceptions to this general rule. First, if there is a challenge to the validity of an arbitration agreement, a court can resolve the challenge if there is no serious debate about the issue. Second, if a challenge to an arbitrator's jurisdiction concerns a question of law or a question of mixed law and fact only requiring a superficial examination of documentary proof and the court is convinced that the challenge is not a delay tactic and will not prejudice the recourse to arbitration, the court may decide the question. Third, if referring the matter to arbitration will make it impossible for one party to arbitrate, the court will refrain from doing so. In this case, the plaintiff argued that it would be impossible for her to arbitrate her claims because an arbitrator would be unable to grant relief under the Competition Act (as a result of the Choice of Law clause pointing to U.S. law), the cost of arbitration was prohibitive, and the agreement was contrary to public policy and unconscionable. The Court rejected these arguments. To establish that arbitration is impossible for one party, there must be clear evidence that there is a real prospect of denial of access to justice, not just a mere possibility. Despite filing expert evidence, the plaintiff failed to meet that evidentiary threshold. The Court found that it was not clear based on the evidence that there would be no relief available for the arbitrator to grant even if they could not apply the Competition Act. The Court also found that the cost of pursuing arbitration was not prohibitive and any barrier the plaintiff faced was due to the nature of the claim she sought to pursue. The arbitration agreement limited the up-front cost of arbitrating to $200 for the plaintiff and left open the option of pursuing small claims court actions. The Court also concluded that the arbitration agreement and class action waiver were not contrary to public policy, in part, because there was no legislative intervention barring these forms of agreements. While Ontario, Quebec, and Alberta have legislation prohibiting arbitration clauses in consumer contracts, the Court focused on the fact that neither the Competition Act nor the governing U.S. law contained any such legislative intervention. The Court explained that although the plaintiff's alleged harms are "those of an ordinary consumer -- overpaying for goods purchased in consumer transactions -- the conduct resulting in that harm has a uniquely commercial character." Finally, the Court found the arbitration clause was not unconscionable because there was no clear inequality of bargaining power nor an improvident bargain at the time the agreement was made. Conclusion Ultimately, the Federal Court stayed a portion of the proposed class action in favour of arbitration. This decision confirms the limited exceptions that can bar stays in favour of arbitration. Unless there are exceptional circumstances, arbitration agreements and class action waivers are being enforced. [GN] AMAZON.COM INC: Faces UK Class Action Over "Secretive Algorithm" ---------------------------------------------------------------- Bloomberg News reports that Amazon Inc. faces a UK class action lawsuit over claims the tech giant uses a "secretive algorithm" to abuse its dominant position in the online marketplace. Amazon has made millions of customers pay more by hiding better deals on its website and mobile app to boost its own products, Hausfeld, the law firm behind the case, alleges. It does this by using a "secretive and self-favoring algorithm in its Buy Box feature." For the latest headlines, follow our Google News channel online or via the app. Britain's opt-out class action regime finally sparked into life last year after new laws allowed US-style claims under competition law. A flurry of cases have been filed recently including against Meta Platforms Inc's alleged misuse of personal data and overcharging on Alphabet Inc's Google Play Store. The suit will still need to be officially notified as a class action by a judge. The suit will be filed against the tech giant at the Competition Appeal Tribunal by October 31, Hausfeld said. Damages, which are based on economists estimates from potential losses, could be as much as £900 million ($1 billion). Julie Hunter, a consultant who has worked with consumer rights organizations, will represent the potentially tens of millions of people who could be part of the suit. Opt-out class action style lawsuits mean someone impacted doesn't have to be involved in the case to be included or to get a share in any eventual award. Amazon has been dealing with wider antitrust scrutiny surrounding its Buy Box. The CMA is currently investigating the company's suspected anticompetitive conduct relating to its Buy Box, while the European Commission is in talks to settle a case on possible bias from the same feature. "Amazon takes advantage of consumers' well known tendency to focus on prominently placed and eye-catching displays, such as the Buy Box," Lesley Hannah, a lawyer at Hausfeld, said. "Amazon should not be allowed to take advantage of its customers in this anticompetitive way." [GN] AMERICAN FAMILY: Permanent Injunction Entered in Hesselink Suit --------------------------------------------------------------- Judge Clay D. Land of the U.S. District Court for the Middle District of Georgia, Columbus Division, enters a permanent injunction and Final Judgment in the lawsuit styled AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, Petitioner v. BRENT HESSELINK, Respondent, Civ. No. 4:22-cv-00130-CDL (M.D. Ga.). The matter is a petition to compel arbitration brought under the Federal Arbitration Act ("FAA"), 9 U.S.C. Section 4. Aflac is a Nebraska corporation headquartered in Columbus, Georgia, which is engaged in the business of providing supplemental life, health, and accident insurance. The Respondent is a former independent contractor sales agent with Aflac, who entered into an Associate's Agreement to market Aflac insurance products in or around March 2019 Respondent purports to be a resident and citizen of the State of California. The Petitioner filed its Petition on Aug. 25, 2022, seeking an order from the Court compelling the Respondent to submit to binding arbitration, on an individual basis, certain claims he has asserted against it in a lawsuit filed in the Superior Court of the State of California for the County of Orange, Case No. 30-2020-01161586-CU-OE-CXC (the "California Action"). In addition, the Petitioner also asks the Court to enjoin the Respondent from taking any further actions to prosecute the California Action in court and to cease and dismiss the California Action in its entirety. In support of its requests, the Petitioner relies upon an arbitration provision contained in the Respondent's Associate's Agreement. In the California Action, the Respondent alleges claims for civil penalties under the California Labor Code Private Attorneys General Act of 2004 ("PAGA") on behalf of himself and a putative class of allegedly aggrieved plaintiffs. His claims relate to (a) his and other putative class members' classification as independent contractors under the Associate's Agreement; (b) the compensation he and other putative class members were paid by Aflac pursuant to the Associate's Agreement; and (c) the terms and conditions of his and other putative class members' alleged "employment" with Aflac. As alleged in the Petition, the Respondent's California Action asserts claims for various penalties, damages and other forms of relief that, particularly on a class-wide basis, would exceed $75,000 if he were to succeed on his claims. The California Action has been stayed since January 2022 as a result of the U.S. Supreme Court granting certiorari in December 2021 of Viking River Cruises, Inc. v. Moriana (No. 20-1573, June 15, 2022), which would directly address whether PAGA claims can be subject to private arbitration agreements. Given its potentially dispositive effect on the Respondent's lawsuit, the California court stayed the California Action pending the Supreme Court's decision. In June 2022, Viking River was decided, and the California court then extended the stay of the California Action until Oct. 26, 2022, to allow the parties time to address the effect of Viking River on Respondent's claims. To that end, Aflac filed its Petition with this Court seeking to enforce the arbitration agreement following the Supreme Court's Viking River decision, and to compel the Respondent to submit his claims against Aflac to individual arbitration in accordance with his Associate's Agreement. Paragraph 10 of the Respondent's Associate's Agreement contains an arbitration agreement. On Sept. 12, 2022, the Court entered an Order Granting Preliminary Injunction, temporarily granting the Petitioner the relief requested in the Petition until the Court had an opportunity to consider and decide the merits of the Petition on a permanent basis. It also sought to provide the Respondent with additional time, notice and opportunity to appear in this matter, and to respond to the Petition by his initial response deadline on Sept. 16, 2022. n September 29, 2022, the Petitioner filed a Motion Renewing Petition for Order Compelling Arbitration and for Expedited Review and Hearing ("Motion"), which sought an expedited hearing and asked the Court to convert its September 12 Order Granting Preliminary Injunction to a Final Order and Judgment. A copy of the Motion was served on the Respondent's counsel and the Respondent. On Oct. 13, 2022, the Court held a hearing on this matter as scheduled. Neither the Respondent nor any representative of him appeared. Based on the facts set forth, Judge Land finds that the Respondent was properly served with the pleadings in this matter, that he was provided adequate prior notice of the hearing held on Oct. 13, 2022, and that he failed to appear for the hearing without justification, excuse or other good cause shown. Judge Land then concludes that the Court has jurisdiction over the Respondent. He says the Respondent consented to jurisdiction and venue being proper in the Court, and that the Court has such personal jurisdiction over the Respondent by virtue of his contractual agreement with Aflac and other contacts with Georgia as alleged in the Petition. He further concludes that the exercise of personal jurisdiction over the Respondent comports with both constitutional due process requirements and the Georgia long-arm statute. Having expressly found jurisdiction exists to consider this matter, Judge Land next addresses the merits of the Petition. As the Eleventh Circuit Court of Appeals has explained in Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir. 2008), "the FAA requires a court to compel arbitration upon a showing that (a) the plaintiff entered into a written arbitration agreement that is enforceable under ordinary state-law contract principles and (b) the claims before the court fall within the scope of that agreement." Judge Land holds that the requirements for arbitrability under Section 4 of the FAA are met. Turning to the permanent injunction, Judge Land states that a party seeking a permanent injunction must satisfy the following four-factor test: (a) that the plaintiff has suffered an irreparable injury; (b) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (c) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (d) that the public interest would not be disserved by a permanent injunction. He finds that Aflac has satisfied all four factors to be entitled to a permanent injunction in this matter. As an initial matter, the Respondent expressly agreed that Aflac may bring an action in a state or federal court in Georgia to enforce his arbitration agreement. Second, an injunction is necessary to prevent Respondent from continuing to cause Aflac irreparable harm by breaching his contractual agreement. Third, the threat of harm to Aflac from not issuing the injunction outweighs the potential harm, if any, to the Respondent should the injunction be granted. Finally, the public interest is best served by requiring the Respondent to honor his enforceable contractual obligations, as well as by the quick interpretation and resolution of contract issues through arbitration. Accordingly, Judge Land grants the Petition. The Respondent is ordered to submit any and all claims he has against Aflac arising out of or relating in any way to his contractual engagement with Aflac to binding arbitration on an individual basis, to the extent he wishes to pursue any such claims, including without limitation the PAGA claims he alleged in the complaint he filed in Hesselink v. American Family Life Assurance Company of Columbus, Case No. 30-2020-01161586-CU-OE-CXC, in the Superior Court of the State of California for the County of Orange. The Respondent is enjoined from taking any further steps to prosecute against Aflac any claims, including the pending PAGA claims, arising out of or relating in any way to his contractual engagement with Aflac, other than through arbitration on an individual basis pursuant to the terms of Respondent's Associate's Agreement. Judge Land says this permanent injunction will be in effect from the date of this Final Order and Judgment. A full-text copy of the Court's Oct. 14, 2022 Permanent Injunction & Final Judgment is available at https://tinyurl.com/42bnmab6 from Leagle.com. BARBADOS: May Face Class Action From Parents Over School System --------------------------------------------------------------- Sherry Lyn Clarke of Nation News reported that the state has a responsibility to be transparent and ask permission from the ward, guardian, or parent of a child in Barbados' school system before doing anything that would encroach on privacy. This is the view of social activist Winston Clarke, who was speaking during a protest by parents at Trevor's Way in Bridgetown on Saturday against the controversial Inter-American Development Bank questionnaire which was recently administered to 733 first-form students across six secondary schools. "It is only because somebody, a journalist, leaked the story out that we have become aware of it. There is no transparency. When you put your child into the school you give them permission between the hours of nine and three to inculcate and give them academia, ethics, morals, etc. If they do anything that is conflicting or contradictory to what your principles are, then it's distrust," Clarke said. Some of the parents involved have decided they would like to file a class action lawsuit against the Ministry of Education. Denise Rouse said that despite not having any children of her own who had taken the pre-test, she wanted to take a firm stance in order to make sure this does not happen to another generation of children. Lucina Alleyne, a grandmother also expressed concern about the administration of the questionnaire. Amongst the scores of parental figures that gathered in protest were fellow social activist Felicia Dujon and attorney Corey Beckles, who said he was there to offer legal advice. Dujon believes that now was the time for parents to make sure they were being heard. "I believe this is a matter of justice. An injustice has been done, there have been violations of parental rights and it is one question of what we should do as parents. I believe the ethical thing to do as a parent is to stand up and ensure that your rights are acknowledged and that you are not an invisible person in the lives of your children." Dujon added: "Parents have to hold the Government and all the persons responsible accountable for all the injustice that has been done. We also have to remember that children's rights must be upheld by all responsible agencies particularly those in an academic or school environment. We want to ensure that all our children are safe, not just physically, but psychologically. Right here today we have parents and grandparents coming out to stand up for their children and I think it's remarkable what they’re doing right now." Dujon, who is also a Philosophy lecturer at the University of the West Indies (UWI), Cave Hill Campus, spoke extensively on the laws associated with this situation on Friday during a lunchtime lecture at the Democratic Labour Party headquarters in George Street, Belleville. No placards were allowed at the protest and four police officers were in attendance. (Nation News) [GN] BARILLA AMERICA: Judge Denies Motion to Dismiss False Ads Suit -------------------------------------------------------------- Keller and Heckman LLP disclosed that on October 17, U.S. Magistrate Judge Donna M. Ryu denied Barilla America Inc.'s motion to dismiss a putative class action lawsuit that accused it of falsely representing its pastas as made in Italy [subscription to Law360 required]. The plaintiffs, Jessica Prost and Matthew Sinatro, allege that the company's federally trademarked phrase, "Italy's #1 Brand of Pasta," which is declared on the principal display panel and is accompanied by green, white, and red colors, is misleading to reasonable consumers and leads them to believe that the pasta products are made in Italy or with ingredients sourced from Italy, when the products are actually made in the United States. According to Barilla, the purpose of the trademark is to identify Barilla to consumers as the entity that made the products, and that it is not misleading to "invoke the Company's Italian roots through generalized representations of the brand as a whole." Further, Barilla argues that the plaintiffs lack standing and their complaint fails to state a claim. Judge Ryu did not find Barilla's arguments persuasive, but found that the plaintiffs' complaint plausibly alleges that the trademarked phrase supports a reasonable inference that the products were made in Italy or from Italian ingredients. Although Judge Ryu allowed the majority of the plaintiffs' claims to proceed, she rejected their request for injunctive relief and the arguments that they sufficiently alleged an immediate or actual threat of future harm from being deceived by the trademarked phrase. Judge Ryu stated that the "plaintiffs cannot plausibly allege that they remain unaware that the products are manufactured in the United States from ingredients that are not from Italy or that they reasonable would be misled if they encounter the [trademarked phrase] in the future." Keller and Heckman will continue to monitor and report on this case and other food litigation news. [GN] BAUER HOCKEY: Class of Furloughed Workers Certified in Barber Suit ------------------------------------------------------------------ In the case, Brooks Barber v. Bauer Hockey, LLC, Case No. 21-cv-742-SE (D.N.H.), Judge Samantha D. Elliott of the U.S. District Court for the District of New Hampshire grants the Plaintiff's motion for conditional certification of a collective action. Bauer makes and sells ice hockey equipment. Barber worked at Bauer as part of the Elite Athlete Services ("EAS") team from the summer of 2016 until Feb. 24, 2021. Beginning on April 13, 2020, Bauer put Barber and other employees, including other members of the EAS team, on furlough without pay because of the COVID-19 pandemic. Management, supervisory employees, and team members who were not furloughed continued to operate Bauer. Bauer continued to provide the furloughed employees with benefits and cellphone service during that period. It restricted the furloughed employees from using their Bauer emails and Bauer electronic systems, except their cellphones. However, Barber alleges that Bauer instructed the furloughed employees to back up their business contacts on their cellphones to allow them to continue to work and to communicate with athletes and teams on Bauer's behalf. He also alleges that management and supervisory employees contacted him and directed him to complete work during the furlough period, without compensation. In addition, Barber claims that other furloughed employees told him they were doing work for Bauer while they were furloughed. Mr. Barber filed a putative collective action on behalf of himself and similarly situated employees and former employees of Bauer, alleging violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201, et seq., and New Hampshire state law. Barber seeks conditional certification of a collective action pursuant to 29 U.S.C. Section 216(b) of the FLSA. Mr. Barber contends that Bauer violated the FLSA by not compensating him and other similarly situated furloughed employees. He moves for conditional certification of a collective, defined as follows: All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer's benefit, and who elect to join this action pursuant to 29 U.S.C. Section 216(b). He also asks that the Court permit him to send notice, as provided in an exhibit attached to his motion, to potential plaintiffs, and seeks approval of the proposed opt-in form for potential plaintiffs. Bauer objects to conditional certification of the proposed collective. In support, it contends that Barber has not shown that Bauer had a common practice to have furloughed employees work without compensation. It contends that Barber has not identified similarly situated employees or those who are willing to join the action and has not shown that Bauer subjected the proposed collective to a common decision, plan, or policy. Judge Elliott holds that Barber has sufficiently made the required showing that there are other similarly situated Bauer employees to support conditional certification. Specifically, he has alleged and provided some evidence of a common plan or policy by Bauer to permit or require furloughed employees, including Barber, to work without pay with managers' or supervisors' knowledge or direction. Bauer's arguments to the contrary, which largely focus on factual issues that it contends should preclude certification, are better addressed in the second stage of the litigation after discovery has taken place and if and when Bauer moves to decertify the collective. With the issue of conditional certification decided, there remain the issues of the scope of the collective and the content of the notice. In addition to arguing that the collective is or should be limited to EAS team members, Bauer argues that the collective should be confined to employees who were or are located in the United States. In support, it contends that the court lacks jurisdiction over Bauer's Canadian employees. In light of the issues Bauer raises, Judge Elliott orders the parties to confer about the notice procedure and attempt to reach a joint proposal. If the parties are unable to reach a joint proposal, despite their best good faith efforts to do so, they will file separate notice proposals, with citations to authority supporting the provisions they request. The Court will then issue an order for notice. For the foregoing reasons, Judge Elliott grants the Plaintiff's motion for conditional certification, with the exception of the requested notice procedure. The following collective is conditionally certified: All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer's benefit, and who elect to join this action pursuant to 29 U.S.C. Section 216(b). The parties will confer about the notice to be provided to the conditionally certified collective. By Nov. 8, 2022, the counsel will file a joint proposed notice to the collective, or if necessary, separate proposed notices, as is provided. A full-text copy of the Court's Oct. 18, 2022 Order is available at https://tinyurl.com/bdf4f7p9 from Leagle.com. BGDS LLC: Hendricks Files Suit in Cal. Super. Ct. ------------------------------------------------- A class action lawsuit has been filed against BGDS LLC, et al. The case is styled as Damien Hendricks, on behalf of other members of the general public similarly situated v. BGDS LLC, Does 1-100, Case No. 34-2022-00328328-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Oct. 12, 2022). The case type is stated as "Other Employment - Civil Unlimited." BGDS LLC is a freight shipping Trucking Company from Carmichael, California.[BN] The Plaintiff is represented by: Douglas Han, Esq. JUSTICE LAW CORPORATION 751 N Fair Oaks Ave, Ste. 101 Pasadena, CA 91103-3069 Phone: (818) 230-7502 Fax: (818) 230-7259 Email: dhan@justicelawcorp.com BJ ACQUISITION: Licea Sues Over Secretly Wiretapped Conversations ----------------------------------------------------------------- Jose Licea, individually and on behalf of all others similarly situated v. BJ ACQUISITION LLC, a Delaware limited liability company; and DOES 1 through 25, inclusive, Case No. 3:22-cv-01579-TWR-NLS (S.D. Cal., Oct. 13, 2022), is brought against the Defendant for violations of the California Invasion of Privacy Act as a result of the Defendant who secretly wiretaps the private conversations on its Website without warning visitors or obtaining their consent. The Defendant secretly wiretaps the private conversations of everyone who communicates through the chat feature at www.betseyjohnson.com (the "Website"); and allows at least one third party to eavesdrop on such communications in real time to harvest data for financial gain. The Defendant does not obtain visitors' consent to either the wiretapping or the eavesdropping. As a result, the Defendant has violated the CIPA in numerous ways. To enable the wiretapping, Defendant has covertly embedded code into its chat feature that automatically records and creates transcripts of all such conversations. To enable the eavesdropping, Defendant allows at least one independent third-party to secretly intercept in real time, eavesdrop upon, and store transcripts of the Defendant's chat communications with unsuspecting website visitors--even when such conversations are private and deeply personal. The Defendant neither informs visitors of this conduct nor obtains their consent to these intrusions, says the complaint. The Plaintiff is a resident and citizen of California. The Defendant is a Delaware limited liability company that owns, operates, and/or controls the www.betseyjohnson.com website.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS A Professional Corporation 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com BLOOMINGDALE'S INC: Faces Class Action Over Session Replay Code --------------------------------------------------------------- Kelly Mehorter, writing for ClassAction.org, reports that a proposed class action alleges Bloomingdale's has secretly "wiretapped" the online communications of "millions of individuals perusing" its website. The 32-page case claims that the fashion retailer has run afoul of the Missouri Wiretap Act by tracking consumers' interactions with bloomingdales.com without their knowledge. According to the complaint, Bloomingdale's deploys third-party providers, including FullStory, to embed snippets of code onto the company's website. Known as "session replay" code, the software can track various user interactions with the website, including mouse movements, clicks, scrolls, zooms, window resizes, keystrokes, text entries, and URLs of web pages visited, the filing contends. The suit explains that unlike standard website analytics tools, session replay code records a playback video of a consumer's entire website visit. Since every action is captured, including information typed by the consumer while on the site, the website operator may be able to access private data such as the user's name, email address, phone number, Social Security number or date of birth, the complaint alleges. "Most alarming, Session Replay Code may capture data that the user did not even intentionally transmit to a website during a visit, and then make that data available to website owners when they access the session replay through the Session Replay Provider. For example, if a user writes information into a text form field, but then chooses not to click a ‘submit' or ‘enter' button on the website, the Session Replay Code may nevertheless cause the non-submitted text to be sent to the designated event-response-receiving server before the user deletes the text or leaves the page." The lawsuit asserts that session replay providers can use captured information to create a profile of each user that links their identity with their web browsing history. According to the case, session replay providers are essentially "unknown eavesdroppers" as they "intercept" communications between the website's visitors and the website owner. Per the complaint, the information captured by Bloomingdale's helps power its targeted advertising capabilities. The suit says that according to Business News Daily, insight into the user experience allows companies such as Bloomingdale's to improve marketing strategies and website design. The lawsuit looks to represent anyone in Missouri whose website communications were captured through the use of session replay code embedded in Bloomingdales.com. [GN] BOBO INTRIGUING: Sanchez Sues to Recover Unpaid Overtime Premium ---------------------------------------------------------------- Gerardo Sanchez, individually and on behalf of all those similarly situated v. BOBO INTRIGUING OBJECTS, LLC and MARK SAGE, Jointly and Severally, Case No. 1:22-cv-04103-JPB (N.D. Ga., Oct. 13, 2022), is brought to recover unpaid overtime premium pay, owed to them pursuant to the Fair Labor Standards Act (FLSA) and supporting regulations. On average, the Plaintiff worked 60 hours each week, but on occasion worked as many as 70 hours in a single week. Throughout the Plaintiff's employment, the Defendants maintained a time clock. The Plaintiff was required to clock-in when arriving at work, and clock-out when leaving work. Throughout the Plaintiff's employment, the Plaintiff was straight-time for all hours worked and received no overtime wages whatsoever, despite working in excess of 40 hours each week. Throughout the Plaintiff's employment, the Plaintiff received no overtime wages despite working excess of 40 hours each week, says the complaint. The Plaintiff was employed by the Defendants as a shipping associate from October 2016 to April 26, 2022. The Defendants own and operate a furniture manufacturing company called Bobo Intriguing Objects.[BN] The Plaintiff is represented by: Brandon A. Thomas, Esq. THE LAW OFFICES OF BRANDON A. THOMAS, PC 1 Glenlake Parkway, Suite 650 Atlanta, GA 30328 Phone: (678) 862-9344 Fax: (678) 638-6201 Email: brandon@overtimeclaimslawyer.com BOXLIGHT INC: Carrico Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Boxlight, Inc. The case is styled as Joyce Carrico, on behalf of herself and all others similarly situated v. Boxlight, Inc., Case No. 1:22-cv-08652 (S.D.N.Y., Oct. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Boxlight -- https://boxlight.com/home -- creates easy to use, innovative and effective technology for the classroom and office.[BN] The Plaintiff is represented by: Justin Solomon Nematzadeh, Esq. NEMATZADEH PLLC 101 Avenue of the Americas, Ste. 9th Floor New York, NY 10013 Phone: (646) 417-8424 Email: jsn@nematlawyers.com BP EXPLORATION: Wins Summary Judgment Bid; Bennett Suit Dismissed ----------------------------------------------------------------- In the case, GWENDOLYN F. BENNETT v. BP EXPLORATION & PRODUCTION, INC. ET AL., SECTION: H(1), Civil Action No. 17-3042 (E.D. La.), Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana grants the Motion for Summary Judgment filed by BP America Production Co., BP Exploration & Production, Inc., BP p.l.c., Halliburton Energy Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and Transocean Offshore Deepwater Drilling, Inc. The case is one among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. This bundle comprises claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant). These cases were originally part of a multidistrict litigation ("MDL") pending in the Eastern District of Louisiana before Judge Carl Barbier. During this MDL, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but the B3 plaintiffs either opted out of this agreement or were excluded from its class definition. Subsequently, Judge Barbier severed the B3 cases from the MDL to be reallocated among the judges of this Court. The case was reassigned to Section H. Ms. Bennett alleges continuous exposure to harmful substances and chemicals around her residence in Gulfport, Mississippi, beginning in April of 2010, as a result of the oil spill and subsequent cleanup efforts. She claims to suffer from "abdominal cramps, pain, diarrhea, nausea, decreased sense of smell, nasal congestion, nasal discharge, dizziness, nausea, headaches; fatigue, eye burning, eye irritation, rashes, acne, boils, benign essential hypertension, sinusitis, headache, throat irritation, sinus pain, asthma flare up, wheezing, exacerbation of pre-existing asthma, decreased lung capacity, shortness of breath, nephrolithiasis, anxiety, heart palpitation, and anemia." The Plaintiff asserts claims under the general maritime law of negligence, negligence per se, and gross negligence with respect to the spill and its cleanup. Now before the Court is BP's Motion for Summary Judgment. It argues that the Plaintiff has failed to produce sufficient evidence to prove that exposure to oil or dispersants caused her alleged injuries. To date, the Plaintiff has filed no opposition to BP's motion. Judge Milazzo states the causal connection between exposure to oil or dispersants and the Plaintiff's injuries of muscle spasms, arthritis, and high blood pressure is not within the common knowledge of a layperson. In a toxic tort suit such as this one, the Plaintiff must present admissible expert testimony to establish general causation as well as specific causation. The Plaintiff's deadline for expert disclosures and reports was Aug. 22, 2022. She neither met this deadline nor moved for its extension. Additionally, to date, she has failed to oppose BP's motion or put forth any evidence of causation. Therefore, the Plaintiff cannot prove a necessary element of her claims against the Defendants, and her claims must be dismissed. For the foregoing reasons, Judge Milazzo grants the BP Parties' Motion for Summary Judgment and dismisses the case with prejudice. A full-text copy of the Court's Oct. 14, 2022 Order & Reasons is available at https://tinyurl.com/cbptwy55 from Leagle.com. BROWN UNIVERSITY: Sexual Violence Suit Claims Title IX Violations ----------------------------------------------------------------- Will Kubzansky, writing for The Brown Daily Herald, reports that a class-action lawsuit filed in August 2021 claiming that Brown University fails to protect students from sexual violence can move ahead partially, a judge ruled on Oct. 18. In March, the University filed a motion to dismiss the suit, The Herald previously reported. In May, the plaintiffs responded to the motion. U.S. District Judge John McConnell Jr. '80's Oct. 18 order grants much of the University's motion to dismiss, meaning the suit can no longer result in monetary relief for all female-identifying students who attended the University from 2018 to 2021. But the possibility of an injunction requiring the University to change its policies surrounding sexual assault and harassment remains, as do certain claims surrounding Title IX. University spokesperson Brian Clark wrote in an email to The Herald that the judge's order "dismisses the majority of the plaintiffs' claims at the outset and significantly narrows the scope of the case." In addition to eliminating the possibility of a class action lawsuit with monetary damages, the order dismissed all but one claim made under Rhode Island state law: intentional infliction of emotional distress. The judge's decision dismissed the plaintiffs' claims of negligence, negligent supervision, negligent failure to warn, train or educate and breach of fiduciary duty, according to court filings. Brown will "look at the order and highlight the victories they have," said Elizabeth Bailey, a lawyer for the plaintiffs. "But what we have standing is the primary claim, for deliberate indifference, which is the Title IX claim, and the standing claim for the injunctive class action relief. We're pleased with how the order came out." "On the remaining claims, Brown has a strong case to present to the court through the judicial process," Clark wrote. McConnell did not dismiss the plaintiffs' "post-assault" claims of deliberate indifference to sex/gender discrimination, hostile environment and heightened risk, which address actions the University takes after an assault is reported. Title IX's "deliberate indifference" standard requires that schools respond to Title IX sexual harassment in a "way that is not clearly unreasonable in light of the known circumstances," according to the Department of Education. The University's attempts to dismiss the plaintiffs' claims based on a statute of limitations defense were also not granted, according to the court order. But the order granted the University's motion to dismiss for deliberate indifference in all "pre-assault" claims surrounding the University's preventative measures, or lack thereof. The order also dismissed all erroneous outcome and retaliation claims, noting that the complaint does not support a causal connection between "the alleged erroneous outcome and gender-based bias" or support the claim that the University retaliated against the plaintiffs. Additionally, the order dismissed all claims from Chloe Burns '19, an original plaintiff, leaving five total plaintiffs on the suit: Taja Hirata-Epstein '20, Katiana Soenen '24, Emma Dennis-Knieriem '21 and two "Jane Does." The order eliminates the possibility of monetary relief in the class-action suit. "To assess monetary damages … would require a more granular assessment" of every potential recipient to "determine if their harm is even cognizable under Title IX," McConnell wrote. Still, the possibility of an injunction remains because the original complaint focuses less on specific harms from individual cases and more on "the harms that occurred from the Title IX Office's alleged mishandling" of the plaintiffs' cases, according to the order. That injunction would prevent the Title IX Office from "engaging in certain practices" and "ensure that the office receives, investigates and resolves complaints," the order reads. "It's important that female students are in an educational environment where they're free of hostility and their college has their back," said Irene Lax, another attorney for the plaintiffs. "Here, we're saying Brown doesn't have their back — we're glad the court has recognized the deficiencies that we've alleged with Brown's Title IX process." Lawyers for the plaintiffs are in the process of determining potential courses of action for an injunction. "It takes a lot of input from a lot of different actors to craft," Lax said. But the process began with the initial complaint, she added. Then, plaintiffs called for a "permanent injunction requiring compliance with Title IX and recurring external audits of Brown's Title IX compliance." "Brown's focus remains on education, prevention and encouraging a culture in which community members intervene to prevent incidents, provide support and resources, report misconduct, seek assistance and trust in a fair, impartial process to resolve complaints," Clark wrote. According to the order, plaintiffs in the suit can move ahead with a "limited amount of discovery" to determine if the class can be certified, ensuring that the different members of a potential class are similar enough for the case to proceed. "We work our way through (injunctive relief) through the end as we get more information in discovery," Bailey said. [GN] BUILDINGRITE LLC: Zambrano Sues Over Unpaid Overtime Compensation ----------------------------------------------------------------- Juan Manuel Zambrano, Jamie Mosquera, Juan Tzoc, and JOSE YANEZ, individually and on behalf of all others similarly situated v. BUILDINGRITE LLC D/B/A BUILDING RITE, BERNARDO JIMENEZ, RODRIGO BORJA, and DIEGO ORELLANA BORJA, Case No. 1:22-cv-06175 (E.D.N.Y., Oct. 13, 2022), is brought against the Defendants who have intentionally, willfully, and repeatedly harmed Plaintiffs and the FLSA Collective Plaintiffs by engaging in a pattern, practice, and/or policy of violating the Fair Labor Standards Act and New York Labor Law, including, inter alia, failing to provide their employees overtime compensation for all hours worked in excess of 40 per week. Throughout their employment with Defendants, the Plaintiffs were non-exempt employees pursuant to the FLSA and the NYLL, and were entitled to receive at least the minimum wage for all hours worked, as well as overtime compensation for all hours worked in excess of 40 per week. However, the Plaintiffs were not paid the minimum wage for all hours worked and were not paid overtime compensation of one and one-half times their regular hourly rate for all hours worked in excess of 40 per week, says the complaint. The Plaintiffs were employed by Defendants as construction workers. Building Rite provides building construction services.[BN] The Plaintiffs are represented by: Eliseo Cabrera, Esq. KATZ MELINGER PLLC 370 Lexington Avenue, Suite 1512 New York, NY 10017 Phone: (212) 460-0047 Email: edcabrera@katzmelinger.com C & N REPRODUCTIONS: Toro Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against C & N Reproductions, Inc. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. C & N Reproductions, Inc., Case No. 1:22-cv-08693 (S.D.N.Y., Oct. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. C & N Reproductions, Inc. doing business as Pedal Car -- https://www.pedalcar.com/home/ -- offers fully functional re-creations of the classic pedal cars from the 1940s, 50s, and 60s.[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 CABELA'S INC: Swaim Files Suit in S.D. New York ----------------------------------------------- A class action lawsuit has been filed against Cabela's Inc. The case is styled as Jacob Swaim, individually and on behalf of all others similarly situated v. Cabela's Inc., Case No. 9:22-cv-81568-XXXX (S.D.N.Y., Oct. 12, 2022). The nature of suit is stated as Other P.I. for Personal Injury. Cabela's Inc. -- https://www.cabelas.com/shop/en -- is an American retailer that specializes in hunting, fishing, boating, camping, shooting and other outdoor recreation merchandise.[BN] The Plaintiff is represented by: Jonathan Betten Cohen, Esq. GREG COLEMAN LAW PC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Phone: (865) 247-0080 Fax: (865) 522-0049 Email: jcohen@milberg.com CAL-MAINE FOODS: Court Junks Bell Class Suit -------------------------------------------- Cal-Maine Foods Inc. disclosed in its Form 10-Q Report for the quarterly period ended August 27, 2022, filed with the Securities and Exchange Commission on September 27, 2022, that the court dismissed the class action lawsuit captioned "Bell et al. v. Cal-Maine Foods et al.," Case No.1:20-cv-461 without prejudice and denied plaintiffs' motion to set aside or amend the judgment to amend their complaint. On April 30, 2020, the company was named as one of several defendants in "Bell et al. v. Cal-Maine Foods et al.," in the Western District of Texas, Austin Division. The defendants include numerous grocery stores, retailers, producers, and farms. Plaintiffs assert that the defendants violated the DTPA by allegedly demanding exorbitant or excessive prices for eggs during the COVID-19 state of emergency. The plaintiffs request certification of a class of all consumers who purchased eggs in Texas sold, distributed, produced, or handled by any of the defendants during the COVID-19 state of emergency. Plaintiffs seek to enjoin the company and other defendants from selling eggs at a price more than 10% greater than the price of eggs prior to the declaration of the state of emergency and damages in the amount of $10,000 per violation, or $250,000 for each violation impacting anyone over 65 years old. On December 1, 2020, the company and certain other defendants filed a motion to dismiss the plaintiffs' amended class action complaint. The plaintiffs subsequently filed a motion to strike, and the motion to dismiss and related proceedings were referred to a United States magistrate judge. On July 14, 2021, the magistrate judge issued a report and recommendation to the court that the defendant's motion to dismiss be granted and the case be dismissed without prejudice for lack of subject matter jurisdiction. On September 20, 2021, the court dismissed the case without prejudice. On July 13, 2022, the court denied the plaintiffs' motion to set aside or amend the judgment to amend their complaint. Cal-Maine Foods Inc. is into agriculture production based in Mississippi. CALIFORNIA COMMUNITY COLLEGES: Martin Files Suit in Cal. Super. Ct. ------------------------------------------------------------------- A class action lawsuit has been filed against California Community Colleges, et al. The case is styled as John Martin, Sandra Blackman, Stacey Burks, Jodi Rives, Arnie Schoenberg, Bobbi-Lee Smart, Linda Sneed, and on behalf of all others similarly situated v. California Community Colleges, Butte-Glenn Community College District, Cerritos Community College District, Los Angeles Community College District, Los Rios Community College District, MT. San Jacinto Community College District, San Diego Community College District, Shasta-Tehama-Trinity Joint Community College District, Yuba Community College District, Does 1-50, Case No. 34-2022-00328402-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Oct. 13, 2022). The case type is stated as "Other Employment - Civil Unlimited." The California Community Colleges -- https://www.cccco.edu/ -- is "a postsecondary education system" in the U.S. state of California.[BN] The Plaintiffs are represented by: Adam J. McNeile, Esq. KEMNITZER, BARRON & KRIEG, LLP 1120 Mar West St., Suite C-2 Tiburon, CA 94920 Phone: 415-632-1979 Email: adam@kbklegal.com CANADA: Indian Day School Claim Submission Deadline Set Jan. 13 --------------------------------------------------------------- NetNewsLedger reports that class Members who have not yet filed their Claims are urged to submit their Extension Request Form along with their Claim Form to receive compensation Class members who have yet to file their claim for the Federal Indian Day School Class Action Settlement are urged to submit their Extension Request Form together with their Claim Form as soon as possible as the January 13, 2023 final deadline is fast approaching. "The Settlement Agreement sets January 13, 2023 as the end of the submission process. This is the final deadline. It is important that Class Members understand that the Claims Administrator will not accept Extension Request Forms and Claim Forms after January 13, 2023, said Cam Cameron, Class Counsel Lead for the Federal Indian Day School Implementation. "There's still time and we are available to provide legal support for anyone in need of assistance with their claim." "More than half of extension requests have been related to estate matters," added Cameron. "Estate Claims are generally more complex and require specific documentation, which changes based on a number of factors, such as residing on or off-reserve, the particular provincial/territorial jurisdiction involved, and whether there is a will or not." For more information on Estate Claims please visit indiandayshcools.com. Supports available for Class Members Class Counsel supports Class Members throughout the Claims Process. Individuals can receive free legal support and help filling out their Claim Forms by calling the Gowling WLG call center at 1-844-539-3815 or emailing dayschools@gowlingwlg.com. Independent legal advice, however, may be needed if seeking to be appointed as a representative of an Estate. Mental health counselling and crisis support is available to Class Members 24 hours a day, 7 days a week through Hope for Wellness Help Line. Contact Hope for Wellness at 1-855-242-3310 or through their online chat at hopeforwellness.ca. Counselling is available in English, French, Cree, Ojibway and Inuktitut, on request. [GN] CAPFINANCIAL PARTNERS: Bishop Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against CapFinancial Partners, LLC. The case is styled as Cedric Bishop, on behalf of himself and all other persons similarly situated v. CapFinancial Partners, LLC, Case No. 1:22-cv-08733 (S.D.N.Y., Oct. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. CapFinancial Partners, LLC, doing business as CAPTRUST Financial Advisors, LLC -- https://www.captrust.com/ -- provides investment advisory services.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal CARAWAY HOME: Licea Files Suit in C.D. California ------------------------------------------------- A class action lawsuit has been filed against Caraway Home Inc., et al. The case is styled as Miguel Licea, individually and on behalf of all others similarly situated v. Caraway Home Inc., Does 1 through 25, Case No. 5:22-cv-01791 (C.D. Cal., Oct. 12, 2022). The nature of suit is stated as Other P.I. Caraway -- https://www.carawayhome.com/ -- specializes in manufacturing non-toxic ceramic cookware.[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 CASPER SLEEP: Byars FCRA Suit Removed to C.D. California -------------------------------------------------------- The case styled as Arisha Byars, individually and on behalf of all others similarly situated v. Casper Sleep Inc., Does 1 through 25, inclusive, Case No. CIVSB2215902 was removed from the San Bernardino County Superior Court, to the U.S. District Court for the Central District of California on Oct. 12, 2022. The District Court Clerk assigned Case No. 5:22-cv-01801-JGB-KK to the proceeding. The nature of suit is Other Contract. Casper Sleep -- https://casper.com/ -- is an e-commerce company that sells sleep products online and in retail locations. Headquartered in New York City.[BN] The Plaintiff is represented by: David W. Reid, Esq. Scott J. Ferrell, Esq. Victoria C. Knowles, Esq. PACIFIC TRIAL ATTORNEYS APC 4100 Newport Place Drive Suite 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: dreid@pacifictrialattorneys.com sferrell@pacifictrialattorneys.com vknowles@pacifictrialattorneys.com The Defendants are represented by: Kevin Dennis Sullivan, Esq. EPSTEIN BECKER AND GREEN PC 1925 Century Park East Suite 500 Los Angeles, CA 90067 Phone: (310) 557-9576 Fax: (310) 943-2162 Email: ksullivan@ebglaw.com CERITY PARTNERS: Bishop Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Cerity Partners LLC. The case is styled as Cedric Bishop, on behalf of himself and all other persons similarly situated v. Cerity Partners LLC, Case No. 1:22-cv-08734-GHW (S.D.N.Y., Oct. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. CapFinancial Partners, LLC, doing business as CAPTRUST Financial Advisors, LLC -- https://www.captrust.com/ -- provides investment advisory services.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal CHASE EDWARDS GALLERIES: Senior Files ADA Suit in S.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against Chase Edwards Galleries Inc. The case is styled as Milagros Senior, on behalf of herself and all other persons similarly situated v. Chase Edwards Galleries Inc., Case No. 1:22-cv-08659-JGK (S.D.N.Y., Oct. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Chase Edwards Contemporary -- https://www.chaseedwardsgallery.com/ -- is a fine art gallery located in the Hamptons on the East End of Long Island and on South County Rd. in Palm Beach, Florida.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal CHELSEA PIERS: Cruz Files ADA Suit in E.D. New York --------------------------------------------------- A class action lawsuit has been filed against Chelsea Piers L.P. The case is styled as Miriam Cruz, on behalf of herself and all others similarly situated v. Chelsea Piers L.P., Case No. 1:22-cv-06174 (E.D.N.Y., Oct. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Chelsea Piers L.P. -- https://www.chelseapiers.com/ -- provides entertainment facilities. The Company offers sports, amusement, and recreation services.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 14749 71st Ave. Flushing, NY 11367 Phone: (917) 915-7415 Email: mars@khaimovlaw.com COINBASE GLOBAL: Faces Class Suit Over Crypto User Accounts Hacking ------------------------------------------------------------------- Coin Culture writer Van Tran shared that a Federal Class Action lawsuit was launched against Coinbase to prevent the theft of crypto user accounts. The plaintiffs allege that their Coinbase digital wallets were emptied of cryptocurrency and that the exchange refused to compensate them. According to attorneys at BraunHagey & Borden LLP, Coinbase misrepresents itself as having never been hacked and having completely secure digital wallets. In actuality, however, the plaintiffs argue that the platform's account security network is very susceptible to assault and that Coinbase has routinely failed to prevent several breaches resulting in customer losses. The new breaches occurred less than a year after the exchange paid a whopping $300 million to resolve identical charges brought by the California Attorney General. Plaintiffs are dissatisfied with the company's indifference to customer losses. When plaintiffs contacted Coinbase for assistance: "It routed them through its automated complaint processing -- a recursive loop of impenetrable screens that prevented them from explaining their situation to any human being and was incapable of redressing the theft of their savings." Among other solutions, plaintiffs now demand civil and punitive damages, restitution, and injunctive relief. Coinbase user criticizes "impenetrable screens." One Coinbase account user reported that it took him many days to reach customer service after the crooks emptied his whole account before he received assistance. At this point, at least $200,000 in crypto money had been stolen from Manish Aggarwal's account, according to his legal team's proposed class-action complaint filed in federal court in San Francisco. Coinbase performed poorly in securing user accounts from illegal incursion and theft and did "an even poorer job" aiding clients whose accounts have been hacked. According to Aggarwal's attorneys, instead of contacting him to a trustworthy customer service agent who might have assisted him, the company diverted him: According to the lawsuit, in 49 minutes on April 24, hackers used 6,000 separate transactions to remove $190,000 from Aggarwal's account. Aggarwal said that Coinbase had failed to reimburse his lost cryptocurrency. He intends to represent other Coinbase investors who have experienced losses comparable to his own. This case is Aggarwal v. Coinbase Inc., 3:22-cv-04829, Northern District of California, United States District Court (San Francisco). Coinbase Faces More Legal Pressure Another class action lawsuit was filed in the US District Court for the Northern District of Georgia, alleging that Coinbase failed to protect user accounts against hacking and theft and seeking more than $5 million in damages. A putative class action suit was launched against the cryptocurrency exchange in August 2022, alleging that Coinbase failed to safeguard customer accounts, leaving them susceptible to theft and unlawful transactions. In addition, the complaint accuses Coinbase of financially injuring customers by shutting them out of their accounts permanently or for an extended period and of breaking federal law by listing securities on its trading platform. In 2021, Coinbase was the first crypto exchange to go public in the US. It is currently facing various lawsuits from dissatisfied investors. Additionally, the firm faces a potential class action lawsuit filed in New Jersey alleging that the exchange allowed US residents to trade unregistered securities. In August, a Coinbase shareholder accused the company of deceiving investors on a planned 2021 IPO. The platform is also seeking to arbitrate two other claims filed by investors. In this context, the Georgia action represents a class of over 100 people, including Georgia resident and lead plaintiff George Kattula, although his attorneys think there may be further victims. The complaint cites a 2019 instance in which the exchange reportedly waited more than six months to allow a user back into their account, a practice the lawsuit alleges the company repeated. According to the complaint, consumers must first contact Coinbase's support team; if the issue cannot be handled this way, clients must next go through the "Formal Complaint Process". After the SEC announced in July 2022 that it was investigating Coinbase crypto exchange for the alleged sale of crypto securities, these lawsuits began to pile up in 2022. The lawsuit asserts that Coinbase's failure to design and maintain adequate cybersecurity safeguards caused investors to lose access to their accounts and wallets, investments and assets in the funds. Kattula's lawsuit seeks damages over $5 million (minus his attorney's fees and costs), injunctive relief, and a binding judgement consisting of an order prohibiting the defendants from engaging in specific acts. Thefts Are Rising Even though the popularity of bitcoin, Solana, and ether has skyrocketed in recent years, the crypto market in the US remains primarily uncontrolled. It has also been often targeted by thieves. In June, hackers stole about $100 million in crypto from a blockchain bridge operated by Harmony, adding to the over $1 billion in cryptocurrency already stolen in 2022. In August, a theft targeting blockchain bridge Nomad seized $200 million in cryptocurrency. In this scenario, Celsius Network filed for bankruptcy in July 2022 after a purported $120 million attack in December. A Coinbase spokeswoman claimed that extensive procedures are taken to safeguard the security of consumer accounts at all times. According to Joe McGill, a cybersecurity expert who manages Chainabuses, the example appears to underscore the need for cryptocurrency exchanges to educate their customers on securing their accounts. In recent years, cryptocurrency exchanges have strengthened their security networks, according to McGill. Still, it remains unclear if the Coinbase case will significantly impact other crypto users, traders, and investors who want their stolen monies restored.[GN] COOPERATIEVE RABOBANK: Dismissal of Claims in Laydon Suit Upheld ---------------------------------------------------------------- In the case, JEFFREY LAYDON, on behalf of himself and all others similarly situated, Plaintiff-Appellant-Cross-Appellee v. COOPERATIEVE RABOBANK U.A., BARCLAYS BANK PLC, SOCIETE GENERALE S.A., Defendants-Appellees-Cross-Appellants, THE ROYAL BANK OF SCOTLAND GROUP PLC, UBS AG, LLOYDS BANKING GROUP PLC, UBS SECURITIES JAPAN CO., LTD., THE ROYAL BANK OF SCOTLAND PLC, RBS SECURITIES JAPAN LIMITED, Defendants-Appellees, Case Nos. 20-3626(L), 20-3775 (XAP) (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirms the district court's order: (i) dismissing Laydon's claims under the Commodity Exchange Act and the Racketeer Influenced and Corrupt Organizations Act; and (ii) denying leave to add the RICO claims. Mr. Laydon brought the putative class action against more than 20 banks and brokers, alleging a conspiracy to manipulate two benchmark rates known as Yen-LIBOR and Euroyen TIBOR. He claimed that he was injured after purchasing and trading a Euroyen TIBOR futures contract on a U.S.-based commodity exchange because the value of that contract was based on a distorted, artificial Euroyen TIBOR. Mr. Laydon filed the action in 2012. On April 15, 2013, before the district court resolved any substantive motions, the Plaintiff filed the Second Amended Complaint. He next sought leave to file the Third Amended Complaint to add RICO claims and additional Defendants. In his Third Amended Complaint, the Plaintiff brought claims under the CEA, 7 U.S.C. Section 1 et seq., and the Sherman Antitrust Act, 15 U.S.C. Section 1 et seq., and sought leave to assert claims under the RICO, 18 U.S.C. Sections 1962, 1964(c). Mr. Laydon is a U.S. resident who traded three-month Euroyen TIBOR futures contracts between Jan. 1, 2006 and June 30, 2011. This type of contract is an "agreement to buy or sell a Euroyen time deposit having a principal value of 100 million Japanese Yen with a three-month maturity commencing on a specific future date. The Plaintiff placed these trades on the Chicago Mercantile Exchange, a U.S.-based futures exchange. The district court (Daniels, J.) dismissed the CEA and antitrust claims and denied leave to add the RICO claims. The Plaintiff appeals, arguing that the district court erred by holding that the CEA claims were impermissibly extraterritorial, that he lacked antitrust standing to assert a Sherman Act claim, and that he failed to allege proximate causation for his proposed RICO claims. The Second Circuit affirms. It holds that the alleged conduct -- i.e., that the bank defendants presented fraudulent submissions to an organization based in London that set a benchmark rate related to a foreign currency -- occurred almost entirely overseas. Indeed, the Plaintiff fails to allege any significant acts that took place in the United States. His CEA claims are based predominantly on foreign conduct and are thus impermissibly extraterritorial. The district court also correctly concluded that the Plaintiff lacked antitrust standing because he would not be an efficient enforcer of the antitrust laws. Lastly, the Second Circuit agrees with the district court that the Plaintiff failed to allege proximate causation for his RICO claims. For the reasons, the judgment of the district court is, thus, affirmed. A full-text copy of the Court's Oct. 18, 2022 Order is available at https://tinyurl.com/2p8mumnh from Leagle.com. ERIC F. CITRON -- ecitron@goldsteinrussell.com -- Goldstein & Russell, P.C., Bethesda, MD (Vincent Briganti -- vbriganti@lowey.com -- Margaret MacLean -- mmaclean@lowey.com -- Lowey Dannenberg, P.C., White Plains, NY, on the brief), for Plaintiff-Appellant-Cross-Appellee Jeffrey Laydon. THOMAS G. HUNGAR -- thungar@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Washington, DC (Russell B. Balikian -- rbalikian@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Washington, DC; Mark A. Kirsch , Eric J. Stock -- estock@gibsondunn.com -- Jefferson E. Bell -- jbell@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, New York, NY, on the brief), for Defendants-Appellees UBS AG and UBS Securities Japan Co., Ltd. MARC J. GOTTRIDGE, Hogan Lovells US LLP, New York, NY (Lisa J. Fried, Benjamin A. Fleming -- benjamin.fleming@hoganlovells.com -- Hogan Lovells US LLP, New York, NY, on the brief), for Defendant-Appellee Lloyds Banking Group plc. NICOLE A. SAHARSKY -- nsaharsky@mayerbrown.com -- Mayer Brown LLP, New York, NY (Steven Wolowitz -- swolowitz@mayerbrown.com -- Andrew J. Calica -- acalica@mayerbrown.com -- Mayer Brown LLP, New York, NY, on the brief), for Defendant-Appellee-Cross-Appellant Societe Generale S.A. David R. Gelfand -- dgelfand@milbank.com -- Tawfiq S. Rangwala -- trangwala@milbank.com -- Milbank LLP, New York, NY; Mark D. Villaverde -- mvillaverde@milbank.com -- Milbank LLP, Los Angeles, CA, for Defendant-Appellee-Cross-Appellant Cooperatieve Rabobank U.A. David S. Lesser -- dlesser@kslaw.com -- King & Spalding LLP, New York, NY; Robert G. Houck, Clifford Chance US LLP, New York, NY, for Defendants-Appellees The Royal Bank of Scotland plc, The Royal Bank of Scotland Group plc, and RBS Securities Japan Ltd. CSX TRANSPORTATION: Faces $5M Suit Over Coal Facility Explosion --------------------------------------------------------------- Madeleine O'Neill, writing for The Daily Record, reports that two Curtis Bay residents have filed a proposed class-action lawsuit against CSX over a massive explosion at the company's coal terminal last year, citing health concerns related to the coal dust that blanketed the South Baltimore neighborhood after the blast. The lawsuit seeks to hold CSX accountable for the explosion, which shook Baltimore on Dec. 30 but left no one injured. The complaint, filed on Oct. 18 in U.S. District Court in Baltimore, proposes a class of plaintiffs who live near the Curtis Bay coal piers facility on Benhill Avenue. The area includes a section of the city that stretches for about a mile along Curtis Avenue and is bounded by West Bay Avenue. "Plaintiffs and the proposed class members were caused to inhale these substances that migrated from Defendant's Curtis Bay Facility onto their properties," the complaint claims. "Plaintiffs further resided in their homes where these substances, and others, settled and required and continue to require cleanup before these residences can be made safe." A judge would have to approve the group before the lawsuit could proceed as a class action. The complaint also seeks $5 million in damages and asks a judge to set up a medical monitoring fund for the members of the class. "Defendant's operation, maintenance, and staffing of the Curtis Bay Facility has caused, and continues to cause, the release of poisonous and carcinogenic chemicals onto Plaintiffs' and the class members' properties through air particles," the complaint claims. CSX officials blamed the explosion on a buildup of methane inside a tunnel at the facility. The tunnel, which is 770 feet long and used to transport coal along a conveyer belt, was inadequately ventilated, officials said. The attorney for the plaintiffs, Jonathan Nace, said Curtis Bay residents brought the suit because they had been "subjected to dangerous toxins as a result of CSX's failures." His firm, Nidel & Nace PLLC, specializes in "complex legal and scientific issues surrounding environmental and toxic injury litigation," according to its website. "CSX operates a large coal facility in a residential neighborhood but failed to act in a way to prevent their residential neighbors from being unreasonably subjected to harm from their facility," Nace said. "The Plaintiffs will hold them accountable to all the residents of Curtis Bay for their failures and seek necessary means of remediation, mitigation and medical monitoring." Baltimore City Council has held two hearings about the explosion, though CSX did not send a representative to the first hearing. Councilwoman Phylicia Porter, who represents the neighborhood, has said previously that she would seek to suspend operations at the coal terminal. On Oct. 19, Porter said she will continue to work with city and industry leaders to prioritize the community's needs. "I stand by my statement that negligence to this degree is not a mistake or an oversight; it is a choice," Porter said in a statement. CSX faces possible penalties from the Maryland Department of the Environment and the federal Occupational Safety and Health Administration. OSHA cited CSX with serious safety violations that could carry more than $120,000 in fines, and MDE sent the company a violation notice in July. The state environmental violations could also carry fines, but MDE offered CSX a chance to settle the claims in August. An MDE spokesperson said in an email that settlement discussions with the company are ongoing. OSHA did not immediately return calls requesting comment. CSX spokesperson Cindy Schild said in a statement that CSX is reviewing the lawsuit. "The Curtis Bay facility has been operating for over 140 years without an incident like this; fortunately last year's event did not result in any injuries," Schild said. "We have been working with federal and state environmental and safety officials since it occurred. CSX remains committed to the safety and health of our employees and our neighboring communities." Greg Sawtell, a co-president of the Community of Curtis Bay Association, said the organization fully supports residents' efforts to take legal action against CSX. He said the neighborhood has dealt with coal dust from the facility for years, and the December explosion was just the latest sign that the terminal poses a risk to the surrounding community. "It's a breaking point," Sawtell said. "If you don't step up and respond when a facility of that size literally blows up in your backyard and threatens your life, I don't think we can say we have a community, and the concern is we won't have a community if we don't take a stand right now." [GN] DH AND SONS: Li Sues Over Unpaid Minimum, Overtime Compensation --------------------------------------------------------------- Guano Li, Charlie Chen, Ghazal Hassan, snd Sanja Y. Gurung, on behalf of themselves and others similarly situated v. DH AND SONS INC. d/b/a SUSHI ISHIKAWA, DON Q. PHAM, THERESA PHAM, and ANH NGUNYEN, Case No. 1:22-cv-08701 (S.D.N.Y., Oct. 13, 2022), is brought alleging violations of the Fair Labor Standards Act and the New York Labor Law, arising from the Defendants' failure to pay proper minimum wages, overtime compensation, and "spread of hours" premium, the Defendants' misappropriation of the Plaintiffs' tips, and requiring the Plaintiffs to participate in an unlawful tip sharing arrangement with other of the Defendants' employees who do not customarily receive tips as part of their employment. The Defendants have willfully and intentionally committed widespread violations of the FLSA and New York Labor Law by engaging in a pattern and practice of failing to pay tipped employees proper minimum wages, overtime compensation, and by misappropriating employee tips and requiring tipped employees to participate in an unlawful tip sharing arrangement. In addition to failing to pay Plaintiffs proper minimum wages and overtime compensation, Defendants improperly and unlawfully misappropriated a certain portion of the tips afforded to their tipped employees, including the Plaintiffs. More specifically, the Defendants created an unlawful tip pooling/sharing arrangement for its tipped employees. The Defendants' tip pooling/sharing arrangement included a "point system," whereby each of the Defendants' tipped employees received a percentage share of the tips received by customers, says the complaint. The Plaintiffs are hired by the Defendants to work as a waiters/servers at the Restaurant. DH AND SONS INC., owns and operates a sushi restaurant and bar doing business as Sushi Ishikawa located in New York City.[BN] The Plaintiffs are represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 60 East 42nd Street - 40th Floor New York, NY 10165 Phone: (212) 209-3933 Fax: (212) 209-7102 Email: info@jepclaw.com EARTHBOUND HOLDING: Lawal Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Earthbound Holding, LLC. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Earthbound Holding, LLC, Case No. 1:22-cv-08667-ER (S.D.N.Y., Oct. 12, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Earthbound Holding -- https://www.earthboundtrading.com/ -- offers bohemian product assortment ranging from home decor to jewelry, apparel and accessories.[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 EIGHT ORANGES: Class of Tipped Workers Certified in Mangahas Suit ----------------------------------------------------------------- In the case, JESSY MANGAHAS, on behalf of herself and all others similarly situated, Plaintiff v. EIGHT ORANGES INC., et al., Defendants, Case No. 22-cv-4150 (LJL) (S.D.N.Y.), Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York grants the Plaintiff's motion for conditional class certification. Ms. Mangahas, along with the 14 opt-in Plaintiffs, move the Court for an order conditionally certifying the action as a collective action, and for court-authorized notice and expedited discovery under the Fair Labor Standards Act of 1947, 29 U.S.C. Section 216(b). The Plaintiff is an employee of Eight Oranges located at 13 St. Marks Place, New York, NY and Chibaola Inc. located at 152 Second Avenue, New York, NY. She began working for the Restaurants as a front-of-house worker in approximately 2018 and still works for them. The Bao is a Shanghai-style xiao long bao soup dumpling restaurant. It is owned and operated by Eight Oranges, Richard Lam, and Joanne Hong Bao. The Bao is the trade name for Eight Oranges. Uluh is the trade name for Chibaola and is owned and operated by Chibaola, Lam, and Hong Bao. The Plaintiff brings the case as a putative class action and a collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 216(b), on behalf of a collective or class of servers, runners, bussers, bartenders, and barbacks (collectively, "Tipped Workers") who worked at The Bao and Uluh. She asserts FLSA collective action claims on behalf of Tipped Workers employed at the Restaurants from May 20, 2019 to the date of final judgment in this matter and New York Labor Law ("NYLL") class action claims on behalf of Tipped Workers employed at the Restaurants between Oct. 5, 2015 and the date of final judgment in this matter. The Plaintiff alleges that the Defendants violated the requirements under FLSA and the NYLL pursuant to which they could take a tip credit towards hourly rates paid to Tipped Workers. As some of these duties are not related to her duties as a Tipped Worker, she and similarly situated Tipped Workers allege that they are engaged in dual occupations for which they are entitled to full minimum wage. The Complaint alleges a slew of other labor law violations including that the Defendants would take unlawful deductions from Tipped Workers' compensation. The Plaintiff alleges that the Defendants' conduct violated (1) the minimum wage provisions of the FLSA, 29 U.S.C. Section 201, et seq. (First Cause of Action); (2) the overtime wage provisions of the FLSA (by failing to pay the Plaintiff and members of the FLSA Collective at a rate of 1.5 times the full minimum wage for hours in excess of 40 per week) (Second Cause of Action); (3) the misappropriated tip provisions of the FLSA (Third Cause of Action); (4) the minimum wage provisions of the NYLL (Fourth Cause of Action); (5) the overtime wage provisions of the NYLL (Fifth Cause of Action); (6) the tip misappropriation provisions of the NYLL (Sixth Cause of Action); (7) provisions of the NYLL that required reimbursement for the purchase of the t-shirts (Seventh Cause of Action); (8) the spread of hours provisions of the NYLL (Eighth Cause of Action); (9) the annual time of hire wage notice provisions of the NYLL (Ninth Cause of Action); and (10) the wage statement provisions of NYLL (Tenth Cause of Action). Mangahas also brings individual claims for retaliation under FLSA (Eleventh Cause of Action), and under NYLL (Twelfth Cause of Action). The action was initiated by complaint filed on May 20, 2022. On Aug. 18, 2022, the Plaintiff filed the operative Amended Complaint. All the Defendants, except Hong Bao, sued individually, have answered. Hong Bao filed a motion to dismiss the Amended Complaint against her pursuant to Federal Rule of Civil Procedure 12(b)(6). By opinion and order issued simultaneously with the present Opinion and Order, the Court denies that motion. On Sept. 16, 2022, the Plaintiff filed the motion for conditional certification of the case as a collective action. On Sept. 26, 2022, the Defendants filed their memorandum of law in opposition to the motion to certify the case as a collective action. The Plaintiff moves for conditional certification of a FLSA collective comprised of all Tipped Workers who work or who have worked at The Bao from Sept. 16, 2019 to present. She also asks for: (i) their proposed form of notice to be approved; (ii) for notice to be sent by mail, email, and text message to all members of the collective; (iii) that notice be translated into Chinese; (iv) that consents be sent to the Plaintiff's counsel who will file the notices promptly with the Court; (v) that the Court applies the three-year statute of limitations for willful violations in determining to whom notice should be provided; (vi) that the Defendants be ordered to provide to the Plaintiff a computer-readable list of the full names, last-known residence addresses, telephone numbers, last-known email addresses, dates of employment and location(s) worked for all members of the collective; and (vii) that the Court applies equitable tolling and toll the statute of limitations as of the date of the filing of the Plaintiff's motion. The Defendants argue that conditional certification should be denied because (i) the Plaintiff's application is based on hearsay and fails to provide specifics of the duties of Defendants' employees or how much actual time was spent on non-tip producing work; (ii) the named plaintiffs are not similarly situated to the proposed collective; (iii) there should be no reference to the 80/20 rule in the proposed notice because the Plaintiffs have provided no specific times spent on non-tip producing work, and the three-year notice period is inappropriate because the Defendants did not willfully violate FLSA; and (iv)sending notice by email and text message is inappropriate, a reminder letter is not justified, and equitable tolling is not justified. Judge Liman opines that (i) the Plaintiff has offered evidence of a uniform practice engaged in by the Defendants across the two integrated Restaurants that affected all Tipped Workers similarly and that, if proven, would violate the FLSA; (ii) the proposed notice is fair and balanced and informs proposed members of the collective of their rights without reflecting any prejudgment by the Court as to the merits of the claims; (iii) the notice period is appropriate; (iv) text notice will be permitted; (v) the Plaintiff must include after the penultimate sentence in the reminder notice language that "the Court neither encourages nor discourages participation in the lawsuit"; (vi) the Plaintiff's application for an order equitably tolling the time for a putative member of the FLSA collective to file a consent or to join this action is denied. Judge Liman has considered the remainder of the Plaintiff's requests including that its proposed form of notice be approved, that notice be translated into Chinese, that consents be sent to the Plaintiffs' counsel, and that the Defendants be ordered to provide to the Plaintiff a computer-readable list of the full names, last known residence addresses, telephone numbers, last known email addresses, dates of employment, and locations worked for all members of the collective. The Defendants do not object to those requests except as otherwise stated. The Court requires the Plaintiff's counsel to file a consent with the Clerk of the Court by the conclusion of the business day immediately following its receipt by the Plaintiff's counsel. The consent form should be revised to reflect that the Plaintiff is consenting to counsel's representation and right to make decisions with respect to the FLSA claims in the litigation and will be bound by any adjudication of those FLSA claims and that the firm "may" petition for attorney's fees in the amount of the greater of the lodestar of one-third of the gross settlement or judgment amount (not that it "will" so petition the Court). By separate order, the Court will disseminate to the parties a markup of the mail notice that corrects for certain typographical errors. It otherwise approves the Plaintiff's requests. The motion for conditional certification of this case as a collective action under FLSA is granted, the Plaintiff's counsel is authorized to disseminate notice in accordance with the Opinion and Order, and the Defendants will produce to the Plaintiff's counsel the contact information required by this Opinion and Order within 14 days. The Clerk of Court is directed to close Dkt. No. 36. A full-text copy of the Court's Oct. 18, 2022 Opinion & Order is available at https://tinyurl.com/yes3d8uj from Leagle.com. EIGHT ORANGES: Court Denies Hong Bao's Bid to Dismiss Mangahas Suit ------------------------------------------------------------------- In the case, JESSY MANGAHAS, on behalf of herself and all others similarly situated, Plaintiff v. EIGHT ORANGES INC., et al., Defendants, Case No. 22-cv-4150 (LJL) (S.D.N.Y.), Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York denies Individual Defendant Joanne Hong Bao's motion to dismiss the First Amended Complaint. Ms. Hong Bao moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Complaint against her for failure to state a claim for relief. Ms. Mangahas is an employee of defendant Eight Oranges located at 13 St. Marks Place, New York, NY, and Chibaola Inc. located at 152 Second Avenue, New York, NY. She began working for the Restaurants as a front-of-house worker in approximately 2018 and still works for them. The Bao is a Shanghai-style xiao long bao soup dumpling restaurant. It is owned and operated by Eight Oranges, Richard Lam, and Hong Bao. The Bao is the trade name for defendant Eight Oranges. Uluh is the trade name for Chibaola and is owned and operated by Chibaola, Lam, and Hong Bao. The Restaurants are located within blocks of one another in lower Manhattan and share the same address for service of process (13 St. Mark's Place). During all relevant times, the two Restaurants have had the same employment policies, practices, and procedures for all Tipped Workers. The Plaintiff brings the case as a putative class action and a collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 216(b), on behalf of a collective or class of servers, runners, bussers, bartenders, and barbacks (collectively, "Tipped Workers") who worked at The Bao and Uluh. She asserts FLSA collective action claims on behalf of Tipped Workers employed at the Restaurants from May 20, 2019 to the date of final judgment in this matter, and New York Labor Law ("NYLL") class action claims on behalf of Tipped Workers employed at the Restaurants between Oct. 5, 2015 and the date of final judgment in this matter. The Plaintiff alleges that the Defendants violated the requirements under the FLSA and NYLL pursuant to which they could take a tip credit towards hourly rates paid to Tipped Workers. As some of these duties are not related to their duties as a Tipped Worker, the Plaintiffs allege that they are engaged in dual occupations for which they are entitled to full minimum wage. The Complaint also alleges a slew of other labor law violations including that the Defendants would take unlawful deductions from Tipped Workers' compensation. The Defendants required Tipped Workers to purchase their t-shirt uniforms, failed to pay Tipped Workers the spread of hours premium pay required by the NYLL, and failed to provide Tipped Workers with proper annual wage notices or accurate wage statements required by the NYLL. The Plaintiff alleges that the Defendants' conduct violated (1) the minimum wage provisions of the FLSA, 29 U.S.C. Section 201, et seq. (First Cause of Action); (2) the overtime wage provisions of the FLSA (by failing to pay the Plaintiff and members of the FLSA Collective at a rate of 1.5 times the full minimum wage for hours in excess of 40 per week) (Second Cause of Action); (3) the misappropriated tip provisions of the FLSA (Third Cause of Action); (4) the minimum wage provisions of the NYLL (Fourth Cause of Action); (5) the overtime wage provisions of the NYLL (Fifth Cause of Action); (6) the tip misappropriation provisions of the NYLL (Sixth Cause of Action); (7) provisions of the NYLL that required reimbursement for the purchase of the t-shirts (Seventh Cause of Action); (8) the spread of hours provisions of the NYLL (Eighth Cause of Action); (9) the annual time of hire wage notice provisions of the NYLL (Ninth Cause of Action); and (10) the wage statement provisions of the NYLL (Tenth Cause of Action). Mangahas also brings individual claims for retaliation under the FLSA (Eleventh Cause of Action), and under the NYLL (Twelfth Cause of Action). The action was initiated by complaint filed on May 20, 2022. On Aug. 18, 2022, the Plaintiff filed the operative First Amended Complaint. All the Defendants, except Hong Bao, sued individually, have answered. Hong Bao filed her motion to dismiss on Sept. 1, 2022. On Sept. 26, 2022, the Plaintiff filed her memorandum in opposition to the motion to dismiss. Hong Bao did not file a reply in support of her motion with the Court. Ms. Hong Bao argues that the Complaint contains insufficient allegations to demonstrate that she is an employer under either the FLSA or the NYLL. She argues that Hong Bao did not have the ability to hire and fire employees, she did not control or supervise the work schedules or conditions of the employees, she did not have the authority to determine the rate and method of payment for the employees, she did not maintain the employment records for either Eight Oranges or Chibaola, she was not a shareholder of either entity, and she did not participate in the management of the Restaurants. Judge Liman opines that Hong Bao's arguments are without merit. To start, he says none of the supplemental evidence is properly before the Court on this motion to dismiss. In particular, there is no "clear, definite, and substantial reference" to the affidavits in the Complaint such that they could be deemed incorporated by reference. Judge Liman also rejects the claim that because Hong Bao's husband and two others were managers of the Restaurants and employers within the meaning of the FLSA and NYLL (as the affidavits claim) that the Plaintiff is necessarily not an employer. He says neither the FLSA nor NYLL limit personal liability to a single individual employer. That Lam may have been employer thus does not, as a matter of law, preclude that Hong Bao was also an employer. The motion to dismiss is denied. The Clerk of Court is respectfully directed to close Dkt. No. 28. A full-text copy of the Court's Oct. 18, 2022 Opinion & Order is available at https://tinyurl.com/3rtrdkud from Leagle.com. ENSEMBLE FINANCIAL: Bishop Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Ensemble Financial Inc. The case is styled as Cedric Bishop, on behalf of himself and all other persons similarly situated v. Ensemble Financial Inc., Case No. 1:22-cv-08735 (S.D.N.Y., Oct. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ensemble Financial, Inc. -- https://www.ensemblefinancial.com/ -- is a boutique investment management and financial planning practice located in Midtown Manhattan.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal ENSTROM CANDIES: Lawal Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Enstrom Candies, Inc. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Enstrom Candies, Inc., Case No. 1:22-cv-08706 (S.D.N.Y., Oct. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Enstrom Candies -- https://enstrom.com/ -- is the home of World Famous Almond Toffee and other fine confections, including chocolate assortments, truffle assortments, and turtles.[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 FARRIOR CORP: Class Settlement in Nooney Suit Gets Final Approval ----------------------------------------------------------------- In the case, TIMOTHY NOONEY, individually and on behalf of similarly situated persons, Plaintiff v. FARRIOR CORPORATION and MARK FARRIOR, Defendants, Civil Action No. 5:21-cv-00146-D (E.D.N.C.), Judge James C. Denver, III, of the U.S. District Court for the Eastern District of North Carolina, Western Division, grants the Plaintiff's Unopposed Motion for Final Approval of Class and Collective Action Settlement Agreement. The Court finally certifies the collective action pursuant to Section 216(b) of the FLSA and the class action pursuant to Federal Rule of Civil Procedure 23 for settlement purposes only. He grants final approval of the Agreement. Judge Denver approves (i) the distribution of the Net Settlement Fund to the Participating Class Members; (ii) a service award payment in the amount specified in the Agreement to Nooney; (iii) the payment of the actual costs of the Settlement Claims Administrator in the amount specified in the Declaration of Jeffrey D. Johnson and advanced litigation costs to the Class Counsel in the amount set forth in the Declaration of J. Forester, not to exceed the amount of the Administrative Fund set forth in the Agreement; and (iv) the attorneys' fees to the Collective Counsel in an amount not to exceed one-third of the Total Settlement Fund. Judge Denver permanently enjoins all Settlement Class Members (other than those who filed timely and valid Exclusion Letters) and the Class Representative from prosecuting against the Defendants and the Released Parties any and all of the Settlement Class Members' Released Claims. A judgment is entered dismissing the case with prejudice in accordance with the terms of the Agreement. A full-text copy of the Court's Oct. 14, 2022 Order is available at https://tinyurl.com/yc53zfnz from Leagle.com. FIRST CHOICE: Bagnall Sues Over Healthcare Staff's Unpaid Wages --------------------------------------------------------------- JILL BAGNALL, on behalf of herself and others similarly situated, Plaintiff v. FIRST CHOICE HOME HEALTH OF OHIO INC., Defendant, Case No. 1:22-cv-01853-BMB (N.D. Ohio, Oct. 13, 2022) challenges policies and practices of Defendant that violated the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. First Choice Home Health of Ohio Inc. is a home health care service provider in Cleveland, Ohio. The Plaintiff and other similarly situated employees were employed by Defendant as in-home healthcare providers. The complaint asserts that the Defendant has a practice and policy of not paying its healthcare staff's for all time worked and all overtime compensation earned at a rate of one and one-half times their regular rate of pay for all hours worked over 40 each workweek. The Defendant also fails to pay wages on a semimonthly basis beyond their regularly scheduled payday, says the suit.[BN] The Plaintiff is represented by: Jeffrey J. Moyle, Esq. NILGES DRAHER LLC 1360 E. 9th Street, Suite 808 Cleveland, OH 44114 Telephone: (216) 230-2955 Facsimile: (330) 754-1430 E-mail: jmoyle@ohlaborlaw.com - and - Shannon M. Draher, Esq. NILGES DRAHER LLC 7034 Braucher Street NW, Suite B North Canton, OH 44720 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 E-mail: sdraher@ohlaborlaw.com FORD-UAW RETIREMENT: McGlynn Sues Over ERISA Violations ------------------------------------------------------- Louis Edward McGlynn, on his own behalf and on behalf of similarly situated participants v. FORD-UAW RETIREMENT PLAN and FORD MOTOR COMPANY, Case No. 2:22-cv-12462-LVP-JJCG (E.D. Mich., Oct. 13, 2022), is brought under the Employee Income Security Act of 1974, as amended to declare his rights under the terms of the Ford-UAW Retirement Plan (the "Plan") and to enforce his rights and remedy violations of the Plan and ERISA. By virtue of his employment, Mr. McGlynn became vested in the Plan and entitled to accrue benefits under the Plan. The Plan was established and maintained pursuant to one or more collective bargaining agreements between Ford and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. On May 27, 2010 Mr. McGlynn was injured on the job and suffered physical limitations as a result of which he was unable to work for a significant period of time. Mr. McGlynn was absent from work on approved medical leave due to his injuries from on or about November 17, 2010 through January 10, 2014. On November 21, 2014, Mr. McGlynn was injured in a work-related automobile accident when he was rear ended by another car while he was test driving a Ford vehicle. Mr. McGlynn has been on approved medical leave since January 1, 2015 as a result of the November 21, 2014 accident and remains on medical leave of absence as a result of his work-related injury. However, despite the facts that: 1) Mr. McGlynn was and remains on an approved medical leave of absence from May 27, 2010 through in January 10, 2014 and from January 1, 2015 to date as a result of work related injuries; 2) Mr. McGlynn received workers' compensation benefits for the periods he was on approved medical leave from May 2010 to January 2014 and again from January 1, 2015 to the present; 3) the Plan provides that an employee who is absent from work because of occupational injury or disease incurred in the course of such employee's employment with the Company and on account of such absence receives Workers' Compensation while on Company-approved leave of absence, the employee is entitled to future service credit based on forty hours a week during such absence and 4) despite repeated efforts by Mr. McGlynn to obtain the service credit he is entitled to, Defendants have failed to provide Mr. McGlynn with credited service during all of the periods of his approved absences while receiving workers compensation benefits. The last summary Defendants provided to Mr. McGlynn purporting to set forth his credited service asserts that he is only credited with approximately 15 years of credited service rather than the more than 23 years of credited service that Mr. McGlynn is entitled to receive under the Plan. The Defendants' failure to provide Mr. McGlynn with future service credit under the Plan during a portion of the period May 27, 2010 through in or around January 10, 2014 and for most of the period from January 1, 2015 to date violates the terms of the Plan and harms Mr. McGlynn, including, inter alia, by resulting in less credited service than Mr. McGlynn is entitled to receive under the Plan, thereby lowering his monthly retirement benefits under the Plan upon his retirement. Ford denied Mr. McGlynn's claim for benefits by letter dated May 6, 2021. Ford's claim denial contains no reference to the Plan provisions governing accrual of credited service during periods of receipt of workers compensation, erroneously claims his request for workers compensation for his 2012 injury was not granted, fails to acknowledge his subsequent receipt of workers compensation for his 2014 injury and fails to provide any description of what additional material or information was necessary for Mr. McGlynn to perfect the claim nor an explanation of why such material is necessary. By letter dated July 1, 2021, Mr. McGlynn timely appealed the denial of his benefits. By letter dated September 1, 2021 that is postmarked October 11, 2021, Ford acknowledged Mr. McGlynn's appeal and stated that it needed additional time to research his claim and that he would be sent a "written response after the next Board meeting." Having received no response to his appeal Mr. McGlynn made several inquiries by phone including on or about September 10, 2021, October 22, 2021, January 4, 2022 and January 5, 2022. In violation of the Plan and ERISA and regulations thereunder, the Plan Administrator never responded to Mr. McGlynn's appeal and, to the best of Mr. McGlynn's knowledge, has failed adjust his service credit to the correct amount of service. Mr. McGlynn fully exhausted all required administrative remedies, says the complaint. The Plaintiff is a "participant" in the Plan and was and is employed by Ford at the Kentucky Truck Plant for more than 23 years, from May 1999 to the present. Ford UAW Retirement Plan is a defined benefit "employee pension benefit plan" within the meaning of the ERISA.[BN] The Plaintiff is represented by: Robert B. June, Esq. LAW OFFICES OF ROBERT JUNE, P.C. 415 Detroit Street, 2nd Floor Ann Arbor, MI 48104-1117 Phone: (734) 481-1000 Email: bobjune@junelaw.com FRICKER'S USA: Fails to Pay Minimum Wages under FLSA and OMFWSA --------------------------------------------------------------- ALEXUS HYDE, on behalf of herself and all others similarly situated v. FRICKER'S USA, LLC and FRICKER'S NORTH COLLEGE HILL, LLC, Case No. 2:22-cv-03703-EAS-CMV (S.D. Ohio, Oct. 14, 2022) sues over Defendants' practices and policies of not paying tipped, non-exempt employees, the applicable minimum wage for all of the hours worked in violation of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. Allegedly, Defendant Fricker's maintained a policy and practice whereby Plaintiff and other tipped employees were required to spend a substantial amount of time performing non-tipped worked. The Plaintiff and other similarly situated tipped-employees frequently spent more than 20% of their time (30 minutes to 2 hours before and/or after their shift) performing non-tip generating duties, during which they did not interact with customers and could not earn tips, says the suit. By requiring the Plaintiff and other tipped employees to perform non-tipped work unrelated to their tipped occupation, and excessive amounts of non-tipped worked even if related to their tipped occupation, while being paid the sub-minimum tip credit wage rate, the Plaintiff and other servers and bartenders were illegally undercompensated for their work, the suit added. FRICKER'S is a family-owned restaurant chain that owns and operates restaurants in Ohio, Indiana, and Michigan under the trade name "Fricker's."[BN] The Plaintiff is represented by: Matthew S. Grimsley, Esq. Anthony J. Lazzaro, Esq. Lori M. Griffin, Esq. Alanna Klein Fischer, Esq. THE LAZZARO LAW FIRM, LLC The Heritage Building, Suite 250 34555 Chagrin Boulevard Moreland Hills, OH 44022 Telephone: (216) 696-5000 Facsimile: (216) 696-7005 E-mail: matthew@lazzarolawfirm.com anthony@lazzarolawfirm.com lori@lazzarolawfirm.com alanna@lazzarolawfirm.com GAME-SET-MATCH: Lawal Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Game-Set-Match, Inc. The case is styled as Rafia Lawal, on behalf of herself and all others similarly situated v. Game-Set-Match, Inc., Case No. 1:22-cv-08710-MKV (S.D.N.Y., Oct. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Game-Set-Match, Inc. -- https://shop.tennisdenver.net/ -- is Colorado's premier racquet and paddle sports store.[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 GEO GROUP: Must Face Class Action Over ICE Contract Violations -------------------------------------------------------------- Tony Gorman, writing for CPR, reports that a federal court ruling has paved the way for a class-action lawsuit to proceed against a private company that owns and operates detention facilities across the U.S. -- including one in Aurora. The GEO Group argued in the case that it was protected under a federal law that protects government contractors from facing lawsuits while carrying out federal directives. The U.S. District Court of Colorado determined that GEO could not benefit from that law. Court documents also showed that the judge ruled that GEO had not performed what was directed by U.S. Immigration and Customs Enforcement and went beyond its contract in requiring detainees to perform certain tasks like cleaning the commons area. "The record shows that GEO has not simply performed as ICE directed," wrote Senior U.S. District Judge John L. Kane. "GEO went beyond its contract with ICE in requiring detainees to clean up all common areas and after other detainees under the threat of segregation." The court also denied the motion to decertify a 40,000-person lawsuit against GEO alleging forced labor and unjust enrichment. The court ruling is the latest of several ongoing issues with the Aurora facility. Federal immigration officials say a Nicaraguan man died on Oct. 14 while in ICE custody at the Aurora Facility. Melvin Ariel Calero-Mendoza had been at the detention center since May and was awaiting proceedings to remove him from the country. The 39-year-old was hospitalized at the University of Colorado Hospital before he died. His cause of death is under investigation. It is the third death at the facility in four decades. [GN] GRANDPARENT GIFT: Toro Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against The Grandparent Gift Co., Inc. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. The Grandparent Gift Co., Inc., Case No. 1:22-cv-08709 (S.D.N.Y., Oct. 13, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Grandparent Gift Co., Inc. -- https://www.grandparentgiftcompany.com/ -- offers unique gifts, ornaments, and picture frames to commemorate special family occasions and milestones.[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 JERRY W. BAILEY: Weldy's $70K Atty.'s Fee Award in Koch Suit Upheld ------------------------------------------------------------------- In the case, DANIEL KOCH, et al., Plaintiffs-Appellants v. JERRY W. BAILEY TRUCKING, INC., and ESTATE OF JERRY W. BAILEY, Defendants-Appellees, Case No. 21-2952 (7th Cir.), the U.S. Court of Appeals for the Seventh Circuit affirms the district court's award of $70,000 in attorney's fees to the truck drivers' lawyer, Ronald Weldy, Esq. The Appellants are truck drivers who obtained settlements from their former employer for violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 216(b), and Indiana wage laws, IND. CODE Section 22-2-5, -9. Jerry W. Bailey provides services for hauling debris, rocks, and other materials. During the time relevant to this case, the company owned about 40 dump trucks, all of them in use during peak seasons. Two drivers sued the company and its owners, claiming that the Defendants violated the FLSA and Indiana wage laws by failing to pay drivers for time spent working before and after hauling jobs. The employees who launched this litigation proposed to represent a collective action under 29 U.S.C. Section 216(b) for the federal wage claims, and a class action under Rule 23 of the Federal Rules of Civil Procedure for the state-law claims. The court conditionally certified an FLSA collective and certified a Rule 23 class. But almost four years later, and after the parties had already briefed cross-motions for summary judgment, the court granted the Defendants' motion to decertify the class and collective. After decertification, the court struck as moot the existing motions for summary judgment. The two employees who initiated the suit then amended their complaint to add nine Plaintiffs who had been members of the class, collective, or both, after which the parties engaged in a second round of summary judgment briefing. The court granted partial summary judgment for the employees, concluding that the company had violated federal and state wage laws. Following the court's ruling on summary judgment, the parties negotiated settlements for each of the remaining Plaintiffs and submitted them to the court for approval. The employees' settlements reflected a full recovery of claimed damages for the two-year period preceding suit, along with a partial recovery for the third year of damages that would have been available if the employees proved a willful violation of the FLSA. The court approved the settlements, concluding that an immediate partial recovery outweighed the time and risk of trial. The employees petitioned for an award of more than $200,000 in attorney's fees pursuant to the FLSA's fee-shifting provision. Their request reflected a billing rate of $450 per hour for about 416 hours of work performed by Weldy, plus additional hours billed by Weldy's associate at $200 per hour and paralegal at $150 per hour. The district court granted in part the fee petition, awarding only $70,000. Shortly thereafter, the employees moved for reconsideration under Rules 52(b) and 59(e). But the district court concluded that the employees had waived any objection to the size of the fee award when they stipulated to the Defendants' notice of satisfaction. The employees appeal the district court's award of attorney's fees, as well as its order denying reconsideration. They contend that the district court erred by limiting the time that Weldy could reasonably bill for various litigation tasks. The disputed billable hours fall into three categories: Time spent drafting briefs on the adequacy of class counsel, creating damages spreadsheets, and briefing summary judgment motions. The Seventh Circuit holds that (i) the Defendants should not foot the bill for Weldy's time spent defending his disciplinary history, particularly when he was ultimately unsuccessful in maintaining certification; (ii) the Defendants should not have to pay extra for time Weldy's office spent remedying its own mistakes; and (iii) the district court reasonably concluded that the briefing was not complex enough as to justify the billed hours. The employees next contend that the district court erred when it concluded that their lawsuit was only partially successful. They argue that Weldy obtained excellent settlements for each of the plaintiffs who joined the suit after decertification. The Seventh Circuit holds the district court properly exercised its discretion when decreasing the fee award to account for the employees' relative lack of success. A prevailing plaintiff is entitled to only "reasonable attorney's fees" under the FLSA. The Seventh Circuit is also not persuaded by the employees' argument that the district court's reduction of the lodestar represented a misunderstanding of the facts. It says the award was still more in fees than the total amount recovered by the Plaintiffs themselves. For these reasons, the district court's order granting in part the employees' request for attorney's fees is affirmed. A full-text copy of the Court's Oct. 18, 2022 Order is available at https://tinyurl.com/3wmwhrvn from Leagle.com. LIMITLESS PCS: Horn Seeks Mobile Associates' Minimum, OT Wages -------------------------------------------------------------- Haley Horn, individually and on behalf of all others similarly situated v. Limitless PCS, Inc. c/o Registered Agents, Inc. 6545 Market Avenue N., Ste. 100 North Canton, OH 44721, Case No. 2:22-cv-03703-EAS-CMV (S.D. Ohio, Oct. 14, 2022) seeks to recover unpaid minimum and overtime wages in violation of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The Plaintiff was a full-time employee of Limitless who worked as a mobile associate from June 29, 2022 through July 27, 2022. The Plaintiff and the Class contend that they typically spend 15-30 minutes or more each shift that goes completely uncompensated. Accordingly, the Defendant requires them to supply their own phones to interact on Slack and otherwise conduct their jobs. However, Limitless allegedly fails to reimburse them for such required equipment. The Defendant requires Plaintiff, the Collective Members and the Class Members to kickback business losses to Defendant. For example, the Defendant deducted approximately $430.00 from Plaintiff's pay when it determined that a phone was sold to a customer based upon a misinterpretation of a promotion, says the suit. Limitless PCS Inc. is an authorized dealer for Metro PCS, the Nation's leading prepaid wireless provider riding on the T-mobile network.[BN] The Plaintiff is represented by: Michael L. Fradin, Esq. FRADIN LAW 8 N. Court St. Suite 403 Athens, OH 45701 Telephone: (847) 986-5889 Facsimile: (847)-673-1228 E-mail: mike@fradinlaw.com -and- James L. Simon, Esq. SIMON LAW CO. 5000 Rockside Road Liberty Plaza Suite 520 Independence, OH 44131 Telephone: (216) 525-8890 E-mail: james@simonsayspay.com MEKRUTH INC: $500K in Attys.' Fees and Costs Awarded in Thomas Suit ------------------------------------------------------------------- Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York approves the request for attorneys' fees and costs in the amount of $500,000 in the lawsuit styled QWAME THOMAS, individually and on behalf of all others similarly situated, Plaintiffs v. MEKRUTH INC., et al., Defendants, Case No. 19-cv-01566 (LJL) (S.D.N.Y.). The Plaintiff moves for approval of an application for attorneys' fees and costs. The Court previously approved the settlement of this wage and hour class action lawsuit brought under the Fair Labor Standards Act and the New York Labor Law finding that its terms were fair, reasonable, and adequate to the parties and to the class members and was the product of arms-length negotiations between experienced counsel. At the time, the Honorable Alison J. Nathan presided. The case was reassigned to Judge Liman following Judge Nathan's ascension to the United States Court of Appeals for the Second Circuit. The settlement established a Settlement Fund in the amount of $1.5 million to be paid to the approximately 282 class members, as well as for service awards, settlement administration costs, and attorneys' fees and costs. The terms of the settlement provided that members of the class would have 180 days to cash their settlement checks and that if they did not cash their check by the end of the 180-day period, the check would be void and a stop payment issued, and the remaining value of any uncashed or unclaimed payment would revert to the Defendants. The Court ordered $500,000 from the Settlement Fund to be set aside for attorneys' fees and costs and ordered the parties to brief the reasonableness of the request for costs and fees following the 180-day period under the settlement for cashing class settlement payment checks. At the fairness hearing on the settlement, the Court expressed concern that not all of the members of the class would cash the settlement checks they were sent. The Court stated that it was not opposed necessarily to awarding fees on the full amount of the settlement even if some amount is reverted back, but expressed the desire to wait and see how many settlement checks were cashed to determine if the fee request was fair and reasonable. The Class counsel now reports that class members have cashed checks amounting to approximately 96% or $670,821.52 of the $698,257.37 net settlement fund, figures reached after deducting federal and state withholdings. Of the 283 checks distributed, class members cashed 215 checks, 68 went uncashed and 34 were undeliverable, although 8 of the 34 undeliverable checks were eventually cashed in part as a result of the efforts of Class Counsel, who hired an investigator to find contact information for class members, who had not cashed checks. In other words, Judge Chen opines, the acceptance rate falls within the range where Judge Nathan indicated she was prepared to approve the fee award. The Class counsel asks that the Court approve counsel's fees and costs in the amount of $500,000. That figure constitutes 1/3 of the gross settlement amount and represents a 2.44 multiplier off of a lodestar of $204,635. The Court has considered the application under the factors set forth in Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 50 (2d Cir. 2000). The request satisfies those factors. Experienced counsel expended significant time on a case that carried risk and achieved a very good result for the class and the fee is reasonable and within the range approved by courts in this District. The request for fees and costs of $500,000, accordingly, is approved. A full-text copy of the Court's Order dated Oct. 10, 2022, is available at https://tinyurl.com/tck5b95p from Leagle.com. MICROSOF CORP: Motion for Summary Judgment in BIPA Suit Granted --------------------------------------------------------------- David Herman, writing for Law Street, reports that Judge James Robart, of the Western District of Washington, has granted Microsoft Corporation's motion for summary judgment. He found that plaintiffs Steven Vance and Tim Janecyk did not have sufficient evidence to argue that Microsoft used their biometric data within the state of Illinois or enough evidence to argue that Microsoft profited from their biometric data. At issue in this case is Illinois' Biometrics Information Privacy Act (BIPA), which prohibits companies from profiting from their users' biometric information, in this case facial scans from photographs. Beginning in 2008, the plaintiffs both uploaded photographs including ones of themselves to Flickr, a photo-sharing website. In 2014, Yahoo, Flickr's then parent company, publicly released a 100 million photo dataset including photos of the plaintiffs. Approximately five years later, researchers at IBM used one million of those photos to create a photo dataset for testing facial recognition software for racial and gender bias. This dataset included annotations noting the biometric face-mapping information of the photographs. As detailed in the order, two separate researchers obtained this dataset for separate projects within Microsoft. However, neither used face-mapping annotations, nor ended up using the dataset at all in their projects. Judge Robart ruled in favor of Microsoft on two counts. First, the plaintiffs could not demonstrate that their biometric information was solicited or stored in Illinois, so the dormant Commerce Clause of the Constitution applies. Second, because neither researcher at Microsoft used the biometric information or even the dataset as a whole, Microsoft could not be said to have profited from plaintiffs' protected information. The plaintiffs were represented by Lynch Carpenter, LLP and Loevy & Loevy. Microsoft was represented by David Wright Tremaine, LLP and Morgan Lewis & Bockius. [GN] MIDAMERICAN ENERGY: Averts Class Action Over Excessive 401(k) Fees ------------------------------------------------------------------ Lindsey H. Chopin, Esq., and Elisabeth E. Constantino, Esq. of JacksonLewis, disclosed that plaintiffs must plead a "sound basis for comparison -- a meaningful benchmark" -- to sustain their claims of imprudent investment and excessive fee against a 401(k) plan, the federal appeals court in St. Louis has held, dismissing a class action lawsuit for breached of fiduciary duties under ERISA. Matousek v. MidAmerican Energy Co., No. 21-2749 (8th Cir. Oct. 12, 2022). The U.S. Courts of Appeals for the Sixth and Seventh Circuits reached similar conclusions in dismissing cases before them. More than 200 class action lawsuits claiming imprudent investment and excessive fee against 401(k) plans have been filed around the country since January 2020. Jackson Lewis attorneys Lindsey H. Chopin, Stacey C.S. Cerrone, and Howard Shapiro defended MidAmerican at the district court level, and Chopin argued the case before a three-judge panel in the Eighth Circuit on April 13, 2022. The Eighth Circuit has jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. Background Filed in November 2020, the class action lawsuit challenged the management of MidAmerican's $1.1 billion 401(k) defined contribution plan. It alleged that MidAmerican breached its fiduciary duties by charging excessive recordkeeping fees and offering expensive and poorly performing investments. The district court dismissed the case with prejudice. Matousek v. MidAmerican Energy Co., No. 20-cv-352, 2021 U.S. Dist. LEXIS 150379 (S.D. Iowa July 2, 2021). It held, "Defendants persuasively argue that plaintiffs have failed to allege facts establishing a meaningful benchmark for assessing the performance of the challenged funds." The plaintiffs appealed. Eighth Circuit Decision The Eighth Circuit panel unanimously affirmed the judgment of the district court. For several years, the Eighth Circuit has required plaintiffs asserting imprudent investment claims to plead a "sound basis for comparison—a meaningful benchmark" to sustain their claim. In Matousek, the Eighth Circuit made clear that this standard applies equally to excessive fee claims. The plaintiffs did not meet that bar because, the Eighth Circuit explained, instead of identifying recordkeeping fees paid by specific, comparably sized plans, they pointed to industry-wide averages and drew apples-to-oranges comparisons between total fees reported in the plan's 5500s and pure recordkeeping fees they alleged to be reasonable. Accordingly, the Eighth Circuit dismissed the plaintiffs' excessive fee claims. The court similarly dismissed the plaintiffs' imprudent investment claims. It held that undefined peer groups and other broad categories of investments are not "meaningful benchmarks" sufficient to show that other funds with similar styles and strategies performed better. Takeaways The court has further refined the pleading standard for ERISA breach-of-fiduciary-duty claims challenging defined contribution plans' fees and investments. Complaints must identify meaningful benchmarks when alleging that service providers' fees are too high or that particular funds are too costly or perform poorly. Such benchmarks allow for an apples-to-apples comparison, essential for evaluating the prudence of fiduciaries' actions without relying on hindsight-based outcomes. Along with recent decisions from the Sixth and Seventh Circuits, Matousek adds to the growing body of published, circuit-level decisions requiring sound comparisons to services with lower fees or investments with better performance to survive dismissal. Please contact a member of our ERISA Complex Litigation Group with any questions. ©2022 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome. Focused on labor and employment law since 1958, Jackson Lewis P.C.'s 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients' goals to emphasize inclusivity and respect for the contribution of every employee. For more information, visit https://www.jacksonlewis.com. [GN] MYLAN INC: Grant in Part of Bid to Compel in Rochester Suit Upheld ------------------------------------------------------------------ In the case, Rochester Drug Co-Operative, and Dakota Drug, Inc., Plaintiffs v. Mylan Inc., et al., Defendants, Amneal Pharmaceuticals LLC, Respondent, Case No. 22-mc-0007 (ECT/JFD) (D. Minn.), Judge Eric C. Tostrud of the U.S. District Court for the District of Minnesota affirms Magistrate Judge John F. Docherty's May 20, 2022 Order granting in part the Plaintiffs' motion to compel and overrules the Respondent's Objections. In a case brought under RICO and the Sherman Act, Section 2 -- In re EpiPen Direct Purchaser Litig., No. 20-cv-827 (ECT/JFD) (D. Minn.) -- the Plaintiffs served a document subpoena on non-party Amneal Pharmaceuticals. After negotiations regarding Amneal's response to the subpoena broke down, the Plaintiffs commenced this miscellaneous action seeking to compel Amneal to produce documents. Magistrate Docherty resolved Plaintiffs' motion to compel and Amneal has lodged objections to two aspects of Magistrate Judge Docherty's Order. Amneal objects to Magistrate Judge Docherty's decision to require the Plaintiffs to bear 20% of the costs arising from Amneal's production of documents from its current storage system. It says that Magistrate Judge Docherty ordered it to produce documents the Plaintiffs did not request in their subpoena. The case derives from a larger putative class-action suit about the price of EpiPens, In re EpiPen Direct Purchaser Litig., No. 20-cv-827 (ECT/JFD) (D. Minn.). Mylan Inc. and Mylan Specialty L.P. (together "Mylan") manufacture medical devices called EpiPens, a type of epinephrine auto injector that can be used to inject a life-saving dose of epinephrine into a person having a severe allergic reaction. The Plaintiffs, on behalf of a proposed class of pharmaceutical wholesalers, allege that Mylan paid bribes and kickbacks to a group of three Pharmacy Benefit Managers (or "PBMs") in exchange for favorable placement in the lists of insurance-covered drugs and devices that the PBMs prepared for their clients, also known as formularies. They claim Mylan and the PBM Defendants violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Section 1962(c), and that Mylan violated the Sherman Act, 15 U.S.C. Section 2. The Plaintiffs served the at-issue subpoena on Amneal, a Mylan competitor, in the hope of obtaining evidence to support their RICO and Sherman Act claims. Amneal manufactures and markets the Adrenaclick AG, an epinephrine-auto-injector device that competes with EpiPen. The Plaintiffs claim that Mylan's concerns over new competition from Adrenaclick and another epinephrine-auto-injector product prompted it to devise the bribery and kickback scheme. They allege that although Adrenaclick had a lower price than EpiPen during the alleged bribery and kickback scheme, EpiPen's price rose from $219 to $609 without concern from Mylan that it would lose its market advantage. Under their theory, the scheme resulted in Adrenaclick being excluded from the PBM Defendants' formularies, thus allowing Mylan to increase the price of EpiPens while maintaining its market share. The original subpoena included seven numbered requests (not counting subparts). Three of those requests -- numbers 3, 4, and 5, as narrowed through negotiations between the Plaintiffs and Amneal -- are the subject of the Plaintiff's motion to compel. Request 3 is as follows: Documents and communications in the Relevant Time Period relating to Amneal's views about (1) pricing strategies for Amneal's EAI Drug Device; (2) the impact of changing price on formulary placement, coverage, sales, revenue, and profits, and PBMs' correlating actual or potential reactions; (3) Amneal's ability to manufacture its EAI Drug Device and supply the market; and (4) strategies for achieving formulary placement for Amneal's EAI Drug Device. Requests 4 and 5 have been combined into one paragraph as follows: Any agreements, offers, or negotiations with the PBM Defendants in this case or their related entities (i.e. Express Scripts, OptumRx, Caremark, CVS and any other corporate parents or affiliates). Magistrate Judge Docherty granted the Plaintiffs' motion to compel in part. He held that responsive productions to Request For Production Nos. 3-5, as modified for relevance and proportionality by this Order pursuant to Rules 26(b) and 45(d)(1), should be made by Amneal. These included Amneal's observations about its proposed agreements, offers, or negotiations with the PBM Defendants. Amneal was not, however, required to produce any materials within the control of the PBM Defendants, or any materials relating to entities that are not parties to In re: EpiPen. The Plaintiffs were also ordered to pay 80% of the costs to recover materials held in a legacy storage system predating Amneal's current storage system, and pay 20% of the costs to produce materials in Amneal's current storage system. Amneal first objects to Magistrate Judge Docherty's decision to shift (only) 20% of the costs related to production of materials in Amneal's current storage system. It argues that this aspect of the decision is clearly erroneous and contrary to law and that all production costs for these materials should be shifted to the Plaintiffs. It also objects to Magistrate Judge Docherty's decision to order it to produce, as part of its response to Requests 4 and 5, "Amneal's observations about its proposed agreements, offers, or negotiations with the PBM Defendants." Judge Tostrud overrules Amneal's objections because Magistrate Judge Docherty's Order is neither clearly erroneous nor contrary to law. He finds that Amneal has not shown that its cost is so significant as to render Magistrate Judge Docherty's order clearly erroneous or contrary to law. Moreover, Magistrate Judge Docherty reasonably construed Requests 4 and 5 within the context to include Amneal's observations about attempts to strike a deal, as sought in Request No. 3. Based on the foregoing, the Respondent's Objections are overruled and Magistrate Judge Docherty's May 20, 2022 Order is affirmed. A full-text copy of the Court's Oct. 14, 2022 Order is available at https://tinyurl.com/y94wfw44 from Leagle.com. Amanda Leah Hass -- ahass@odrlaw.com -- Andrew Kelly -- akelly@odrlaw.com -- Chris Letter -- cletter@odrlaw.com -- Dan Chiorean -- dchiorean@odrlaw.com -- Stuart Des Roches -- stuart@odrlaw.com -- and Thomas Maas -- tmaas@odrlaw.com -- of Odom & Des Roches LLC, New Orleans, LA; Bruce E. Gerstein -- bgerstein@garwingerstein.com -- Jonathan M. Gerstein -- jgerstein@garwingerstein.com -- and Joseph Opper -- jopper@garwingerstein.com -- of Garwin Gerstein & Fisher LLP, New York, NY; David C. Raphael, Jr. -- draphael@ssrllp.com -- and Susan C. Segura -- ssegura@ssrllp.com -- of Smith Segura Raphael & Leger, LLP, Alexandria, LA; E Michelle Drake -- emdrake@bm.net -- and John Parron of Berger Montague PC, Philadelphia, PA, for Plaintiffs Rochester Drug Co-Operative, and Dakota Drug, Inc. Bryan Pratt -- bpratt@shb.com -- and Elliott M. Davis -- edavis@shb.com -- of Shook, Hardy & Bacon LLP, Washington, D.C.; and Keiko L. Sugisaka -- keiko.sugisaka@maslon.com -- of Maslon LLP, Minneapolis, MN, for Respondent Amneal Pharmaceuticals LLC. NATIONAL FOOTBALL: Faces Class Action Over Auto Renewal Policy -------------------------------------------------------------- Marian Johns, writing for Legal Newsline, reports that the National Football League is facing a consumer class action lawsuit over its auto renewal policy for NFL + subscription services. Ryan Oyler, individually and on behalf of all others similarly situated, filed a complaint Oct. 3 in the U.S. District Court for the Southern District of New York against NFL Enterprises LLC alleging violation of state consumer fraud acts and other claims. Oyler alleges in the class action that the NFL auto-converted and auto-renewed its Gamepass subscribers to the NFL + subscription service without their knowledge or consent and charged them a year's membership all at once. He further claims the NFL's strategically placed "cancellation obstacles" for the subscription service to prevent him and others from cancelling and getting a refund by using manipulative interface practices. Specifically, Oyler claims a "cancellation" link on the service's website is "unclear and non-intuitive" and does not allow the user to navigate and complete cancellation process. He further claims he was charged for the NFL + service despite his requests to cancel and removing his payment information from its system and that the NFL refuses to provide him a refund. Oyler claims the NFL's actions constitute unfair or deceptive trade practices. Oyler and the class seek monetary relief, interest, trial by jury and all other just relief. They are represented by Spencer Sheehan of Sheehan & Associates PC in Great Neck, NY. U.S. District Court for the Southern District of New York case number 1:22-CV-08413 [GN] NETFLIX INC: Glancy Prongay to Lead Investors' Class Action Suit ---------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that the Los Angeles firm Glancy Prongay & Murray will lead a class action lawsuit on behalf of Netflix investors upset with the way the company is performing. California federal judge Jon Tigar on Oct. 11 approved the firm's motion to be appointed lead counsel, while its client, the trustee of Imperium Irrevocable Trust, will be lead plaintiff. They were the first combo to file suit. Cleveland Bakers and Teamsters Pension Fund also sued in late May, through the firm Grant & Eisenhofer. Nothing on the docket suggests they ever moved to be made lead plaintiff and counsel, and their case will be consolidated with GPM's. The Imperium Irrevocable Trust said it lost more than $34 million in its Neflix investment. Its lawsuit asks for certification of class of those who bought common stock or call options between Oct. 19, 2021, and April 19, 2022. Litigation followed Netflix's announcement in April that it lost 200,000 subscriptions during the firstquarter of 2022. Upon that news, its stock price fell $122.42 per share to close at $226.19 on April 20. As of October 19, 2022, it traded in the low $200s per share but at one point in 2021 was at $690. [GN] NEW MEXICO: Order Adopting Case Review in Hatten-Gonzales Appealed ------------------------------------------------------------------ DAVID R. SCRASE is taking an appeal from a court order adopting the Special Master's case review recommendations with mild modifications in the lawsuit entitled Debra Hatten-Gonzales, individually and on behalf of others similarly situated, Plaintiff, v. DAVID R. SCRASE, Secretary of the New Mexico Human Services Department, Defendant, Case No. 1:88-CV-00385-KG-GBW, in the U.S. District Court for the District of New Mexico. As reported in the Class Action Reported on August 1, 2016, a federal judge in Albuquerque recommended that New Mexico's Human Services Department (HSD) be held in contempt for failing to abide by court-ordered changes to its troubled food and medical assistance programs. New Mexico has one of the highest poverty rates in the nation: one in three New Mexicans receive some form of public assistance. The state's Medicaid and Supplemental Nutrition Assistance Programs, formerly called food stamps, have been accused of violating federal regulations for decades. A class-action lawsuit filed in 1988 accused the state's Human Services Department of failing to notify applicants about the emergency SNAP program, of not processing applications within the federally mandated time period, and of denying valid applications. That lawsuit has not yet been resolved despite a negotiated resolution and an agreement to "make good faith efforts to resolve any differences that may arise in the prospective implementation of the decree," U.S. Magistrate Judge Carmen Garza wrote in her July 15, 2016 recommendation that the Human Services Department be held in contempt of court. Judge Garza further ordered that the state's failure to comply with court orders despite multiple deadline extensions was grounds not only for contempt charges but necessitated the appointment of a special master to "objectively review and determine HSD's compliance with the consent decree, other court orders, and federal law concerning the process for obtaining and maintaining Supplemental Nutrition Assistance Program ('SNAP') and Medicaid benefits." On January 31, 2018, the Special Master filed its report containing its findings and conclusions. First, he concluded that the Defendant is not in full compliance with the Consent Decree, court orders, and federal law. Second, the Special Master concluded that despite limited progress by the ISD program management, instituting a receivership, at this time, would not result in immediate resolution of the ISD program deficiencies. The Special Master then made nine recommendations which included revising the Consent Decree to give recognition to the parts that have been completed, update requirements, close the class (if allowed by law) and dismiss all court orders, in which the requirements have been met. On February 20, 2018, both Plaintiffs and Defendant responded to the Report. These responses contain, inter alia, objections to the Report. Also, on February 20, 2018, Defendant filed a motion to modify the Report. In a Memorandum Opinion and Order dated April 5, 2018 , the Court sustained, in part, and overruled, in part, the objections to the Special Master's Report. The Motion to Modify the Special Master's Report was also granted, in part, and denied, in part. The Court adopted the Special Master's Report, and ordered the parties to revise the Consent Decree to reflect the parts that have been completed, update requirements, and dismiss all moot court orders. The Court also ordered the Defendant to implement an unbiased case review process to assist in validating whether the ISD program is meeting the requirements of the Consent Decree. Consequently, Judge Kenneth J. Gonzales of the U.S. District Court for the District of New Mexico granted the parties' Joint Motion to Approve and Adopt Revised Modified Consent Decree filed on Aug. 10, 2018. The parties have informed the Court that the Second Revised Modified Settlement Agreement (Consent Decree) protects the interests of the Plaintiff class in the case and brings the current Consent Decree up to date with the current circumstances and practices of the New Mexico Human Services Department and with current federal mandates for the Supplemental Nutrition Assistance Program and Medicaid. Therefore, Judge Gonzales granted the Joint Motion to Approve and Adopt Revised Modified Consent Decree. He approved and adopted as the Order the Second Revised Modified Settlement Agreement, which has now been signed and re-named by the Court Second Revised Modified Settlement Agreement and Order and separately filed by the Court. The Second Revised Modified Settlement Agreement and Order became the operant Consent Decree in the case. On September 22, 2022, the Court adopted the Special Master's case review recommendations with the minor clarification that evidentiary and documentary requests are limited to the prior certification period, either 6 or 12 months, depending on the case action at issue. All remaining objections were overruled and all remaining requests were denied. The appellate case is captioned Hatten-Gonzales v. Scrase, Case No. 22-2115, in the United States Court of Appeals for the Tenth Circuit, filed on September 26, 2022. The briefing schedule in the Appellate Case states that: -- Appellant David R. Scrase docketing statement was due on October 11, 2022; -- Appellant David R. Scrase transcript order was due on October 11, 2022; and -- Debra Hatten-Gonzales and David R. Scrase notice of appearance was due on October 11, 2022. [BN] Plaintiff-Appellee Debra Hatten-Gonzales, individually and on behalf of all others similarly situated, is represented by: Sovereign Hager, Esq. NEW MEXICO CENTER ON LAW AND POVERTY 924 Park Avenue, SW, Suite C Albuquerque, NM 87102-0000 Telephone: (505) 243-6282 - and - Daniel Yohalem, Esq. 1121 Paseo de Peralta Santa Fe, NM 87501-0000 Telephone: (505) 988-5324 Defendant-Appellant DAVID R. SCRASE, Secretary of the New Mexico Human Services Department, is represented by: Paul R. Ritzma, Esq. NEW MEXICO HUMAN SERVICES DEPARTMENT 1474 Rodeo Road Santa Fe, NM 87505 Telephone: (505) 476-7048 NEW YORK: M.G. Wins Bid for Production of Unredacted Census Docs ---------------------------------------------------------------- In the case, M.G., et al., Plaintiffs v. ANDREW CUOMO, et al., Defendants, Case No. 19 Civ. 639 (CS) (AEK) (S.D.N.Y.), Magistrate Judge Andrew E. Krause of the U.S. District Court for the Southern District of New York grants the Plaintiffs' motion to compel the production of 179 unredacted "census documents." In this putative class action alleging violations of the Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq., the Rehabilitation Act, 29 U.S.C. Section 794, and 42 U.S.C. Section 1983, the Plaintiffs seek to compel the production of 179 unredacted "census documents" containing information about putative class members, and any updates or more current versions of the documents that will be produced in future discovery. The Defendants oppose the motion to compel; they assert that the Plaintiffs are not entitled to unredacted versions of the documents in question because they contain highly sensitive mental health treatment information about individuals who are not currently parties to the litigation. The Plaintiffs' operative complaint seeks relief on behalf of two putative classes and one putative subclass. The first putative class is comprised of people with serious mental illnesses who the Defendants allegedly hold or will hold in prison past their release dates -- including the end of their prison sentences, approved conditional release dates, and open dates for parole release -- due to an inadequate capacity of community-based mental health housing programs (the "General Class"). The putative General Class contains a subclass of individuals who allegedly have been or will be incarcerated past the maximum expiration dates of their court-imposed prison sentences (the "RTF Subclass"). The second putative class is comprised of people with serious mental illnesses who allegedly have been placed at serious risk of institutionalization upon their release from prison because Defendants purportedly fail to provide the community-based mental health housing and supportive services that such individuals need (the "Discharge Class"). The Plaintiffs have not yet moved to certify the classes. Early in this litigation, the parties negotiated procedures to govern the sharing and handling of confidential material, including documents containing personal health information. On May 15, 2019, Judge Seibel entered a stipulated protective order providing that, inter alia, any personal health information that is disclosed in connection with this matter cannot be shared outside of the litigation and can only be used in connection with this litigation. After the Protective Order was adopted and in the course of conducting discovery, the Plaintiffs requested censuses of the population of persons released from prison to homelessness, persons held in "prolonged incarceration," and persons held in prisons on residential treatment facility ("RTF") status past the maximum expiration dates of their custodial sentences. The Defendants produced certain responsive censuses maintained by Defendants New York State Office of Mental Health ("OMH") and New York State Department of Corrections and Community Supervision ("DOCCS"), but in doing so redacted nearly all individually identifying information, including that of putative class members. On June 8, 2022, the Plaintiffs filed a pre-motion conference letter in advance of their anticipated motion to compel unredacted versions of the censuses or, in the alternative, censuses that replace personally identifying information with unique identifiers assigned to each individual listed in the documents. The Court granted the Plaintiffs' request to file their motion to compel and set a briefing schedule. The Plaintiffs' motion and supporting declarations were filed on July 8, 2022, and the Defendants' opposition was filed on July 22, 2022. The Plaintiffs assert that the unredacted censuses are relevant and proportional to the needs of this case because they require the records to demonstrate numerosity for purposes of class certification and to determine whether adequate community-based mental health housing and supportive services exist to support the purported classes. The Defendants maintain that the redacted censuses that were already produced serve the purposes sought by the Plaintiffs, namely, by providing "abundant unredacted data" including "how many individuals are on the list, their release dates, DOCCS facility, and other information." Judge Krause holds that the information sought by the Plaintiffs is plainly relevant to this matter. He says the Plaintiffs have not yet moved for class certification, and to establish the requirements for class certification set forth in Rule 23 of the Federal Rules of Civil Procedure, they must show, among other things, that the class is so numerous that joinder of all members is impracticable. The records in question include lists of persons released from prison to homelessness, persons held in custody held past their lawful release dates, and persons held in custody on RTF status past their maximum expiration dates. The Plaintiffs' request is also proportional to the needs of this case. Judge Krause finds that without any identifying patient information, the Plaintiffs cannot be sure if this data is truly duplicative, and should therefore only be counted once, or if the data concerns unique individuals who happen to have in common all of the information captured in the censuses other than unique personally identifying information. He is also satisfied that the particular circumstances presented allay many of the typical concerns attendant to sharing non-party medical information. For all of these reasons, the Plaintiffs' motion to compel the production of these records is granted. The Defendants request that in the event the Court grants the motion to compel, the Court also consider the question of whether the interests of justice significantly outweigh the need for confidentiality pursuant to MHL Section 33.13(c)(1). Although he has assessed the instant motion under HIPAA in accordance with the parties' agreement that this dispute is "governed by principles of federal law," even if the state law governed this dispute, Judge Krause would still find that the Plaintiffs had met their burden under MHL Section 33.13(c)(1). For all of the reasons he discussed, he finds that the interests of justice significantly outweigh the need for confidentiality. Judge Krause grants the Plaintiffs' motion to compel discovery. His Decision and Order constitutes a court order requiring disclosure of protected health information pursuant to HIPPA and its associated regulations. The Defendants must produce the documents listed in ECF No. 227-1 in unredacted form, designated as confidential pursuant to the existing Protective Order. The Clerk of Court is respectfully directed to terminate the motions at ECF No. 220 and 224. A full-text copy of the Court's Oct. 14, 2022 Decision & Order is available at https://tinyurl.com/mr3wvky4 from Leagle.com. NISSAN MOTOR: Faces Class Suit Over Unsafe Nissan Altima Vehicles ----------------------------------------------------------------- A Nissan Altima continuously variable transmission (CVT) class action lawsuit alleges the cars shake, jerk, lurch, judder, and stall due to defective transmissions. The CVT lawsuit includes 2019-2020 Nissan Altima cars in the U.S. The plaintiffs who filed the class action allege Nissan knew in 2018 that the Altimas had design or manufacturing defects that cause the transmissions to malfunction. According to the class action lawsuit, the Nissan CVT is a transmission that doesn't use regular gears during normal driving. Instead, it uses a segmented steel belt between pulleys that can be adjusted to change the reduction ratio in the transmission, and everything is controlled by the transmission control module. The Nissan lawsuit alleges customers report problems with acceleration from a stop and while the Altimas are in motion. The engines allegedly rev even though the speed doesn't increase. And the problem can allegedly pop up suddenly and without warning, creating "extreme and unreasonable safety hazard to drivers, passengers, and pedestrians for obvious reasons." The CVT class action alleges Nissan has issued several technical service bulletins about the transmissions but allegedly no real repairs have been offered to Nissan Altima customers. The automaker allegedly also refuses to recall the Altimas for CVT problems and won't replace the transmissions for free. Nissan Altima CVT Class Action Lawsuit (The Plaintiffs) The Nissan Altima transmission lawsuit was filed by six owners who claim their cars are dangerous to drive. However, only two of the Altima owners assert they had their cars inspected by mechanics. Ariel Simpson / Maryland / 2019 Nissan Altima "Ms. Simpson's vehicle has exhibited the CVT Defect on numerous occasions. For example, when attempting to accelerate from a stop or while in motion, Ms. Simpson's vehicle hesitates and feels as if it is slipping. On some occasions to get the vehicle moving she has found it necessary to press the accelerator all the way to the floor; even so, the car will sometimes still will not pick up. Ms. Simpson has also experienced her vehicle jerking." Dominique Brogden / Maryland / 2020 Nissan Altima "Ms. Brogden's vehicle has exhibited the CVT Defect on numerous occasions. For example, the vehicle hesitates and feels as if it is slipping when attempting to accelerate from a stop and while in motion, and jerks when it does engage." Tara Martins / Massachusetts / 2019 Nissan Altima "Ms. Martins' vehicle has exhibited the CVT Defect on numerous occasions. For example, when attempting to accelerate from a stop or while in motion, Ms. Martins' vehicle hesitates. At times Ms. Martins has been unable to drive up hills due to loss of power. Ms. Martins also experiences jerking." The plaintiff says she brought her Altima to a Nissan dealer to complain, and she also complained directly to Nissan. "However, to date Ms. Martins has not been offered a repair or replacement." Gregory Swann / Maryland / 2020 Nissan Altima "Mr. Swann's vehicle has exhibited the CVT Defect on numerous occasions. For example, when attempting to accelerate from a stop or while in motion, Mr. Swann's vehicle hesitates. In about August 2022, he took the vehicle to a Nissan dealer who informed him the problem was likely CVT-related. The Nissan dealer did not offer a repair and claimed that the issues Mr. Swann was experiencing were normal for his vehicle." Danielle Romanoff / North Carolina / 2020 Nissan Altima "Ms. Romanoff's vehicle has exhibited the CVT Defect on numerous occasions. For example, Ms. Romanoff has experienced hesitation, particularly when attempting to accelerate at highway speeds, followed by jerking when the vehicle does engage." Perry Royster / North Carolina / 2019 Nissan Altima "Mr. Royster's vehicle has exhibited the CVT Defect on numerous occasions. For example, Mr. Royster's vehicle hesitates when attempting to accelerate from a stop or while in motion. Mr. Royster's vehicle also frequently jerks when attempting to accelerate." Multiple Nissan Altima CVT class action lawsuits have been filed in the U.S., but about as soon as a settlement is reached in one, additional lawsuits are filed which include different Altima model years. The Nissan Altima CVT class action lawsuit was filed in the U.S. District Court for the Middle District of Tennessee: Simpson, et al., v. Nissan of North America, Inc., et al. The plaintiffs are represented by Branstetter, Stranch & Jennings, PLLC, and Greenstone Law APC. [GN] NORTHEAST COMMUNITY: Carroll's Bid for Settlement Approval Denied ----------------------------------------------------------------- In the case, JAYSON CARROLL, individually and on behalf of all persons similarly situated, Plaintiffs v. NORTHEAST COMMUNITY CENTER FOR BEHAVIORAL HEALTH, Defendant, Civil Action No. 21-01288 (E.D. Pa.), Judge Gerald J. Pappert of the U.S. District Court for the Eastern District of Pennsylvania denies the Plaintiff's motion for preliminary approval of a proposed settlement without prejudice. Mr. Carroll worked as a Blended Case Manager for Northeast Community from February of 2019 to June of 2020. Carroll, on behalf of himself and other similarly situated Blended Case Managers, sued Northeast Community Center asserting a collective action under the Fair Labor Standards Act and a class action under the Pennsylvania Minimum Wage Act for unpaid overtime wages. Blended Case Managers regularly worked over 40 hours per week without receiving the overtime compensation the statutes require. After three settlement conferences with Magistrate Judge Hey, the parties reached agreement. The net settlement amount of $182,000, which will be distributed among the class members, represents 83% of the Class Counsel's calculations of unpaid wages owed using the most favorable assumptions that each Blended Case Manager worked approximately five hours of overtime per work week." The attorneys' fee award is up to one-third of the Gross Settlement Amount of $300,000 and an out-of-pocket costs of no more than $3,000 incurred by the Class Counsel. The Agreement requires Carroll to release existing and potential claims and causes of action that go well beyond the legal and factual basis of Carroll's Complaint. Mr. Carroll now moves for the Court's preliminary approval of the proposed Settlement. Judge Pappert holds that the Agreement is fair and reasonable. The parties engaged in three rounds of settlement conferences, and Carroll demonstrates he weighed the uncertainty of a trial and the cost of continued litigation as he negotiated the Agreement. He further holds that the attorneys' fee award the out-of-pocket costs are also fair and reasonable. However, he finds that the Agreement's releases as to Carroll frustrates the FLSA's purpose and allows Northeast Community Center to take advantage of its superior bargaining power by binding her to an overly broad release. In any amended submission, in addition to narrowing the release language, Judge Pappert orders that the Service Award listed in Section 3 of the Notice of Settlement ($3,000) should be corrected to conform with the amount listed in the Settlement Agreement ($15,000). An appropriate Order follows. A full-text copy of the Court's Oct. 14, 2022 Memorandum is available at https://tinyurl.com/2xmjexmk from Leagle.com. ORGANIGRAM HOLDINGS: Court Okays Settlement in Cannabis Class Suit ------------------------------------------------------------------ Allan Dearing, writing for 919thebend, reports that a nationwide settlement in the Organigram class action lawsuit has been approved by the Supreme Court of Nova Scotia. The certified action alleged Class Members, who were represented by Halifax-based Wagners Law Firm, did not receive the product they had bargained for and that they should therefore be provided with a return of the purchase price. The settlement applies to all those who purchased medical cannabis from the Moncton-based company that had been voluntarily recalled as of early 2019. Organigram will pay up to a total of $2,310,000 CDN to Class Members for partial refunds less any refunds they have already received as well as to pay legal fees and expenses. In addition, Organigram has agreed to pay the third-party costs of administering notice and the settlement. Eligible Class Members will automatically receive letters via mail or email describing the amount of their individual payment under the settlement and will be paid by cheque or Interac e-Transfer. In approving the settlement in Halifax on August 31, 2022, the Honourable Justice Ann E. Smith of the Supreme Court of Nova Scotia found that the settlement was fair, reasonable and in the best interest of the Class. Justice Smith also approved legal fees, disbursements and applicable taxes. [GN] PRINCESS CRUISES: Class Action Suit Begins Over COVID-19 Outbreak ----------------------------------------------------------------- Raghib Raza posted on fleetmon.com that a class action lawsuit is set to commence in Sydney over the infamous Covid-19 outbreak aboard the Ruby Princess cruise ship. The operators of Ruby Princess, Princess Cruises, and Carnival Corporation refuse any responsibility for the outbreak that killed 28 people. In the incident, 2600 passengers went on the cruise on March 8th, 2020. There was a Covid outbreak on board which was handled poorly. 660 people ended up testing positive for Covid 19, out of which 28 did not survive. The plaintiff's counsel, Barrister Ian Pike, observed that this was not the first Covid 19 outbreak that Princess Cruises had faced. The Diamond Princess, another vessel in Princess's fleet had 700 positive test cases and 7 deaths in an incident a few weeks before this one. Pike also stated that the ship was poorly equipped to handle the highly likely contingency of a Covid outbreak. The ship's doctor had attempted to procure masks for everyone onboard but at the time there was a global shortage of masks and masks could not be procured. The vessel set sail anyway with permission from the Australian authorities. There were no measures introduced for social distancing nor was the outbreak even acknowledged aboard the cruise, the activities went on as normal. Pike makes the case that with such flagrant negligence, the tragedy that struck was not an accident, but was highly likely. On the other hand, the defendant's counsel, David McClure states that it was impossible to eradicate the risk of a Covid 19 outbreak given the public setting on a cruise ship. There was no directive at the time of the incident from the Australian government that mandated the screening of passengers before they entered the ship. Neither was there any mandate to have sufficient masks before setting sail. The passengers assumed the risk of infection just as they did when they walked into any other public venue. "The passengers were free to self-isolate if they so choose and did not have to take part in cruise activities," he stated. [GN] REALPAGE INC: Renters File Antitrust Class Action Over Rent Spike ----------------------------------------------------------------- Mike Leonard, writing for Bloomberg Law, reports that RealPage Inc. and major residential landlords are facing federal antitrust litigation in San Diego after a group of renters hit them with a proposed class action on Oct. 19 claiming they've conspired to inflate the cost of apartment leases nationwide. In addition to RealPage, a Thoma Bravo LP affiliate, the lawsuit targets the two top US residential real estate managers, GreyStar Real Estate Partners LLC and Lincoln Property Co., as well as the fifth, FPI Management Inc. The other six landlords named as defendants include four of the country's 25 largest. The suit accuses the landlords of illegally sharing price information through data analytics software made by RealPage rather than competing to attract renters. The software, based on algorithmic pricing mechanisms, allegedly includes other functions that let members of the cartel police one another. "RealPage has undertaken this conduct with full and complete knowledge of its illegality," declaring that it's "proud of its role in the exploding increase in the prices of residential leases," the suit says. It cites a marketing video in which a company executive allegedly took credit for the unprecedented spike. A representative for RealPage told Bloomberg Law in a brief statement on Oct. 19 that the company will "vigorously defend" itself in court. "RealPage strongly denies the allegations," the statement said. "Beyond that, we do not comment on pending litigation." The real estate managers didn't immediately respond to requests for comment on Oct. 19. RealPage isn't the only company that has bragged about its role in relentlessly driving up rents, according to the complaint. The landlords, too, "have publicly admitted that RealPage has allowed them to maintain higher prices in concert, with confidence that they can avoid price cutting and the prisoner's dilemma," the suit says. The complaint, filed in the US District Court for the Southern District of California, comes days after the news organization ProPublica published an investigative report on RealPage's software and its use by major real estate managers. The suit lists roughly a half-dozen features of the residential apartment market that allegedly make it susceptible to collusion, including the high cost of acquiring a building, barriers that prevent renters from breaking their leases, the lack of other options, the concentrated nature of the industry, and the "ample opportunities to collude" among landlords. The other real estate managers named as defendants are Mid-America Apartment Communities Inc., Avenue5 Residential LLC, Equity Residential, Essex Property Trust Inc., Thrive Communities Management LLC, and Security Properties Inc. Cause of Action: Section 1 of the Sherman Act. Relief: Treble damages, an injunction, costs, fees, and interest. Potential Class Size: Anyone in the US who has paid rent to a landlord using RealPage's software since Oct. 18, 2018. Attorneys: The renters are represented by Berger Montague PC, Justice Catalyst Law, Hausfeld LLP, Lieff Cabraser Heimann & Bernstein LLP, and Hartley LLP. The case is Bason v. RealPage Inc., S.D. Cal., No. 22-cv-1611, complaint filed 10/19/22. [GN] RUNNING WAREHOUSE: Can Compel Arbitration in Patrick & 6 More Cases ------------------------------------------------------------------- In the case, JOHN PATRICK, individually and on behalf of all others similarly situated, Plaintiff v. RUNNING WAREHOUSE, LLC et al. Defendants, Case No. 2:21-cv-09978-ODW (JEMx) (C.D. Cal.) Judge Otis D. Wright, II, of the U.S. District Court for the Central District of California enters an order granting the Defendants' Motion to Compel Arbitration and dismissing the Plaintiffs' individual and putative class claims in these seven related actions without prejudice: a. Patrick v. Running Warehouse, No. 2:21-cv-09978-ODW (JEMx); b. Buffington v. Running Warehouse, No. 2:21-cv-09980-ODW (JEMx); c. Arcilla v. Wilderness Sports Warehouse, No. 5:22-cv-00012-ODW (JEMx); d. Gasnick v. Running Warehouse, No. 2:22-cv-00101-ODW (JEMx); e. Pfeffer v. Wilderness Sports Warehouse, No. 2:22-cv-00297-ODW (JEMx); f. Solter v. Sports Warehouse, No. 2:22-cv-00460-ODW (JEMx); and g. Hargrove v. Wilderness Sports Warehouse, No. 2:22-cv-01716-ODW (JEMx). Defendants Running Warehouse, LLC; Wilderness Sports, LLC d/b/a Tackle Warehouse; and Sports Warehouse, Inc. d/b/a Tennis Warehouse and Racquetball Warehouse move to compel Plaintiffs John Patrick, Bethany Buffington, Craig Arcilla, Laurie Gasnick, Jesse Pfeffer, Erik Solter, Lorne Bulling, and Tom Hargrove to arbitrate their claims against them in seven related cases. The Defendants are companies that own and operate e-commerce websites for the purpose of selling sporting goods. The Plaintiffs purchased online goods from them. During the checkout process, each Defendant's website provides an option for consumers to proceed straight to checkout or create an account. Regardless of whether a consumer chooses to create an account, they must confirm their order by clicking a final button to "Place Order" or "Submit Order." Each website's "terms of use" hyperlink leads to substantively identical Terms. Each contains the same "Choice of Law, Arbitration, and Venue" provision. In October 2021, hackers breached the Defendants' websites and stole their consumers' personally identifiable information ("PII"). The Plaintiffs assert that, as part of the Data Breach, the hackers stole their PII that they had provided to Defendants when purchasing goods from Defendants online. Based on the Data Breach, the Plaintiffs brought these seven putative class actions against the Defendants asserting claims of negligence, breach of contract and of implied contract, and quasi contract. The Defendants now move to compel the Plaintiffs to arbitrate their claims against them, based on the arbitration provision in the Terms. Conversely, the Plaintiffs argue that the arbitration provision does not delegate arbitrability, and even if it did, they argue that the arbitration provision and the Terms are invalid under various theories. Judge Wright finds that (i) incorporation of JAMS Inc. arbitration rules constitutes clear and unmistakable evidence that the parties intended to delegate arbitrability, regardless of whether the parties are "sophisticated"; (ii) a clause prohibiting an arbitrator from issuing a public injunction is invalid and unenforceable; (iii) Running's website provided sufficient information to put Arcilla on inquiry notice; and (iv) the Plaintiffs fail to establish that the Terms are substantively unconscionable and Plaintiffs' unconscionability argument necessarily fails. The Defendants request that, in the event the Court grants the Motion, the Court also dismiss the Plaintiffs' claims without prejudice or, in the alternative, stay the seven related cases pending arbitration. Judge Wright holds that the parties have delegated the question of arbitrability to the arbitrator, and neither side has presented any compelling reason to stay the case. Therefore, he exercises discretion and dismisses these seven related actions without prejudice. For the reasons he discussed, Judge Wright grants the Defendants' Motion to Compel Arbitration and dismisses the Plaintiffs' individual and putative class claims in these seven related actions without prejudice. A full-text copy of the Court's Oct. 18, 2022 Order is available at https://tinyurl.com/4ncm83m9 from Leagle.com. SAFARICOM PLC: Faces Class Action Over Alleged SIM-Swap Fraud ------------------------------------------------------------- Business Daily reports that Safaricom and the communications regulator face a class action suit over SIM-swap fraud that has seen scammers drain millions of shillings from mobile phone subscribers' bank accounts. Businessman Abdi Zeila has sued the telcos operator and the Communications Authority of Kenya (CA) for alleged fraud, and invited other victims through the class action suit to press for Safaricom to be cited for negligence and liable for lost cash. He wants the CA to be found negligent of its regulatory duties by allegedly failing to ensure Safaricom is providing services that are secured from fraudsters. The US-style class action suit is where one or several people sue on behalf of a much larger group, and if successful all consumers aggrieved stand to get compensated. This suit emerges in a period where a growing number of mobile phone users have been targeted by scammers in which criminals gain access to their victims' phones or accounts. SIM swap scams occur when a criminal is able to convince a mobile operator to issue them with a replacement SIM card by claiming a false identity and pretending that their mobile phone has been either lost or stolen. It involves cyber crooks taking control of a victim's phone number by essentially deactivating their SIM and switching the allocated number to a SIM belonging to one of the criminal gangs. The criminals then reset passwords on apps, giving them access to their victims' contacts, banking details, emails and social media accounts. Mr Zeila says he lost nearly half a million shillings through the scam in March 28 after fraudsters withdrew Sh373,000 from his bank account at NCBA -- which has been linked to his mobile phone -- took a mobile loan of Sh66,440, another Sh24,000 from KCB-MPesa and a Fuliza loan of Sh12,000. He wants a declaration that Safaricom failed to provide secure services to its customers who have been defrauded, causing them to lose money. "The Plaintiff avers that the suit herein is a class action brought and pleaded as of his own right and on behalf of the identifiable class of persons (subscribers) affected by the breaches and violations associated with the 1st Defendant's mobile telecommunications network and mobile telephone-based mobile money services known as M-Pesa," he says. If the petition is allowed by the court, Mr Zeila will publicise the case to invite persons who have been defrauded through SIM-swap. It means there will be strength in numbers and consumers could get their money back without lifting a finger. According to Mr Zeila, Safaricom has published on its website safety tips and policies all which he adhered to but was still exposed to ‘needless and avoidable injuries and losses'. The victim wants the country's largest mobile operator to refund him the Sh495,651 which was allegedly stolen from him, and pay him damages for breaches. Mr Zeila says in the court documents that the fraud happened on March 28, this year while he was out of the country on holiday. The businessman says Safaricom failed to securely process and control his personal data and in the process, breached its obligations under the law, leading to financial losses. Safaricom is yet to respond to the suit that looks set to be keenly watched in Kenya's legal circles and in the fintechs space. Mr Zeila says the CA failed to exercise its watchdog role and should bear the burden of the compensation that would come from the class action suit. "A declaration that the 2nd Defendant (CA) failed to exercise its regulatory mandate in a diligent manner and failed to hold the 1st Defendant to its licence conditions and by this failure caused the Plaintiff (and members of the class) financial losses," said the businessman in court affidavits. He reckons his SIM-swap occurred when he was on a roaming network outside the country, arguing that Safaricom should have known he could not process the transaction while on a network outside Kenya. The businessman reveals he was in possession of his original national identification card and passport when the fraud happened. He says in court papers that Safaricom has a duty to ensure his personal data are kept in a secure and confidential manner. "I am further aware that SIM-swap is not possible unless someone has access to the Safaricom system and the targeted subscriber's personal data required for purposes of effecting SIM registration," he says, adding that Safaricom demands that a subscriber presents themselves in person together with their original ID for a transaction to occur. Mr Zeila says Safaricom had sole responsibility for carrying out Know-Your-Customer (KYC) steps and verification before permitting the SIM-swap.[GN] SENTINEL INSURANCE: Court Dismisses Zunino Suit With Prejudice -------------------------------------------------------------- In the case, PAULINA F. ZUNINO, DMD, LLC, on behalf of itself and all others similarly situated, Plaintiff v. SENTINEL INSURANCE COMPANY, Defendant, Case No. 2:20-cv-01260 (W.D. Pa.), Judge Mark R. Hornak of the U.S. District Court for the Western District of Pennsylvania grants the Defendant's motion to dismiss. Paulina F. Zunino, DMD, LLC, a licensed dental office located in Pennsylvania, alleges that its commercial property insurer, Sentinel, wrongfully denied its claims for business losses that it sustained due to the COVID-19 pandemic and/or government orders issued to mitigate the COVID-19 virus's spread. The Defendant has filed a Motion to Dismiss all claims. The Plaintiff's claims and supporting factual allegations the arguments that the Defendant has advanced in its Motion to Dismiss, and the arguments that the Plaintiff has advanced in opposing the Motion are all substantially similar to the claims, factual allegations, and arguments advanced by the parties in three other COVID-19 business interruption insurance matters before this Court and in a multitude of actions in state and federal courts -- In re: Erie COVID-19 Business Interruption Protection Insurance Litigation, No. 21-mc-1 (W.D. Pa. Oct. 14, 2022) and Hirschfield-Louik v. Cincinnati Ins. Co., No. 20-cv-816 (W.D. Pa. Oct. 14, 2022). At the times relevant to this litigation, the Plaintiff's commercial property insurance Policy with the Defendant provided that the Defendant will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from a Covered Cause of Loss." As a result of the Mandated Shutdown Rules issued in response to the COVID-19 pandemic, on March 13, 2020, the Plaintiff closed its property for provision of elective dental procedures, and on June 1, 2020, it reopened in a limited capacity to provide clinically necessary treatment in cases of non-urgent and non-emergent care. On March 20, 2020, the Plaintiff provided oral notice to the Defendant of its claim for the interruption to its business. The Defendant denied the Plaintiff's claim for coverage. The Plaintiff then filed this action, in which it seeks a declaratory judgment that its business interruption losses are covered under the policy and relief for the Defendant's alleged breach of contract in denying its insurance claim. On Oct. 25, 2021, the Defendant filed the pending Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and a brief in support of its Motion. The Plaintiff filed its Brief in Opposition to the Motion to Dismiss and the Defendant filed its Reply. Oral argument as to the Motion to Dismiss occurred on May 16, 2022. Judge Hornak holds that the terms of the Plaintiff's insurance Policy with the Defendant, the Plaintiff's factual allegations, and its legal arguments are substantially similar to those in In re: Erie and in Hirschfield-Louik. Thus, for the reasons explained in the Opinions as to the Motions to Dismiss in those cases, the Plaintiff has not plausibly pleaded that the COVID-19 pandemic caused "direct physical loss of or damage to" its property such that it was entitled to coverage for its business losses. Judge Hornak further concludes that given the basis for the Court's decision, the Plaintiff could not amend their complaint to allege additional facts or law that would plausibly show that they are entitled to such coverage. Thus, any amendment to the Complaint would be futile. Accordingly, Judge Hornak grants the Defendant's Motion to Dismiss and dismisses these actions with prejudice. A full-text copy of the Court's Oct. 14, 2022 Memorandum Order is available at https://tinyurl.com/36ntmtb2 from Leagle.com. SINGTEL OPTUS: Taps Deloitte Forensic Experts to Review Breach Suit ------------------------------------------------------------------- Consultancy.com posted that on the second week of October Optus confirmed that 10 million of its current and former customers suffered a leak of their personal information as a result of a data breach at the end of September. In a video posted on the company's website, Optus CEO Kelly Bayer Rosmarin unveiled that of the 10 million accounts that were breached, 2.1 million customers had an identity document number exposed – meaning they may need to take action to replace documents. The incident has over the past few days triggered a massive media attack on the Singtel subsidiary, with the Australian government openly blaming Optus for the breach. The government has launched a criminal investigation, while privacy commissioner Angelene Falk has launched her own investigation. Meanwhile, law firms Slater & Gordon and Maurice Blackburn have confirmed they are investigating a possible class action against Optus to seek compensation for people affected by the breach. "We're deeply sorry that this has happened, and we recognize the significant concern it has caused many people. While our overwhelming focus remains on protecting our customers and minimizing the harm that might come from the theft of their information, we are determined to find out what went wrong," Bayer Rosmarin said. This is where Deloitte comes in. The firm's forensic experts specialize in uncovering digital secrets and attacks and were recently named one of Australia's top forensic consultants for 2022. In the case of Optus, the attacker (who is known under the alias 'optusdata') gained unauthorized access to customer information. The attacker then published a small sample of the stolen data and demanded that Optus pay a $1 million ransom to avoid more leaks. According to the hack platform Hacker News, the hacker has since withdrawn the extortion demand while apologizing for the crime and claiming that the only copy of stolen data had been destroyed, citing increased public attention. For Optus and Deloitte, the development comes too little, too late. "This review will help ensure we understand how it occurred and how we can prevent it from occurring again. It will help inform the response to the incident for Optus," said Bayer Rosmarin. Deloitte will carry out an external review of the incident, and conduct a broader review of Optus' cybersecurity landscape, and risk & security controls and processes. [GN] SMASHBURGER IP: Consumer Suit Deal Approval Hearing Set Jan. 2023 ----------------------------------------------------------------- IF YOU BOUGHT ANY SMASHBURGER "TRIPLE DOUBLE" HAMBURGER BETWEEN JULY 1, 2017 AND MAY 31, 2019, YOU COULD RECEIVE MONEY OR PRODUCT VOUCHERS FROM A CLASS ACTION SETTLEMENT NEWS PROVIDED BY The following statement is being issued by Bursor & Fisher, P.A. regarding the Smashburger Triple Double Settlement. A proposed settlement has been reached in a class action lawsuit called In Re: Smashburger IP Holder, LLC, et al, Lead Case No. 2:19-CV-00993-JAK-(JEMx). What is this lawsuit about? The class action lawsuit alleges that Defendants, Smashburger IP Holder LLC and Smashburger Franchising LLC ("Defendants"), misrepresented the amount of meat in their "Triple Double" hamburgers. Defendants deny they did anything wrong or unlawful. The Court did not rule in favor of either party. Who is included in the settlement? Consumers who purchased and/or consumed any Smashburger "Triple Double" hamburger between July 1, 2017, and May 31, 2019, including but not limited to the following: Triple Double hamburger; Bacon Triple Double hamburger; French Onion Triple Double hamburger; Pub Triple Double hamburger. What can consumers get? Cash: Consumers may be entitled to a $4.00 cash payment for each Product purchased between July 1, 2017 and May 31, 2019, up to a maximum of $20.00 in cash per household without proof of purchase. Voucher: Consumers may be entitled to receive a product voucher redeemable, upon the purchase of a regularly-priced entrée at a company owned Smashburger-branded restaurant, for either: (a) An upgrade of a single beef hamburger to a double beef hamburger for no additional cost. Currently, an upgrade from a single beef hamburger to a double beef hamburger generally costs approximately $2.50; or (b) A small fountain drink for no additional cost. Currently, a small fountain drink generally costs approximately $3.09. Consumers can claim up to 10 vouchers without proof of purchase. Consumers can receive a cash award or a product voucher award. They cannot get both. What does the Settlement provide? If the Settlement is approved and becomes final, the Settlement provides $2,500,000 in cash and 1.5 million product vouchers to resolve the lawsuit. The actual cash amounts and product vouchers available for each eligible Class Member will not be determined until all Claims Forms have been received and may not be determined until the Settlement is final. The Settlement Fund will pay for the following: (1) all notice and administration expenses; (2) any award of Class Counsel's Attorneys' Fees and Expenses; (3) any incentive awards to the class representatives; and (4) Settlement benefits for approved claims. Full details can be found in the Settlement Agreement, which is available at www.burgersettlement.com How do I file a claim? Consumers must mail in a Claim Form or submit a Claim Form online at www.burgersettlement.com. Consumers can also request that a Claim Form be sent to them by calling 1-833-644-1593 toll free. Claim Forms must be submitted electronically at www.burgersettlement.com no later than January 17, 2023, or by mail postmarked no later than January 17, 2023, and mailed to: Smashburger Settlement, c/o Kroll Settlement Administration, P.O. Box 5324, New York, NY 10150-5324. What are my other options? Do nothing: Consumers who do nothing will not get any Settlement benefits and give up the right to sue or continue to sue Defendants for the claims in this case. Exclude: Consumers can exclude themselves from the Settlement, but will not receive any benefits. Consumers will keep the right to sue or continue to sue for the claims in this case. Requests for Exclusion must be postmarked by December 19, 2022. Object: Consumers who do not exclude themselves may object to the Settlement or tell the Court what they don't like about it. Objections must be filed with the Clerk of Court and a copy mailed to the Settlement Administrator by December 19, 2022. More details about consumer rights and options are available at www.burgersettlement.com. What happens next? The Court will hold a hearing on January 30, 2023, at 8:30 a.m. PT in Courtroom 10B at the First Street Courthouse, 350 W First Street, Los Angeles, CA 90012, to consider whether to approve the Settlement, Class Counsel's Attorneys' Fees and Expenses, and incentive awards to class representatives. Class Counsel's fee motion will be posted to www.burgersettlement.com once filed. Consumers or their attorney may ask to speak at the hearing at their own cost, but they don't have to. How do I get more information? This is only a summary. The full notice and important documents are available at www.burgersettlement.com or by contacting the Settlement Administrator in writing at Smashburger Settlement, c/o Kroll Settlement Administration, P.O. Box 5324, New York, NY 10150-5324, or calling toll-free 1-833-644-1593. [GN] SOUTHERN CAPITAL: Joint Discovery Plan in Macklin Suit Approved --------------------------------------------------------------- In the case, Aundrea Macklin and Kyle Reed, on behalf of themselves and others similarly situated, Plaintiffs v. Southern Capital Finance Group, LLC and The Dean Legal Group Ltd., Defendants, Case No. 2:22-cv-01057-APG-EJY (D. Nev.), Magistrate Judge Elayna J. Youchah of the U.S. District Court for the District of Nevada approves the parties' Joint Discovery Plan and Scheduling Order. On Aug. 30, 2022, the first Defendant appeared in this case. Accordingly, Aundrea Macklin and Kyle Reed and The Dean Legal Group Ltd. (jointly as the "parties") submit their proposed Joint Discovery Plan and Scheduling Order. The parties request a special scheduling review because it is a putative class action with complex facts where the Plaintiffs anticipate that multiple third-party witnesses will be disclosed. There is also a related class action filed in state court, Macklin, et al, v. Southern Capital Finance Group, LLC, et al, No. A-22-855007-C. The deadlines also coincide with New Year's holidays, so some further additional time is requested. The parties therefore request an extended discovery period. The parties propose the following discovery plan and scheduling order: 1. Initial disclosures - Oct. 28, 2022 2. Amend pleadings and add parties - Jan 27, 2023 3. Expert disclosures (initial) - Feb. 27, 2023 4. Expert disclosures (rebuttal) - April 24, 2023 5. Discovery cutoff date - May 26, 2023 6. Dispositive motions - June 26, 2023 7. Pretrial order - July 26, 2023 In the event that dispositive motions are filed, the date for filing the joint pretrial order will be suspended until 30 days after decision on the dispositive motions or until further order of the Court. Judge Youchah approves the proposed Joint Discovery Plan and Scheduling Order and so ordered. A full-text copy of the Court's Oct. 14, 2022 Order is available at https://tinyurl.com/2n7bb3d3 from Leagle.com. Michael Kind, Esq., KIND LAW, Las Vegas, Nevada, Kevin L. Hernandez, Esq. -- kevin@kevinhernandezlaw.com -- LAW OFFICE OF KEVIN L. HERNANDEZ, Las Vegas, Nevada, Attorneys for Plaintiffs Aundrea Macklin and Kyle Reed, on behalf of themselves and others similarly situated. LIPSON NEILSON P.C., Joseph P. Garin, Esq. -- JGARIN@LIPSONNEILSON.COM -- Las Vegas, NV, Counsel for The Dean Legal Group, LTD. ST. FRANCOIS COUNTY, MO: Hopple Alleges Jail's Inhumane Conditions ------------------------------------------------------------------ ROBERT HOPPLE, SHAWN MESEY, and STEFANI RUDIGIER, On behalf of themselves and all others similarly situated v. ST. FRANCOIS COUNTY, ADVANCED CORRECTIONAL HEALTHCARE, INC., SHERIFF DANIEL BULLOCK in his official capacity as Sheriff of the St. Francois County Sheriff's Department, DENNIS SMITH in individual capacity HEATHER SMITH, LPN, in her individual capacity, JOHN DOE CORRECTIONAL OFFICER, in his individual capacity, Case No. 4:22-cv-01101-RWS (E.D. Mo., Oct. 14, 2022) accuses the Defendants for denying the minimal necessities to individuals confined at the jail by subjecting them to appalling and inhumane conditions; being deliberately indifferent to the medical, mental health, and dental needs of individuals confined at the St. Francois County Jail; and discriminating against and failing to accommodate people with disabilities. The Defendant allegedly subjected people confined pretrial and postconviction in the SFCJ, including the Plaintiffs and class members, to substantial risk of harm, injury, or death by exposing them to unsanitary and unhealthy conditions, including overflowing sewage and black mold. The Defendant failed to consistently provide cleaning supplies, failed to provide staff to clean the facility, and failed to employ sufficient remediation measures to eradicate inhumane and unsanitary conditions at the SFC, the suit says. The Plaintiffs are all members of the Proposed Pretrial Class and Pretrial Subclass. Deputy John Doe intentionally put Mr. Hopple in a different pod and locked the cell so that two other detainees could assault Mr. Hopple, the suit says. Due to SF County's and Nurse Smith's failure to provide Mr. Hopple with the necessary medical care, Mr. Hopple was forced to endure substantial and unnecessary pain by, inter alia, being forced to pull his own teeth out, the suit claims. Accordingly, Defendants SF County, Administrator Smith, and Nurse Smith acted with deliberate indifference to Mr. Mesey's rights under the ADA because they had actual knowledge of his disability, knew that he was being denied a specialized shoe or similar accommodation, knew that an accommodation would allow him to ambulate safely, and nonetheless denied him that accommodation for 239 days. As a result of his experiences at the SFCJ, Mr. Mesey was diagnosed with Post Traumatic Stress Disorder, the Plaintiff alleges. Ms. Rudigier had a serious medical need to receive treatment for anxiety, depression, and bipolar disorder, specifically treatment in the form of medicine or counsel from a competent medical professional, the suit says. By failing to provide Ms. Rudigier with adequate medical care, Defendants knew of and disregarded a substantial risk of serious harm to Ms. Rudigier's mental health. Ms. Rudigier was diagnosed with Post Traumatic Stress Disorder in June 2019, months after leaving the cruel, inhumane, and punishing conditions of her pretrial detention at the SFC, the suit further asserts. St. Francois County owns and operates the SFCJ located at 1550 Doubet Road in Farmington, Missouri.[BN] The Plaintiffs are represented by: Brandon L. Jackson, Esq Stephen Ryals, Esq. Maureen Hanlon, Esq. ARCHCITY DEFENDERS, INC. 440 N. 4th Street, Suite 390 Saint Louis, MO 63102 Telephone: (855) 724-2489 Facsimile: (314) 925-1307 E-mail: bjackson@archcitydefenders.org sryals@archcitydefenders.org mhanlon@archcitydefenders.org - and - Vincent Colianni, Esq. Marina Leonard, Esq. COLIANNI & COLIANNI, LLC. 4001 Village Run Rd. Wexford, PA 15090 Telephone: (340) 690-0629 E-mail: vinny@colianni.com marina@colianni.com - and - Kevin M. Carnie Jr., Esq. John M. Simon, Esq. Patrick R. McPhail, Esq. THE SIMON LAW FIRM, P.C. 800 Market Street, Suite 1700 St. Louis, MO 63101 Telephone: (314) 241-2929 Facsimile: (314) 241-2029 E-mail: kcarnie@simonlawpc.com jmsimon@simonlawpc.com pmcphail@simonlawpc.com STA MANAGEMENT: $1.95MM Class Deal in Mata FLSA Suit Wins Approval ------------------------------------------------------------------ In the case, JESUS MATA, individually and on behalf of similarly situated persons, Plaintiff v. STA MANAGEMENT, LLC d/b/a "Domino's Pizza" and AMER ASMAR, et al., Defendants, Case No. 19-11662 (E.D. Mich.), Judge Nancy G. Edmunds of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants the Plaintiff's unopposed motion for approval of FLSA collective action settlement and for attorneys' fees and costs. The lawsuit is an "opt in" collective action filed under the Fair Labor Standards Act ("FLSA") in which Mata alleges that the Defendants failed to pay their delivery drivers minimum wage. Mr. Mata brings this action on behalf of himself and other similarly situated delivery drivers employed by the Defendants at their Domino's Pizza stores. On June 5, 2019, he filed his original complaint in this Court, alleging violations of the FLSA and Michigan minimum wage law. On Sept. 5, 2021, the Court issued an opinion and order granting the Plaintiff's motion for FLSA conditional certification and notice pursuant to 29 U.S.C. Section 216(b). In that order, the Court granted conditional certification of the following collective: All individuals who delivered pizza and other food items for any of the Defendants using their own vehicles at any time since June 5, 2016 (the FLSA Collective). The Court also approved the Plaintiff's proposed notice and allowed him to issue the notice and consent form via first-class mail and e-mail, giving potential plaintiffs 90 days during which they may opt-in. It later permitted notice via text message for the potential plaintiffs who did not receive notice by e-mail. The Plaintiff states that to date, 763 individuals (including himself) have opted-in. Shortly after granting conditional certification of the FLSA collective, the Court declined to exercise supplemental jurisdiction over the Plaintiff's state law claim and dismissed that claim without prejudice. The Plaintiff then filed a class action complaint in the Oakland County Circuit Court on Oct. 20, 2021. After a number of settlements conferences with Magistrate Judge David R. Grand and mediation sessions with mediator David A. Kotzian, the parties reached a proposed settlement. The Plaintiff now requests the Court issues an order: (1) approving the settlement agreement, including the gross settlement amount of $1.95 million, as fair and reasonable; (2) approving attorneys' fees of one-third of the gross settlement amount, in the amount of $650,000, plus out-of-pocket litigation expenses (currently estimated at $52,549.25 and are not expected to exceed $65,000); (3) approving a service award to Plaintiffs in the amount of $15,000 each; and (4) dismissing this case with prejudice. Having reviewed the proposed settlement agreement and the Plaintiff's motion, Judge Edmunds finds the settlement to be a fair and reasonable resolution of a bona fide dispute over FLSA provisions. First, there is a bona fide dispute over whether the Defendants violated the FLSA's minimum wage provisions. Second, all of the relevant factors weigh in favor of finding the settlement agreement fair and reasonable. Third, the service award to the Plaintiff and to Elizabeth Freeman is appropriate. Finally, the requested attorneys' fees award and out-of-pocket litigation expenses are reasonable. For the foregoing reasons, Judge Edmunds grants the Plaintiff's unopposed motion for approval of FLSA collective action settlement and for attorneys' fees and costs. The Court will issue a separate judgment dismissing the case with prejudice in accordance with the terms of the settlement agreement. The Court reserves jurisdiction over the action for purposes of supervising the implementation and enforcement of the settlement agreement. A full-text copy of the Court's Oct. 14, 2022 Opinion & Order is available at https://tinyurl.com/3pj8fmtm from Leagle.com. TEXAS PETE: Faces Class Action Lawsuit for False Brand Advertising ------------------------------------------------------------------ Devon Forward shared through Gwinnett Daily Post that a customer alleges that the company's brand is misleading. Texas Pete is a popular hot sauce brand that, over the years, has expanded its products to include a wide range of other sauces (like sriracha, honey mustard, and salsa). But now, one man from Los Angeles, California has filed a class action lawsuit against the brand for supposed false advertising after learning that the hot sauce isn't from Texas at all. Instead, it comes from North Carolina. WGHP-TV first reported on the story, explaining that the man, Philip White, bought a $3 bottle of Texas Pete hot sauce in September of last year at a Ralph's grocery store. According to court documents, "In making his purchase decision, 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. Had White known the Product was not made in Texas, he would not have purchased the Product, or would have paid significantly less for it." The suit further described the uniqueness of Texas food and flavoring before it suggested that the brand "trades on the reputation and fascination of Texas by giving consumers the impression that its Products are Texas-made, when the truth is, there is nothing 'Texas' about them." In reality, Texas Pete was created by the Garner family in North Carolina, where the brand is still based, as stated on the about page of the Texas Pete website. The company behind Texas Pete, Winston-Salem-based T.W. Garner Food Co., has until Nov. 10 to respond. The company told WGHP-TV in a statement: "We are aware of the current lawsuit that has been filed against our company regarding the Texas Pete® brand name. We are currently investigating these assertions with our legal counsel to find the clearest and most effective way to respond."[GN] TICKETMASTER ENTERTAINMENT: Consumer Settlement Hearing Set Dec 15 ------------------------------------------------------------------- Helena Hanson, writing for Narcity reports, reports that a class action lawsuit has been filed in Canada against Ticketmaster, and it's calling for compensation for people who purchased tickets to events impacted by the COVID-19 pandemic. According to a notice from legal firm Koskie Minsky LLP, the Ontario Superior Court of Justice has certified a class-action lawsuit against Ticketmaster Canada Holdings ULC, Ticketmaster Canada ULC, Live Nation Canada, Inc., and Live Nation Entertainment, Inc. The class-action lawsuit claims that customers who bought tickets to events impacted by the COVID-19 pandemic were entitled to "prompt refunds, in the original form of payment, under the terms of their contracts with Ticketmaster or under consumer protection laws." Ticketmaster denies allegations that they did not adhere to these terms and says that all customers were refunded or given the option to receive a refund by November 30, 2020. The entertainment company says this was the case for all but 12 events in Canada (excluding Quebec) that were either postponed or cancelled after March 11, 2020, as a result of pandemic restrictions. Narcity has reached out to Ticketmaster for comment. A response was not recieved by the time of publication. Ticketmaster class action lawsuit The class-action lawsuit has been filed on behalf of all Canadians who purchased at least one ticket to an event taking place after March 11, 2020, that was cancelled, postponed or rescheduled. This does not apply to events in Quebec. Although they have not admitted liability and the court has yet to make any determinations, Koskie Minsky LLP says Ticketmaster has agreed to a settlement with a total value of $137,545. "Under the terms of the Settlement, Ticketmaster will provide compensation in the form of a $5 electronic gift card to certain Credit Eligible Class Members for each eligible ticket purchased," the notice reads. An additional $100,000 will be used to pay for fees associated with the lawsuit, including counsel fees and disbursement. Any money leftover will be donated to a charity chosen by Ticketmaster. The settlement will only be valid once it is approved by the Ontario Superior Court of Justice. A hearing will take place on December 15, 2022. To be part of the class action, you don't have to do anything. Eligible people will automatically qualify for any benefits agreed upon per the settlement agreement. Many eligible Canadians have already been contacted about the proposed settlement via email, although more details can be found online. There's some good news if you did purchase tickets for an event in Quebec too, as a similar class action lawsuit against Ticketmaster is ongoing in the province. [GN] TRANSPORTATION INSURANCE: Taiclet Suit Dismissed With Prejudice --------------------------------------------------------------- In the case, PAUL A. TAICLET, on behalf of himself and all others similarly situated, Plaintiff v. TRANSPORTATION INSURANCE COMPANY, Defendant, Case No. 2:20-cv-01552 (W.D. Pa.), Judge Mark R. Hornak of the U.S. District Court for the Western District of Pennsylvania grants the Defendant's Motion to Dismiss. Paul A. Taiclet, DMD, a dentist licensed in Pennsylvania, alleges that his commercial property insurer, the Defendant, wrongfully denied its claims for business losses that it sustained due to the COVID-19 pandemic and/or government orders issued to mitigate the COVID-19 virus's spread. The Plaintiff's claims and supporting factual allegations the arguments that the Defendant has advanced in its Motion to Dismiss, and the arguments that the Plaintiff has advanced in opposing the Motion are all substantially similar to the claims, factual allegations, and arguments advanced by the parties in three other COVID-19 business interruption insurance matters before this Court and in a multitude of actions in state and federal courts -- In re: Erie COVID-19 Business Interruption Protection Insurance Litigation, No. 21-mc-1 (W.D. Pa. Oct. 14, 2022) and Hirschfield-Louik v. Cincinnati Ins. Co., No. 20-cv-816 (W.D. Pa. Oct. 14, 2022). At the times relevant to this litigation, the Plaintiff's commercial property insurance Policy with the Defendant provided that the Defendant will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from a Covered Cause Of Loss. As a result of the Mandated Shutdown Rules issued in response to the COVID-19 pandemic, on March 13, 2020, the Plaintiff closed his property "for provision of elective dental procedures," and on May 19, 2020, he reopened in a limited capacity to provide clinically necessary treatment in cases of non-urgent and non-emergent care. The Plaintiff provided timely notice to the Defendant of his claim for the interruption to his business. The Defendant denied his claim for coverage. The Plaintiff then filed this action, in which he seeks a declaratory judgment that his business interruption losses are covered under the policy and relief for the Defendant's alleged breach of contract in denying his insurance claim. On Oct. 25, 2021, the Defendant filed the pending Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The Plaintiff filed his Brief in Opposition to the Motion to Dismiss on Dec. 6, 2021, and the Defendant filed its Reply Brief on Jan. 7, 2022. Oral argument as to the Motion to Dismiss occurred on May 16, 2022. Judge Hornak finds that the terms of the Plaintiff's insurance Policy with the Defendant, the Plaintiff's factual allegations, and the Plaintiff's legal arguments are substantially similar to those in In re: Erie and in Hirschfield-Louik. Thus, for the reasons explained in the Opinions as to the Motions to Dismiss in those cases, the Plaintiff has not plausibly pleaded that the COVID-19 pandemic caused "direct physical loss of or damage to" his property such that Plaintiff was entitled to coverage for his business losses. Judge Hornak further concludes that given the basis for the Court's decision, the Plaintiffs could not amend their complaint to allege additional facts or law that would plausibly show that they are entitled to such coverage. Thus, any amendment to the Complaint would be futile. Accordingly, Judge Hornak grants the Defendant's Motion to Dismiss and dismissed these actions with prejudice. A full-text copy of the Court's Oct. 14, 2022 Memorandum Order is available at https://tinyurl.com/4yr8sbk4 from Leagle.com. TWITTER INC: Bids for Lead Plaintiff Appointment Due December 12 ---------------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of Twitter, Inc. (NYSE: TWTR). Stockholders have until the deadlines below to petition the court to serve as lead plaintiffs. Additional information about each case can be found at the link provided. Twitter, Inc. (NYSE: TWTR) Class Period: May 13, 2022 - October 4, 2022 Lead Plaintiff Deadline: December 12, 2022 On May 13, 2022, Elon Musk tweeted that a merger with Twitter was "temporarily on hold." Three separate notices terminating the merger between July 8, 2022 and September 9, 2022 falsely claimed that Twitter had breached the terms of the merger agreement by not giving Musk documents about Spam. On October 4, 2022, less than two weeks before he was set to go to trial in Delaware over the merger, Musk stated he would proceed with the Twitter buyout at the original $54.20 price, abandoning his prior positions and capitulating to Twitter. The announcement shocked the stock market and caused Twitter's stock price to increase by 22%. Twitter stock and bondholders who sold their Twitter securities earlier in the year based on Musk's false statements were damaged by selling at prices artificially depressed by Musk's false statements. The lawsuit charges that Musk violated Section 10(b) of the Securities Exchange Act of 1934 by issuing false statements about his purchase of Twitter, Inc., including termination notices that falsely claimed that Twitter had breached terms of the merger agreement and that a Material Adverse Event ("MAE") had occurred. The complaint alleges that Musk's statements were false because Musk was not entitled to due diligence and had in fact waived due diligence; Musk was well aware of the problem of bots and spam on Twitter, and there were no legally justifiable reasons for Musk to terminate the Merger. For more information on the Twitter class action go to: https://bespc.com/cases/TWTR About Bragar Eagel & Squire, P.C.: Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. Contact Information: Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Melissa Fortunato, Esq. (212) 355-4648 investigations@bespc.com www.bespc.com [GN] UBER TECHNOLOGIES: Mendel Must Post $1K Appeal Bond in James Suit ----------------------------------------------------------------- In the lawsuit entitled CHRISTOPHER JAMES, et al., Plaintiffs v. UBER TECHNOLOGIES INC., Defendant, Case No. 19-cv-06462-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California grants in part the Plaintiffs' request for an appeal bond and requires S. Patrick Mendel to post a $1,000 appeal bond. The Plaintiffs ask the Court to impose an appeal bond should S. Patrick Mendel, a settlement class member who is proceeding pro se, wish to pursue his objections on appeal. The underlying class action arose out of allegations that certain Uber and Uber Eats drivers were misclassified as independent contractors under California law. The Plaintiffs brought various wage and sick leave claims under the California Labor Code. Mr. Mendel, as a former driver for Uber, is a member of the class. At no point did Mr. Mendel seek to intervene in the case. On April 5, 2022, after two and a half years of litigation, the Court granted the Plaintiffs' motion for preliminary approval of the class action settlement. The Court set the fairness hearing for July 14, 2022. On May 27, 2022, Mr. Mendel filed an emergency temporary restraining order and sought a stay "to prevent the imminent murder, rape and assault of Uber drivers and passengers and an unjust settlement of valid claims against Uber" (Motion for Temporary Restraining Order, or "TRO Mot."). In his motion, Mr. Mendel argued that the Court should abstain from the case on the basis of Younger abstention doctrine "because the Attorney General of California is currently engaged in litigation in State Court over the very same labor and expense violations that are the subject of this dispute." Mr. Mendel also devoted several pages to his argument that Uber operated in violation of the Federal Motor Carrier Act and related regulations. As Mr. Mendel acknowledged in his briefing, this particular argument was not new: in a related case three years earlier, the Court rejected the same argument from Mr. Mendel because the alleged violations of federal and state law were "outside the scope" of the settlement agreement (quoting O'Connor v. Uber Techs., Inc., No. 13-cv-03826-EMC, 2019 WL 4394401, at *5 (N.D. Cal. Sept. 13, 2019), aff'd, No. 19-17073, 2019 WL 7602362 (9th Cir. Dec. 20, 2019)). On May 31, 2022, the Court denied Mr. Mendel's motion for a temporary restraining order due to insufficient information regarding Mr. Mendel's standing to intervene in the action. The Court further observed that Mr. Mendel had not shown either a likelihood of success or a serious question going to the merits of his claims that would warrant the relief that he sought. On June 9, 2022, when the Plaintiffs moved for final approval of the class settlement, they asked the Court to impose an appeal bond on Mr. Mendel based on his "gross misuse of the judicial system." The Plaintiffs noted that "most if not all of the issues raised by Mendel in his Objection have already been decided against him in other cases (all of them involving Mr. Mendel himself), and as such, he should be precluded from continuing to endlessly relitigate these questions." In addition to Mr. Mendel's various cases against Uber, the Plaintiffs alleged that Mr. Mendel had litigated a "wholly frivolous suit" against Class Counsel for malpractice. Based on Mr. Mendel's previous cases against Uber and Class Counsel, the Plaintiffs expressed their concern that Mr. Mendel would "attempt to hold the class hostage over his own personal grievances." On July 5, 2022, Mr. Mendel moved to dismiss the case on the basis of the Younger abstention doctrine. He also alleged that Uber was operating in violation of federal and state law. The Court exercised its discretion to construe Mr. Mendel's motion to dismiss as objections to the class settlement so that it could consider the merits of his arguments during the upcoming fairness hearing. On July 12, 2022, the Plaintiffs responded to Mr. Mendel's objections and explained why the Younger abstention doctrine did not apply. On July 21, 2022, during the hearing on the motion for final approval of the class settlement, the Court explained that it was overruling Mr. Mendel's objections because, for the reasons stated on the record, Younger abstention did not apply. The Court orally indicated during the hearing that it would require Mr. Mendel to show cause why he should not be required to post a bond as a condition of appealing the Order and Final Judgment. A few days after the hearing, the Court ordered Mr. Mendel to show cause why the Court should not require an appeal bond, should Mr. Mendel wish to pursue his objections on appeal. It specifically ordered Mr. Mendel to address (1) his financial ability to post bond; (2) the risk that he would not pay the costs if the appeal loses; and (3) an assessment of the likelihood that he will lose the appeal and be subject to costs. On Aug. 23, 2022, Mr. Mendel filed his response to the order to show cause, as well as a "motion to disqualify or recuse for judicial prejudicial bias upon pro se plaintiff." The majority of Mr. Mendel's response brief is dedicated to his theories that Uber operates in violation of federal transportation laws and that Judge Chen has exhibited bias against him. He did not address the risk that he would not be able to pay the costs if the appeal loses, nor did he address the likelihood that he would lose the appeal. As for his financial ability to post bond, Mr. Mendel alleged in his brief that he was "broke without funds or assets because he is now approaching 65 years of age and cannot secure viable career employment." He also alleged that the Ninth Circuit had granted him in forma pauperis status in September 2021. He did not provide any evidence to support his allegation that he currently lacks the financial ability to post an appeal bond. On Sept. 6, 2022, the Plaintiffs filed their response to Mr. Mendel's submission, in which they again urged the Court to impose an appeal bond. The question of whether to impose an appeal bond on Mr. Mendel is, thus, fully briefed and ripe for adjudication. The Plaintiffs seek an appeal bond of an amount between $5,000 and $10,000. Judge Chen notes that the appropriateness of a bond is analyzed in light of (1) the appealing party's financial ability to post a bond, (2) the risk that the appealing party would not pay costs, if the appeal fails, and the (3) the likelihood that the appealing party will lose their appeal, citing Fleury v. Richemont N. Am., Inc., No. 05-cv-4525 EMC, 2008 WL 4680033, at *6 (N. D. Cal. Oct. 21, 2008). In support of his argument that he cannot afford to post bond, Mr. Mendel alleged that he is "broke without funds or assets because he is now approaching 65 years of age and cannot secure viable career employment." The Plaintiffs contend that Mr. Mendel "has not made a strong showing regarding his financial ability to pay." The Plaintiffs note that Mr. Mendel did not include a sworn affidavit regarding his income and expenses that would permit the court to evaluate his claims of indigence. The Court agrees with the Plaintiffs that Mr. Mendel did not provide a strong showing as to his financial ability to pay an appeal bond. While Mr. Mendel's in forma pauperis status indicates that he had limited financial means as of June 2021, the Court was not provided with a declaration or other evidence that elucidated his financial status as of present day. Without some sort of evidentiary showing on this front, the Court cannot find that Mr. Mendel has established that he currently lacks the financial ability to post an appeal bond. Because Mr. Mendel could have and should have provided current evidence that revealed his current ability to pay an appeal bond, the Court concludes that this factor weighs only slightly against imposing an appeal bond. The second factor, risk of non-payment, weighs in favor of granting an appeal bond when collecting costs after a failed appeal would be difficult. The Court concludes that this factor is neutral. The Plaintiffs contend that the risk that Mr. Mendel would not pay the costs of appeal is high because he has shown a consistent disregard for court rules and procedures. The Court agrees with the Plaintiffs that Mr. Mendel has filed procedurally improper motions. The Court does not, however, find that such conduct necessarily demonstrates that Mr. Mendel will not pay the costs of an appeal, though it raises the specter of non-cooperation. The final consideration in determining whether an appeal bond should be awarded is the merits of the appeal in question. The Court agrees with the Plaintiffs that this factor cuts strongly in favor of requiring a bond. During the fairness hearing on July 21, 2022, the Court thoroughly considered Mr. Mendel's objections regarding Younger abstention and found them to be without merit. As such, the Court finds that Mr. Mendel is not likely to succeed on the merits of his appeal and this factor weighs decisively in favor of a bond. In sum: out of the three factors, the first factor weighs slightly against imposing an appeal bond, the second factor is neutral, and the third factor weighs strongly in favor of imposing an appeal bond. As a result, the Court concludes that an appeal bond is warranted. The Plaintiffs submit that the appropriate amount of the appeal bond is in the range of $5,000 to $10,000. The Plaintiffs specifically estimate that the costs of preparing the transcript of the final approval hearing and record on appeal, as well as attorneys' fees associated with the prosecution of the appeal are likely to amount to between $5,000 and $10,000 (if not more). The Plaintiffs did not, however, provide an attorney declaration or any other evidence in support of their cost estimate. Nor did the Plaintiffs provide any authority to support their theory that attorneys' fees could be included in an appeal bond under these circumstances, even though these costs are not included in Rule 39(e). In the absence of any evidence from the Plaintiffs indicating that their allowable costs for purposes of an appeal bond exceed this amount, the Court will exercise its discretion and impose an appeal bond in the amount of $1,000. A full-text copy of the Court's Order dated Oct. 10, 2022, is available at https://tinyurl.com/3f4fjtar from Leagle.com. VITAL PHARMACEUTICALS: Abbott Stayed Pending Bankruptcy Proceedings ------------------------------------------------------------------- In the case, BRENDAN ABBOTT, individually and on behalf of all others similarly situated, Plaintiff v. VITAL PHARMACEUTICALS, INC., d/b/a "VPX Sports," et al., Defendant, Case No. 4:22 CV 587 CDP (E.D. Mo.), Judge Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri, Eastern Division, stays the action as to Vital Pharmaceuticals during the pendency of its bankruptcy proceedings. Mr. Abbott brings this putative class action against Defendants Vital Pharmaceuticals and Does 1 through 10, alleging that the Defendants falsely, misleadingly, and deceptively marketed health-related products in violation of the Missouri Merchandising Practices Act. Abbott also brings claims of breach of contract, breach of implied warranty, and unjust enrichment. The Doe Defendants have not yet been served with process, and more than 90 days have passed since Abbott filed his amended complaint. Vital Pharmaceuticals has now filed a Suggestion of Bankruptcy, invoking the automatic stay provisions of 11 U.S.C. Section 362. In light of this notice and the resulting automatic stay, Judge Perry stays the action under 11 U.S.C. Section 362 as to Vital Pharmaceuticals during the pendency of its bankruptcy proceedings. No later than Dec. 14, 2022, and every 90 days thereafter, Vital Pharmaceuticals will file a status report on the bankruptcy proceedings and make an appropriate motion as to the extension, modification, or lifting of the stay. Within seven days of the termination of its bankruptcy proceedings, it will file with the Court a notice of such termination. Judge Perry denies without prejudice Vital Pharmaceuticals' Motion to Dismiss and Motion to Strike without prejudice to refiling after the stay is lifted. Mr. Abbott will show cause why his and the putative class's claims against Defendants Does 1 through 10 should not be dismissed without prejudice for failing to effectuate timely service. Failure to timely comply with the Order will result in the dismissal without prejudice of the Plaintiff's and the putative class's claims as to any unserved Defendant. A full-text copy of the Court's Oct. 14, 2022 Memorandum & Order is available at https://tinyurl.com/2szv2wev from Leagle.com. WALGREENS BOOTS: Securities Class Suit Over Rite-Aid Merger Pending ------------------------------------------------------------------- Walgreens Boots Alliance, Inc. disclosed in its Form 10-K Report for the fiscal year ended August 31, 2022, filed with the Securities and Exchange Commission on October 13, 2022, that the securities class action that arose from the merger agreement between Walgreens and Rite Aid is still pending in Pennsylvania. On December 11, 2017, purported Rite Aid shareholders filed an amended complaint in a putative class action lawsuit in the U.S. District Court for the Middle District of Pennsylvania (the "M.D. Pa. class action") arising out of transactions contemplated by the merger agreement between the Company and Rite Aid. The amended complaint alleges that the Company and certain of its officers made false or misleading statements regarding the transactions. The Court denied the Company's motion to dismiss the amended complaint on April 15, 2019. The Company filed an answer and affirmative defenses, and the Court granted plaintiffs' motion for class certification. Fact and expert discovery have concluded and summary judgement briefing is complete. In October and December 2020, two separate purported Rite Aid Shareholders filed actions in the same court opting out of the class in the M.D. Pa. class action and making nearly identical allegations as those in the M.D. Pa. class action (the "Opt-out Actions"). The Opt-out Actions have been stayed until the earlier of (a) 30 days after the entry of an order resolving any pre-trial dispositive motions in the M.D. Pa. class action, or (b) 30 days after the entry of an order of final approval of any settlement of the M.D. Pa. class action. Walgreens Boots Alliance, Inc. operates as a pharmacy-led health and wellbeing company. It operates through three segments: Retail Pharmacy USA, Retail Pharmacy International, and Pharmaceutical Wholesale. Walgreens Boots Alliance, Inc. was founded in 1901 and is based in Deerfield, Illinois. WALGREENS BOOTS: Settles Opioid Abuse Dispute w/ Florida for $683M ------------------------------------------------------------------ Walgreens Boots Alliance, Inc. disclosed in its Form 10-K Report for the fiscal year ended August 31, 2022, filed with the Securities and Exchange Commission on October 13, 2022, that it had entered into a settlement agreement with the State of Florida to resolve all claims related to the distribution and dispensing of prescription opioid medications across the Company's pharmacies in Florida for an estimated settlement amount of $683 million, and has made the first annual settlement payment of $97.4 million into escrow on June 17, 2022. The Company is among an array of defendants in multiple actions in federal courts alleging claims generally concerning the impacts of widespread opioid abuse, which have been commenced by various plaintiffs such as counties, cities, hospitals, Indian tribes, and others. In December 2017, the U.S. Judicial Panel on Multidistrict Litigation consolidated many of these cases in a consolidated multidistrict litigation, captioned In re National Prescription Opiate Litigation (MDL No. 2804, Case No. 17-md-2804), which is pending in the U.S. District Court for the Northern District of Ohio ("N.D. Ohio"). The Company is a defendant in the following multidistrict litigation (MDL) bellwether cases: * One case remanded to the U.S. District Court for the Northern District of California (City and Cnty. of San Francisco, et al. v. Purdue Pharma L.P., et al., Case No. 3:18-cv-07591-CRB). Following a bench trial, the court entered a liability finding against Walgreens in August 2022. The court has scheduled a second trial regarding remedies for November 2022 at which time the court will determine how much is to be paid. The Company has the right to appeal any judgment but is unable to predict the outcome relative to remedies or apportionment as well as the outcome of any appeal as the trial is ongoing. * Two cases in N.D. Ohio (Cnty. of Lake, Ohio v. Purdue Pharma L.P., et al., Case No. 18-op-45032; Cnty. of Trumbull, Ohio v. Purdue Pharma L.P., et al., Case No. 18-op-45079). In November 2021, the jury in that case returned a verdict after trial in favor of the plaintiffs as to liability, and a second trial regarding remedies took place in May 2022. In August 2022, the court entered orders providing for injunctive relief and requiring the defendants to pay $650.6 million over a 15-year period to fund abatement programs. The court found that the damages are subject to joint and several liability and as such made no determination as to apportionment. These decisions are currently on appeal. * One case remanded to the U. S. District Court for the Eastern District of Oklahoma (The Cherokee Nation v. McKesson Corp., et al., Case No. 18-CV-00056-RAW-SPS), which has since been remanded to the District Court of Sequoyah County, Oklahoma, in a decision that is on appeal. The court has indicated that trial will commence in March 2023. * Five additional bellwether cases designated in April 2021: (1) Cobb Cnty. v. Purdue Pharma L.P., et al., Case No. 18-op-45817 (N.D. Georgia); (2) Durham Cnty. v. AmerisourceBergen Drug Corp., et al., Case No. 19-op-45346 (M.D. North Carolina); (3) Montgomery Cnty. Bd. of Cnty. Commrs., et al. v. Cardinal Health, Inc., et al., Case No. 18-op-46326 (S.D. Ohio); (4) Board of Cnty. Commrs. of the Cnty. of Santa Fe v. Purdue Pharma L.P., et al., Case No. 18-op-45776 (D. New Mexico); and (5) Cnty. of Tarrant v. Purdue Pharma L.P., et al., Case No. 18-op-45274 (N.D. Texas). * Two consolidated cases in N.D. Ohio (Cnty. of Summit, Ohio, et al v. Purdue Pharma L.P., et al., Case No. 18-op-45090; Cnty. of Cuyahoga, Ohio, et al. v. Purdue Pharma L.P., Case No. 18-op-45004), previously scheduled for trial in November 2020 but postponed indefinitely. The Company also has been named as a defendant in numerous actions brought in state courts relating to opioid matters. Trial dates have been set in cases pending in state courts in the following states: * New Mexico (State of New Mexico, ex rel. Hector Balderas, Attorney General v. Purdue Pharma L.P., et al., Case No. D-101-cv-2017-02541, First Judicial District Court, Santa Fe County, New Mexico - September 2022, currently ongoing). * West Virginia (State of West Virginia, ex rel. Patrick Morrisey, Attorney General v. Walgreens Boots Alliance, Inc., et al., Civil Action No.20-C-82 PNM, Circuit Court of Kanawha County, West Virginia, - June 2023). * Michigan (State of Michigan, ex rel. Dana Nessel, Attorney General v. Cardinal Health, Inc., et al., Case No. 19-016896-NZ, Circuit Court for Wayne County, Michigan - February 2023). * Alabama (Mobile County Board of Health, et al. v. Fisher, et al., Case No. CV-2019-902806.00, Circuit Court of Mobile County, Alabama - scheduled for trial in January 2023, but currently stayed pending a petition to the Alabama Supreme Court). * Nevada (State of Nevada v. McKesson Corporation, et al., Case No. A-19-796755-B, Eighth Judicial District Court, Clark County, Nevada - April 2023). * Missouri (Jefferson County, Missouri v. Dannie E. Williams, M.D., et al., Case No. 20JE-CC00029, Twenty-Third Judicial Circuit, Jefferson County, Missouri - April 2024). * Florida (Florida Health Sciences Center, Inc., et al. v. Richard Sackler, et al., Case No. CACE 19-018882, Seventeenth Judicial Circuit Court, Broward County, Florida - October 2024). Two consolidated cases in New York state court (County of Suffolk v. Purdue Pharma L.P., et al., Index No. 400001/2017; County of Nassau v. Purdue Pharma L.P., et al., Index No. 400008/2017, Supreme Court of the State of New York, Suffolk County, New York) were resolved as to the Company in June 2021. The relief sought by various plaintiffs in these matters includes compensatory, abatement, restitution and punitive damages, as well as injunctive relief. In connection with these matters, the Company has engaged an expanded number of parties regarding possible resolution. Significant uncertainties remain. Additionally, the Company has received from the U.S. Department of Justice and the Attorneys General of numerous states subpoenas, civil investigative demands, and other requests concerning opioid-related matters. The Company continues to communicate with the Department of Justice with respect to purported violations of the federal Controlled Substances Act and the federal False Claims Act in dispensing opioid prescriptions at certain Walgreens locations. On May 5, 2022, the Company announced that it had entered into a settlement agreement with the State of Florida to resolve all claims related to the distribution and dispensing of prescription opioid medications across the Company's pharmacies in the State of Florida. This settlement agreement is not an admission of liability or wrong-doing and would resolve opioid lawsuits filed and future claims by the state and government subdivisions in the State of Florida. The estimated settlement amount of $683 million includes $620 million in remediation payments, which will be paid to the State of Florida in equal installments over 18 years, and will be applied as opioid remediation, as well as a one-time payment of $63 million for attorneys' fees. The Company made the first annual settlement payment of $97.4 million into escrow on June 17, 2022. In fiscal 2022, the Company recorded a $683 million liability associated with this settlement. The settlement accrual is reflected in the Consolidated Statement of Earnings within Selling, general and administrative expenses as part of the U.S. Retail Pharmacy segment. Walgreens Boots Alliance, Inc. operates as a pharmacy-led health and wellbeing company. It operates through three segments: Retail Pharmacy USA, Retail Pharmacy International, and Pharmaceutical Wholesale. Walgreens Boots Alliance, Inc. was founded in 1901 and is based in Deerfield, Illinois. WALT DISNEY: Platinum Pass Customers Sue Over Parks' Restrictions ----------------------------------------------------------------- Erin Shaak, writing for ClassAction.org, reports that a proposed class action lawsuit claims that Walt Disney Parks and Resorts has essentially used the COVID-19 pandemic as an excuse to "take advantage" of people who bought the higher levels of its annual passes. The 30-page case alleges that although consumers paid hundreds of dollars for Platinum and Platinum Plus passes -- which purportedly granted access to all four of Disney's Florida theme parks with no "blockout dates" for a one-year period -- passholders have been subjected to "a host of new restrictions" ever since the parks reopened in July 2020 amid the pandemic. Per the case, Platinum passholders believed these changes, which included a park reservation system and "park hopping" limitations, would "only be temporary" but have come to find that Disney has kept the restrictions in place even after the threat of the pandemic has lessened and the state of Florida no longer has COVID-19 mandates in place. According to the lawsuit, although Platinum and Platinum Plus passholders were told they would be able to access Disney's parks 365 days a year, many have been unable to make reservations on certain days even when single-day passes are still available for purchase. By refusing Platinum passholders even when the parks have not reached capacity, Disney has "directly contradict[ed]" its representation that the Platinum passes would not be subject to "blockout dates," the lawsuit alleges. Per the case, Disney is "doing nothing more than taking advantage" of its loyal Platinum pass customers, who "had no way of knowing" that the terms of their passes would be unilaterally changed to such an extent that they "do not even resemble the original agreement." "Disney's conduct is a predatory business practice, aimed at exploiting the customers who support it the most, its annual pass holders. Disney abused a global pandemic to take advantage of its own loyal customers and increase its revenue." "Unlimited access" Disney's Platinum and Platinum Plus annual passes were introduced in 2015 as a means for customers to pre-pay for essentially unrestricted access to Disney's Florida theme parks, including EPCOT, Magic Kingdom, Animal Kingdom and Hollywood Studios, the case relays. Both Platinum-level passes were distinct from the lower-level Gold and Silver passes in that they were represented as having no "blockout dates," meaning customers could use their passes every day of the year that the parks were open and not at maximum capacity, according to the complaint. The suit further notes that both Platinum passes allowed for "park hopping," i.e., visiting more than one of Disney's Florida parks in one day, which the complaint alleges is "one of the most sought-after and important features" of an annual pass given the flexibility it provides. The lawsuit claims all of this changed, however, when Disney shut down its parks in mid-March 2020 due to the COVID-19 pandemic. "Temporary" safety precaution? When Disney reopened its parks in July 2020, those hoping to visit the "happiest place on earth" were met with new restrictions that were seemingly put in place for safety reasons, according to the case. One such restriction was a new reservation system that required guests to make a park reservation for a specific day in addition to buying an admission ticket, the suit relays. The reservation system artificially limited each park's capacity such that Platinum and Platinum Plus passholders could no longer gain entry 365 days a year, according to the suit. The park hopping benefit was also restricted, the suit says, in that guests could only go to one park per day when they first reopened. In January 2021, Disney began allowing annual passholders to begin park hopping but only after 2:00 p.m. each day, according to the case. The lawsuit says that although Platinum passholders at first expected these changes to be temporary, Disney CFO Christine McCarthy stated earlier this year that the parks will not be returning to their pre-pandemic capacities -- meaning Disney intends to keep these new restrictions in place, according to the suit. "You shall not pass" The two plaintiffs, described in the complaint as "loyal customers of Disney," claim the benefits they believed they would receive with their Platinum annual passes have been substantially changed even after the threat of the pandemic has begun to wane. Per the suit, Disney issued a modification in the spring of 2020 that limited Platinum passholders to only three days of park reservations at a time. When the plaintiffs began planning a trip to Disney in May 2020 that was scheduled for November of that year, they realized they would be unable to use their Platinum passes for the nearly six months between May and November since they could only hold three reservations at a time, the case relays. After "dozens of phone calls to Disney," including one with a 13-hour hold period, the plaintiffs ultimately had to rebook their trip at a much higher price and could not even use their "next to useless" Platinum passes, according to the suit. The plaintiffs further claim that Disney has unfairly limited the number of Platinum passholders who can make a park reservation for a particular day even when the park has not reached capacity. One of the plaintiffs alleges, for instance, that while she and her significant other were planning a trip to Disney, the plaintiff, who had a Platinum Pass, was unable to obtain park reservations for certain days even though her significant other, who was using a multi-day pass, was able to make a reservation for those days. The other plaintiff says she also experienced blockout dates when she observed that ticketing kiosks at the parks appeared to be selling single- and multi-day tickets even though the parks were shown to be sold out of reservations online. "The issue in both scenarios was not that park reservations were unavailable, or that the parks had reached its full capacity, the problem was that Disney had decided to block out otherwise available park reservations so that they were only available to new purchasers and not Platinum Pass holders," the complaint reads, claiming Disney has been "unfairly favoring" single- and multi-day ticket holders "in order to make a larger profit." The case claims Disney never informed the plaintiffs and other Platinum passholders that it would "artificially decide" when park reservations would become unavailable to them. According to the suit, Disney has attempted to "cover-up its own wrong-doing" by phasing out its older annual passes, including the Platinum passes, in favor of new annual passes introduced in September 2021. Who does the lawsuit look to cover? The lawsuit aims to represent United States residents who held a Disney Platinum Pass or Platinum Plus Pass and were denied entry to one or more of Disney's Florida parks as a result of the actions alleged in the case. I was denied access. How do I join the lawsuit? There's usually nothing you need to do to officially "join" or be considered part of a class action lawsuit when it's first filed. The case will be litigated on your behalf, and if a settlement is eventually reached, that's when the people covered, called the class members, should receive notice of the settlement with instructions on how to file a claim for their share. [GN] [*] Ontario Court Proposes to Certify Suit Against Endoscopy Clinic ------------------------------------------------------------------- Medical Malpractice Lawyers.com posted that Ontario Superior Court proposes to certify a class action against an endoscopy clinic for unsanitized scopes. The Alleged Facts: The plaintiff is a former patient of an endoscopy clinic operated by the defendants in Ottawa between 2002 and 2011. Following an inspection by the College of Physicians and Surgeons of Ontario (CPSO) it was determined that infection control and prevention practices had not routinely been followed for endoscopic and biopsy equipment. The clinic was closed, and the matter was referred to the Medical Officer of Health. Consequently, in October 2011, Ottawa Public Health (OPH) began a notification program, advising former patients of the possible risk of infection and advising the recipients of the notice to be tested for HIV, hepatitis B, and hepatitis C. The plaintiff was among 6,800 former patients who were affected by that notice. Apparently, 95 percent of the former patients received the letter and 75 percent of those patients chose to undergo a blood test. The plaintiff was one of them. Some individuals who were tested did test positive for one of the blood-borne diseases, but after DNA analysis of the infections, OPH was unable to establish or confirm any transmission of infection within the clinic where the lapse occurred. Infections in the population of people who were tested may have been coincidental. The plaintiff did not test positive, and she does not assert that she was infected. Rather, she seeks compensation for exposure to an enhanced risk of infection and for the shock, trauma, and inconvenience inherent in responding to the public health notice. It is possible there may be members of the proposed class who did become infected and who believe the infection was acquired in the clinic, but that is not the focus of the litigation. The plaintiff alleges that all members of the proposed class suffered damage and are entitled to compensation whether or not the risk of infection materialized. The plaintiff sought to bring the proceeding on behalf of herself and all patients that were subjected to the risk of infection due to the failure of the clinic to properly sterilize instruments and follow protocols. The Superior Court of Justice - Ontario, stated in its Decision and Reasons dated July 12, 2022: "This is a case in which there was a mass wrong affecting thousands of individuals. Given the pleading and the focus on damages for exposure to increased risk, anxiety and the need to be tested as opposed to individual personal injury, damages for individual class members are likely to be modest. 6800 individuals with modest individual claims is almost an exemplar of the kind of case the Act was designed to capture. As described by the Supreme Court of Canada in Hollick, supra, the objectives of the Act are as follows. First, by aggregating similar individual actions, class actions serve the judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behavior to take full account of the harm they are causing, or might cause, to the public." If you or a family member acquired a serious infection following an endoscopic procedure, you should promptly consult with a local medical malpractice lawyer in your U.S. state who may investigate your possible endoscopy claim for you and represent you in a claim for compensation due to the injuries you suffered following an endoscopy. Click here to visit our website or telephone us on our toll-free line in the United States (800-295-3959) to find medical malpractice lawyers in your state who may assist you. Turn to us when you don’t know where to turn. [GN] [*] Third Circuit Vacated Order Denying FCRA Class Certification ---------------------------------------------------------------- PreEMPLOY reports that the Court of Appeals for the Third Circuit has recently vacated an order that denied class certification. The involved plaintiffs alleged that a consumer reporting agency (CRA) violated the Fair Credit Reporting Act (FCRA). As a result of the vacated order, the Third Circuit's ruling provides greater clarity on what conditions satisfy the requirements of Rule 23. In this case, inaccurate information contained within tenant screening reports provided by the defendant allegedly led to denied rental applications. Furthermore, the plaintiffs claimed that the CRA would not correct these inaccuracies. Instead, the CRA emphasized that it needed proof of these inaccuracies from its sources. According to the complaint, the CRA's disclosures failed to identify these sources. As a result, the plaintiffs claimed this conduct violated the FCRA, which requires CRAs to provide disclosures upon request of all information contained within their fail. Furthermore, they must share the sources of that information. Upon filing the complaint, a U.S. District Court for the Eastern District of Pennsylvania denied a motion of class certification for the plaintiffs. The judge found that they had failed to meet the predominance and ascertainability requirements of Rule 23. Thus, "[p]laintiffs will have to pursue their claims individually, not on a class-wide basis." After an investigation, the Third Circuit revealed that the lower court had made an incorrect ruling. For example, the Third Circuit found that the lower court misinterpreted Section 1681g(a) of the FCRA. According to the Third Circuit, the lower court believed a consumer must request a file, not a report, to trigger the statute's requirements. However, a generalized request is enough to satisfy the statute's file disclosure requests. Similarly, the Third Circuit found that the lower court made an incorrect decision on the ascertainability requirement for a Rule 23 class action. The lower court found no administratively feasible way to determine if individuals meet the class criteria. Instead, the lower court claimed it would require comparing records in two databases without a unique identifier. Furthermore, the lower court emphasized how lacking the unique identifier would require an individual review of each record. The Third Circuit disagreed, finding that a "yes-or-no" review of each record would be feasible. However, in previous cases, the Third Circuit has been more restrictive on what would meet the standards of feasibility for the ascertainability requirement; this could signal that the Circuit is viewing the matter more generously. Regardless, the Third Circuit's opinion should provide significant clarity regarding the standards through which it will judge whether a case meets Rule 23 requirements. [GN] Asbestos Litigation ASBESTOS UPDATE: The Travelers Cos. Has $1.39BB Net Reserves ------------------------------------------------------------ The Travelers Companies, Inc., has recorded net asbestos reserves of $1.39 billion and $1.41 billion at September 30, 2022 and 2021, respectively, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Travelers Companies states, "The Company has received and continues to receive a significant number of asbestos claims. Factors underlying these claim filings include continued intensive advertising by lawyers seeking asbestos claimants and the focus by plaintiffs on defendants, such as manufacturers of talcum powder, who were not traditionally primary targets of asbestos litigation. The focus on these defendants is primarily the result of the number of traditional asbestos defendants who have sought bankruptcy protection in previous years. The bankruptcy of many traditional defendants has also caused increased settlement demands against those policyholders who are not in bankruptcy but remain in the tort system. Currently, in many jurisdictions, those who allege very serious injury and who can present credible medical evidence of their injuries are receiving priority trial settings in the courts, while those who have not shown any credible disease manifestation are having their hearing dates delayed or placed on an inactive docket. Prioritizing claims involving credible evidence of injuries, along with the focus on defendants who were not traditionally primary targets of asbestos litigation, contributes to the claims and claim adjustment expense payment patterns experienced by the Company. The Company's asbestos-related claims and claim adjustment expense experience also has been impacted by the unavailability of other insurance sources potentially available to policyholders, whether through exhaustion of policy limits or through the insolvency of other participating insurers. "The Company continues to be involved in disputes, including litigation, with a number of policyholders, some of whom are in bankruptcy, over coverage for asbestos-related claims. Many coverage disputes with policyholders are only resolved through settlement agreements. Because many policyholders make exaggerated demands, it is difficult to predict the outcome of settlement negotiations. Settlements involving bankrupt policyholders may include extensive releases which are favorable to the Company, but which could result in settlements for larger amounts than originally anticipated. Although the Company has seen a reduction in the overall risk associated with these disputes, it remains difficult to predict the ultimate cost of these claims. As in the past, the Company will continue to pursue settlement opportunities. "In addition to claims against policyholders, proceedings have been launched directly against insurers, including the Company, by individuals challenging insurers' conduct with respect to the handling of past asbestos claims and by individuals seeking damages arising from alleged asbestos-related bodily injuries. It is possible that other direct actions against insurers, including the Company, could be filed in the future. It is difficult to predict the outcome of these proceedings, including whether the plaintiffs would be able to sustain these actions against insurers based on novel legal theories of liability. The Company believes it has meritorious defenses to any such claims and has received favorable rulings in certain jurisdictions. "Because each policyholder presents different liability and coverage issues, the Company generally reviews the exposure presented by each policyholder with open claims at least annually. Among the factors the Company may consider in the course of this review are: available insurance coverage, including the role of any umbrella or excess insurance the Company has issued to the policyholder; limits and deductibles; an analysis of the policyholder's potential liability; the jurisdictions involved; past and anticipated future claim activity and loss development on pending claims; past settlement values of similar claims; allocated claim adjustment expense; the potential role of other insurance; the role, if any, of non-asbestos claims or potential non-asbestos claims in any resolution process; and applicable coverage defenses or determinations, if any, including the determination as to whether or not an asbestos claim is a products/completed operation claim subject to an aggregate limit and the available coverage, if any, for that claim. "In the third quarter of 2022, the Company completed its annual in-depth asbestos claim review, including a review of policyholders with open claims and litigation cases for potential product and "non-product" liability. The number of policyholders with open asbestos claims and net asbestos payments were relatively flat compared to 2021. Payments on behalf of these policyholders continue to be influenced by an increase in severity for certain policyholders and a high level of litigation activity in a limited number of jurisdictions where individuals alleging serious asbestos-related injury, primarily mesothelioma, continue to target defendants who were not traditionally primary targets of asbestos litigation." A full-text copy of the Form 10-Q is available at https://bit.ly/3N2WGkK ********* 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 ***